Drafting Method of Divorce Reply in Ningbo

After the defendant receives a copy of the complaint in divorce proceedings, the first tangled question is often: should the defense be handed in? How do I hand it in? First of all, the conclusion says: the right of reply is legal, but "when and whether to submit a written reply" is strategic-in practice, most professional practices are not to submit a written reply before the hearing, but to leave the opinions to be expressed in court in the hearing, so as to prevent the plaintiff from making up the evidence after receiving the reply in advance. If the defendant does not want to divorce or wants to fight for mediation, he can express his attitude through a written reply. This paper focuses on the drafting method of the divorce defense, the advantages and disadvantages of the time of submission, and whether it can be "repented" after submission, and explains it article by article in combination with the current Civil Procedure Law and the Provisions of the Supreme People's Court on Evidence in Civil Proceedings.

1. legal framework: defense is a right, not a burden that must be fulfilled

first look at the current regulations. Article 128 of the the People's Republic of China Civil Procedure Law (as amended in 2023) stipulates that the people's court shall send a copy of the indictment to the defendant within five days from the date of filing the case, and the defendant shall file a reply within 15 days from the date of receipt. The defense shall record the name, gender, age, nationality, occupation, work unit, residence and contact information of the defendant; the name and residence of the legal person or other organization, and the name and position of the legal representative or the main person in charge. If the defendant files a reply, the people's court shall send a copy of the reply to the plaintiff within five days from the date of receipt; if the defendant does not file a reply, it shall not affect the trial by the people's court.

It should be noted that the early version of the law once compiled the defense clause into Article 113 (revised in 2007), and the current 2023 revised version has been adjusted to Article 128. The current article number shall prevail when citing in practice. In addition, Article 49 of the "Several Provisions of the Supreme People's Court on Evidence in Civil Proceedings" (Fa Shi [2019] No. 19) clearly states: The defendant shall submit a written reply before the expiration of the defense period, stating his opinion on the plaintiff's claim and the facts and reasons on which it is based.

Three meanings can be read from the provisions: first, the 15-day defense period starts from the date when the defendant receives a copy of the complaint. Failure to submit the defense within the time limit will not result in adverse procedural consequences, and the court will hear it as usual. Second, a copy of the defense will be sent to the plaintiff, that is to say, the other party must see what you write. Third, the defense is not only the defendant's right, but also the defendant's opportunity to participate in litigation and fix. Because of this, whether to submit, when to submit, how to write, has become a policy issue rather than a purely clerical issue.

2. do not hand in, when to hand in: trade-offs and four options.

Option 1: Submit a written defense before the trial. The advantage is that the "correct attitude" in the procedure allows the judge to understand the defendant's position before the court, which is suitable for the following situations: the defendant does not agree to divorce at all, hoping to fully express the emotional foundation, good will and specific plans through written materials; Or the case is simple, the facts are clear, and the written defense is conducive to saving trial time. The disadvantage is that a copy of the defense will be served on the plaintiff, and the plaintiff can adjust the claim and supplement the evidence accordingly-for example, if you admit a certain property source in the defense, the plaintiff will be able to prepare the rebuttal materials in a targeted manner before the court, which is tantamount to exposing the card in advance.

Option 2: Do not submit a written reply and reply in court during the trial. This is a common strategy when the plaintiff's claim is relatively strong and the confrontation between the two parties is obvious. During the hearing, the judge will inevitably give the defendant the opportunity to state and reply, and the plaintiff cannot skip it. The poor information in the court defense may catch the other party off guard and make it difficult to supplement the evidence in front of the court. For divorce cases, in most cases, the two parties will not prepare a large amount of new evidence for the lawsuit. The focus of the dispute is whether the relationship is broken, custody and property division. The oral defense in court is enough to express clearly.

Option 3: Submit a short description of the nature of the "main points of the reply. Not only does it not reveal all the ideas, but it also indicates the attitude of responding to the lawsuit, stating "do not agree to divorce/agree to divorce but have objection to x" and the basic reasons, and the details will be left to the trial.

Option 4: After entrusting the agent, the agent determines the rhythm. If there is an agent ad litem in a divorce case, the person shall still appear in court except if he cannot express his intention; if he is indeed unable to appear in court due to special circumstances, he must submit a written opinion to the court. The strategy should respect the agent's case-based procedural arrangements.

It is necessary to remind the particularity of divorce cases: divorce proceedings are status litigation, and court mediation is a legal procedure (article 1079, paragraph 2, of the civil code). if the defendant does not agree to divorce, he should express his good will in writing or in court and put forward specific rescue plans (such as separation arrangement, economic improvement plan and family conflict resolution path), often more than the simple "disagree" three words can affect the judge's judgment on whether the relationship is broken.

3. Drafting Methods: Content, Structure and Key Points of Writing

once it is decided to submit a written defense, the text should generally include the following contents: ① the basic information of the respondent and the respondent (plaintiff); ② the clear attitude towards the plaintiff's claim-all agree, part agree or disagree; ③ the defense of the factual part: which agree and deny the facts stated by the plaintiff, and the denial part should give the facts and basis of its own version; ④ the source of evidence and evidence; ⑤ Legal basis; ⑥ Request for reply (please the court reject the plaintiff's claim or make a favorable treatment);⑦ Name of the court, signature and date of the respondent.

In the factual defense part, you can ask yourself item by item according to the plaintiff's claim and answer: the plaintiff asked for a divorce, do you agree? What is the reason for disagreeing-what is the emotional basis, the cause of the contradiction, and the possibility of peace? Are the facts stated by the plaintiff true? What is the real situation and is there any evidence for the part that is not true? Is the child support scheme claimed by the plaintiff agreed? If you don't agree, what is your plan and reason? Is the plaintiff's property division request approved? What are the reasons for disagreement (source of property, contribution, debt burden)?

In the legal defense part, the law cited by the plaintiff indicates whether its applicable premises are met. For example, if the plaintiff sues for "emotional breakdown", the defendant can combine the legal circumstances listed in article 1079 of the civil code (bigamy or cohabitation with others, domestic violence or abuse and abandonment, gambling and drug abuse and other bad habits, separation for two years due to emotional discord, etc.) to show that the case does not conform to any of the circumstances and the relationship has not yet broken down.

There are several experiences in writing: the length does not need to be long, the focus of the dispute should be grasped, and the emotional catharsis in the form of a running account should not be avoided; The facts are expressed in a consistent manner to avoid contradiction with the subsequent court hearing statements. Any content involving "recognition" must be cautious-the fact clearly recognized in the reply may constitute self-admission in litigation.

Can I go back on my word after the 4. is submitted: the attitude can be changed, and the facts cannot be turned over.

Things are often repeated: agree to divorce in the defense, and then want to recover, or agree to a fact in the defense, and want to overturn in the trial, OK? The answer is to look separately.

First, "whether to agree to divorce" is an attitude. The parties' agreement to divorce in the pleading or court hearing only shows their attitude at that time and does not belong to the recognition of the facts of the case. The law allows changes-agree today and go back on their word tomorrow. The court cannot conclude that the feelings have indeed broken down and still needs to make a comprehensive judgment on the whole case. Article 74 of the original "Provisions on Evidence in Civil Proceedings" has been integrated into Article 3 in the 2019 revised "Provisions on Evidence in Civil Proceedings" with regard to "recognized facts and recognized evidence": In the course of litigation, if one party states facts that are unfavorable to itself or explicitly admits facts that are unfavorable to itself, the other party does not need to prove them; in the process of evidence exchange, inquiry, investigation, or in written materials such as complaint, defense, agency, etc., the parties clearly admit the facts that are unfavorable to themselves, the same applies. In other words, "attitude" is not included in it and can be changed.

Second, the admission of facts in the pleadings should be taken seriously. Once the written admission of "received the other party's transfer", "joint contribution after marriage" and other unfavorable facts, the other party can be exempted from proof, the judge will be used as the basis for the determination. The source of property, proportion of capital contribution, marital fault and other statements written in the pleadings may be directly quoted by the other party in the trial cross-examination, and must be considered word for word.

Third, there is another procedure for estoppel: if estoppel involves the claim itself (for example, this reply does not agree to divorce and then decides to agree), it can directly change its opinions in the court hearing, and the court will continue to hear according to the changed opinions; If it is found that it is necessary to make a counterclaim (such as asking the other party to pay alimony, dividing common property, etc.) during the defense period, it shall be made within the legal time limit, late may require a separate prosecution.

5. defense and evidence in court: don't let procedural details drag you down.

The final presentation of the plea is in court. Three points should be paid attention to in the defense in court: first, focus on the focus of the dispute summarized by the judge, first indicate the overall attitude (whether to agree to divorce), then respond to the plaintiff's request and facts item by item, so as to avoid retelling the emotional history from the beginning; Second, the facts stated should correspond to the submitted evidence one by one. When it comes to "having a transfer record" and "having a chat record", the evidence number should be pointed out simultaneously; third, pay attention to tone and identity positioning-divorce judges also have to judge whether the conflict between the two parties is adjustable and who is more suitable to raise children directly. Emotional attacks on the other party will detract from the credibility of the statement.

Parallel to the defense is the presentation of evidence. After the defendant receives a copy of the complaint, the court usually serves the Notice of Proof at the same time, stating the time limit for proof. The common defendant's evidence in divorce cases includes: those who do not agree to divorce (basic evidence of feelings: records of marriage and love process, photos of living together, and records of communication with good efforts); Involving property (real estate certificate, bank flow, transfer record, capital contribution certificate, debt certificate); involving maintenance (proof of income, living conditions, children's wishes). Late proof may face the adverse consequences of evidence not being accepted or admonished or fined (in accordance with the provisions of the Supreme People's Court on the time limit for proof of evidence), and those who have real difficulties should apply for an extension before the expiration of the time limit. No matter how the defense strategy is chosen, it should not affect the completion of the proof by deadline, and the procedural risk is least worth gambling with "strategy.

There is also a detail that is often overlooked: divorce cases involve personal privacy, and the defendant can apply for a closed trial in accordance with the law; if the custody of minor children is involved, the court will listen to the true wishes of children over the age of eight (1084 of the Civil Code), and the child's opinion expression should be respected in defense and trial, rather than forcing the child to stand in line. If you are concerned about the transfer of property by one party during the litigation period, you can simultaneously assess whether to apply for property preservation during the defense period, and put the "defense" and "protection" in the same response plan.

6. FAQ

will you lose the case directly if you don't file a reply?

It won't. The law stipulates that if the defendant does not submit a defense, it shall not affect the trial of the people's court. The price of not submitting a written reply is only that the plaintiff and the judge did not understand your position before the court.

The fact is admitted in the reply, can you change your mind?

The written admission of one's own unfavorable facts belongs to self-admission in litigation, and the other party is exempted from proof. It is difficult to overturn the contrary evidence of supply and demand. Attitude issues such as "whether to agree to divorce" are not self-admission and can be changed.

Does a defendant in a divorce case have to appear in court in person?

If there is an agent ad litem in a divorce case, he should still appear in court except that he cannot correctly express his meaning; if he is unable to appear in court due to special circumstances, he must submit a written opinion to the people's court, otherwise the court may be absent from the trial.

Can I make a counterclaim during the defense period?

You can. If the defendant makes a counterclaim within the period of defense, the court shall generally hear the case together; if the counterclaim is made after the period of defense, the court may decide whether to hear the case together or inform the court to prosecute separately. The counterclaim should be an independent claim around the same marital relationship.

Do I have to reply within 15 days after receiving a copy of the indictment?

You don't have. The 15th is the legal defense period, and failure to submit it within the time limit will not affect the trial. However, if you need to complete counterclaims, jurisdictional objections and other procedural actions within the defense period, you must raise them within the time limit. Jurisdictional objections are especially required by the statute of limitations.