Ningbo Divorce Agreement Model and Seven Legal Points
How can a divorce agreement be drafted to be more comprehensive? Many people, when drafting a divorce agreement, focus only on property division and child custody issues. In fact, the following matters also require attention and should not be overlooked or omitted:
- Disputes over household registration are not within the jurisdiction of the courts, nor do public security organs have the authority to intervene. For procedures involving the transfer of household registration (hukou) for one party or the child, both parties must cooperate and provide the original household registration book and relevant supporting documents in order to process the application. Therefore, the agreement should specify the legal liabilities for failing to transfer one’s household registration or for failing to cooperate with the relevant procedures, thereby binding the parties involved.
Surname Processing
If both parties agree to change the child’s surname, this should be clearly stated in the divorce agreement, so that neither party can subsequently seek a court order to restore the original surname. If one party is worried that the other party will change the child's surname, it can be made clear in the divorce agreement that one party shall not change the child's surname without authorization and agree on a full amount of liquidated damages or other liability for breach of contract, which can effectively limit the other party's behavior and minimize litigation.
Article 59 of the Judicial Interpretation (I) of the Marriage and Family Chapter of the Civil Code: Parents shall not refuse to pay child support on the grounds that the child has changed their surname. Where one parent unilaterally changes the child’s surname to that of the stepmother or stepfather, thereby giving rise to a dispute, the court shall order the restoration of the original surname.
Handling of Compensation, Damages, and Debts Between Spouses
If any of the following circumstances exist, you should negotiate with the other party on how to handle them and specify the arrangements in the agreement: during marriage:
(1) Borrowing Article 82 of the (I) of Judicial Interpretation of Marriage and Family of Civil Code The conclusion of a loan agreement between husband and wife, lending the common property of husband and wife to one party to engage in personal business activities or other personal affairs, shall be regarded as the act of disposing the common property of husband and wife agreed by both parties, and the divorce can be handled according to the agreement of the loan agreement.
(2) Compensation Article 1088 of the Civil Code If one of the spouses has more obligations due to raising children, taking care of the elderly, assisting the other spouse in work, etc., he has the right to ask the other spouse for compensation when divorcing, and the other spouse shall give compensation. The specific measures shall be agreed upon by both parties; if no agreement is reached, the People’s Court shall make a judgment.
(3) Assistance in Cases of Financial Hardship Article 1090 of the Civil Code: At the time of divorce, if one party is experiencing financial hardship, the other party who has the capacity to provide support shall render appropriate assistance. The specific measures shall be agreed upon by both parties; if no agreement is reached, the People’s Court shall make a judgment.
(4) Compensation for Fault Damages Article 1091 of the Civil Code If one of the following circumstances leads to divorce, the innocent party has the right to claim compensation for damages: (1) Bigamy; (II) cohabitation with others; (III) domestic violence; (IV) abuse and abandonment of family members; (V) other serious faults.
(5) Disposition of real estate without authorization The judicial interpretation of the Marriage and Family Section of the Civil Code Article 28 (I) If one party sells the house shared by the husband and wife without the consent of the other party, and the third party buys in good faith, pays a reasonable consideration and goes through the property right registration procedures, and the other party claims to recover the house, the people's court will not support it. If one spouse, without authorization, disposes of jointly owned property in the form of a house, thereby causing loss to the other spouse, the people’s court shall support the other spouse’s claim for compensation upon divorce.
Agreement on maintenance
Unless the parties have made special agreements, according to the law, child support shall include three components: living expenses, education expenses, and medical expenses. Vaguely stipulating the amount of child support often results in inequity for both the custodial parent and the child. It is suggested that both parties agree to pay a certain amount of living expenses every month, which will increase year by year (agree on a specific proportion). Education expenses, medical expenses and large expenses (such as children must bear external responsibilities) will be shared equally by both parties according to the actual amount.
Two situations where property is not divided
(1) The statement “no division of joint property” does not preclude a post-divorce lawsuit seeking the division of joint property, and there is no statute of limitations on such claims.
Article 83 of the Judicial Interpretation (I) on Marriage and Family of the Civil Code After a divorce, if one party sues the people's court for division on the grounds that there is still a common property of the husband and wife that has not been disposed of, the people's court shall divide the property according to law after examination that the property is indeed the common property of the husband and wife that was not involved in the divorce.
(2) The provision stating that “each party’s property shall remain the sole property of that party” means that, following divorce, neither party may subsequently claim a division of such property; neither has any right to demand a share. It is highly unfair for the party who is economically disadvantaged or who is unaware of their spouse’s true financial situation to lose the right to seek a division of marital property in the future. Therefore, the parties should list all the common property, one by one to write clearly which party belongs to or how to deal with, never in short, big. A momentary lapse in judgment or the pursuit of convenience can easily result in significant financial losses.
It is advisable to have both prenuptial agreements and divorce agreements notarized.
According to Article 32 of the judicial interpretation (I) of the Marriage and Family Code of the Civil Code and Article 658 of the Civil Code, except that the notarized gift or the gift with moral obligation and public welfare nature cannot be revoked, in other cases, the donor can revoke the gift before the right of the gift property is transferred. Generally speaking, gifts within a family do not involve moral obligations or public-interest considerations; therefore, notarization becomes the sole means by which the recipient can ensure that they will actually receive the gifted property.
Notarization is of great significance, even indispensable. The parties shall notarize the divorce agreement or marital agreement (unless the divorce or transfer of ownership is handled immediately) to avoid future troubles.
How to Deal with "Divorce Agreement Can Regret"
The judicial interpretation of the Marriage and Family Code of the Civil Code (I) Article 69 of the property and debt settlement agreement reached by the parties on the condition of divorce by agreement or divorce mediation in the people's court. If the divorce is not completed and one party repents in the divorce proceedings, the people's court shall determine that the property and debt settlement agreement has not taken effect and make a judgment in accordance with Articles 1087 and 1089 of the Civil Code according to the actual situation.
For this important new regulation, two points should be noted:
(1) For property agreements that are beneficial to one's own party, one can sign an internal engagement agreement without the word divorce and the meaning of divorce, so that the other party cannot request to overturn it.
(2) It can be clearly agreed in the divorce agreement that even if the agreement fails to divorce, the content of the agreement is still valid, and both parties shall not go back on their word. The divorce agreement is also applicable in the litigation divorce. The parties in civil legal relations choose or exclude the application of the law on the validity of the agreement, reflecting the principle of freedom of contract and disposition. This agreement belongs to the autonomy of the parties and should be recognized by law.
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Divorce Agreement (Model)
Male: ××, born on the day of ××, year of ××, lives in ××× Road, ×× City, and ID number: ××××××××××××××××××××××××××××× × × × × × × × × × × × × × × × × × × × × × × × × × × × × × × × × × × × × × × × × × × × × × × × × × × × × × × × × ×.
Woman: born on the day of the year of the year of the year of the year of the year of the year of the year of the year of the year of the year of the date of the date of the date of the date of the date of the date of the date of the date of the date of the date of the date of the date of the date of the date of the date of the date of the date of the date of the date of the date of the date of the date of the date of the date of the date of the date of the date of the date of the date.
The male and female parties registered their marriage at the ×× Civil Affairs Bureau (Office) on × month ×, ××××. Due to the disagreement between the two parties to the agreement, the couple's relationship broke down and they could not continue to live together. There was no possibility of peace. The parties hereby agree on the voluntary divorce as follows:
1. In order to avoid rash divorce and impulsive divorce and maintain family stability, both men and women will divorce voluntarily through equal consultation. Both parties promise that within 30 days from the date of receipt of the divorce registration application by the marriage registration authority, if either party does not want to divorce, the divorce registration application may be withdrawn. Within 30 days after the expiration of the cooling-off period, both parties shall apply in person to the marriage registration office for the issuance of a divorce certificate.
note: in order to reduce rash divorce and impulsive divorce, and maintain family stability, the civil code of marriage and family set the "divorce cooling-off period" clause. Simply put, the process of divorce by agreement will become:(1) Submit an application: The husband and wife negotiate and submit an application for divorce registration to the Civil Affairs Bureau. (2) Cooling-off period of 30 days: Wait for 30 days. If either party is unwilling to divorce within 30 days, it can withdraw the divorce registration application to the Civil Affairs Bureau, and the divorce agreement has not been reached. If none of the applications have been withdrawn, proceed to the next step. (3) Thirty-day decision period: Within the next thirty days, both parties must jointly and personally apply to the marriage registration authority for a divorce certificate. If both parties fail to apply for a divorce certificate in person to the marriage registration authority within the second 30 days, the application for divorce registration shall be deemed to have been withdrawn. For impulsive divorce parties, the divorce cooling-off period can give both parties the opportunity to think carefully again.
Both parties of the 2. promise that there is no such situation as domestic violence that is not suitable for the cooling-off period of divorce. Voluntary divorce is the result of calm thinking and proper choice of both parties, which can not only guarantee the freedom of divorce of both parties, but also ensure that both parties make correct choices. Both parties comprehensively consider and make relevant plans to protect the interests of minor children and other family members of both parties.
Both parties of the 3. promise that they have fulfilled the obligation of truthful, proper and complete notification before marriage, and there is no situation that the basic relationship of marriage is invalid or revocable due to concealment of major diseases before marriage.
1. child support
Both male and female have a [son/female], whose name is [] and ID number is: []: 【].
2. Both parties agree that the son/daughter ×× shall be raised by the woman, and the man shall pay the fixed maintenance fee of ××× yuan every month, which shall be paid before the date of ×× every month until the child has completed his college degree, and the man agrees to increase the fixed maintenance fee by []% every three years. The child's medical expenses, tuition fees, class counseling fees and other expenses shall be borne by each party by 50%, and the man shall pay within one month after the woman presents the above-mentioned expense bill.
Note: It should be noted here that the fixed alimony and the alimony of large expenditure should be clearly defined. In addition, at present, many children will go to college or even graduate school, and the payment period of alimony is recommended not to take adulthood as the standard, but to complete a special degree as the standard, otherwise the court generally supports the child's adulthood.
3. Under the condition of not affecting the children's study and life, the man can visit the children raised by the woman at any time, every month/[] times. However, the woman shall be notified [] days in advance to negotiate the specific location and transportation method. If the child is older than [] years old, the child's opinion should be sought. With the child's consent, the number and time of visits can be appropriately extended, but the maximum should not exceed [] days. If the woman obstructs the man from exercising the right of visitation without justifiable reasons, she shall bear [] compensation.
4. The money and pure gold pendants and other jewelry currently in the account of [] belong to the child. On the date of signing this agreement, the bank card and related articles should be handed over to the woman for safekeeping. The woman guarantees to use them for the benefit of the child and shall not misappropriate them without authorization.
Division of 2. property
1. [Deposit] Since the existence of the marriage relationship between the two parties, there is a total deposit of [] yuan, the man's account is [] yuan, and the woman's account is [] yuan. Both parties agree that the [] party will give [] yuan to the [] party within 3 days from the date of signing this agreement.
2. [Real Estate] The common property of both parties is a set of commercial house located in XXX Room of XXX Road, XXX Community, with a value of RMB XXX Yuan. Now it is owned by the woman through negotiation, and the woman will pay the man XXX Yuan in cash within 7 days after the signing of this agreement. The household appliances and furniture in this house are owned by the woman XXX. The formalities for the change of the owner's name of the title certificate shall be handled within one month after the divorce, and the man must assist the woman in handling all the formalities for the change, and the transfer fee shall be borne by the woman.
Note: There are many forms of real estate division. Generally speaking, if there is only one house, one party takes the house and the other party gives monetary compensation, or sells the house and divides the house price. It should be noted here that if the housing loan has not been paid off, the bank or the real estate registration center may not be able to handle the title certificate renaming procedures. It is recommended to consult the bank and the local real estate registration center in advance. If the change is not possible, the parties shall negotiate to extend the registration procedures for the change of property rights, or otherwise divide the property.
In addition, it is quite popular to give the property to the children at present, and handle the transfer formalities when the children are adults. Before the children are adults, the party who raises the children has the right of residence. Such division is possible and the gift is generally irrevocable. However, the child has a long adult cycle. After the other party has a new life partner, they will often live in the house together, which is easy to cause disputes. Therefore, this division method should be carefully considered, but there should be a detailed agreement on the right to use the house.
[Hukou] The man should move out of the hukou within [] months.
Note: After divorce, the household registration can be transferred to the place where the real estate is located or to the immediate family members. Generally, the residence registration book, divorce certificate, real property right certificate, relative relationship certificate or police investigation certificate and other valid certificates can be obtained at the police station window of the moving place. If one of the parties is unwilling to hand over the original household registration book, and the police station is mobilized and persuaded to be invalid, the household registration or transfer procedures may be handled in accordance with the judgment or mediation statement, and the date and reason for the household registration shall be indicated on the household registration book.
4. [Vehicle] At present, both parties have a [] brand car with the license plate number of [], which is registered in the name of the woman. The car will be owned by the man after divorce, and the man will make a one-time compensation of [] yuan to the woman, which will be paid within [] days from the date of signing this agreement. The woman will cooperate with the man to go through the change registration procedures within one month after receiving the compensation.
Note: Since the second-hand sale of vehicles tends to have a large depreciation, it is recommended to adopt a division method that one party takes the car and the other party gives appropriate monetary compensation. If the vehicle registrant takes the vehicle, there is no need to change the procedure, and the clause can be simplified.
5. [Equity] The []% equity of the [] company held by the man still belongs to the man after the divorce, and the man will pay the woman [] yuan compensation, which will be paid in one lump sum within [] days after both parties receive the divorce certificate.
Note: The relatively simple division method of holding shares by one party and obtaining compensation by one party is still adopted here. Considering that the direct division of shares involves more professional issues such as the consent of more than half of other shareholders, the preemptive right, the registration of equity changes, and the control of the company's operation right, it is suggested that those who need this aspect should not use the model, and it is safer to find a professional lawyer to formulate the division scheme according to the situation.
6. [Virtual Property] The network account of each network platform with property interest belongs to the [] party, and can continue to use the original name, and pay the other party no less than the corresponding income yuan every quarter or year, and at the end of each year, the other party should be paid dividends according to []% of the official statistical income of the platform.
Note: Article 127 of the Civil Code explicitly states that network virtual property is also property. Bitcoin, Alipay accounts, online games in all kinds of equipment, online shops, the acquisition of network property, often through the holder's labor, real property (such as the purchase of game point cards), market transactions (such as the sale of game equipment between players), with general commodity attributes, should be equally protected.
3. Debt Division
Both parties confirm that the following debts are marital joint debts:
, a loan of RMB xxx ten thousand yuan was borrowed from [];
year, [Month], a loan of RMB xxx ten thousand yuan was borrowed from [Entity];
Year [#], Month [#], borrowed RMB xxx ten thousand yuan from [#];
With respect to the aforementioned joint debt of the spouses, each party shall be responsible for 50% upon its maturity. Going forward, if any additional debts are discovered, the party in whose name the debt is registered shall be solely responsible for it, and the other party shall bear no liability. If the man/woman is liable due to the man/woman's external borrowing, one party can recover the full amount from the other party at any time after the payment is completed. If the payment is overdue, the interest shall be paid at the annual interest rate of []%.
Note: The Civil Code clearly defines the scope of marital joint debts. Therefore, in principle, individual debts are no longer presumed to be marital joint debts, and generally neither party is required to assume the other’s debts. However, to avoid the actual joint debt of the husband and wife, but in the name of the individual debt, in the agreement agreed that the debt is the joint debt of the husband and wife, can avoid one party to repay the debt alone and can not recover.
4. Property shall not be transferred or concealed.
The division of property under this agreement is based on the aforementioned assets. Neither party shall conceal, misreport, or transfer any marital joint property or premarital property. If either party conceals or falsely reports any property other than the above-mentioned property, or transfers or withdraws any property within two years before the signing of this Agreement, the other party shall have the right to obtain all the shares of the property concealed, falsely reported or transferred by the other party after discovery, and shall be investigated for the legal responsibility of concealing, falsely reporting or transferring the property, and the party shall not have the right to divide the property.
5. Liability for Breach of Contract
If either party fails to fulfill the payment obligation within the time limit stipulated in this agreement, it shall pay liquidated damages according to the annual interest rate of []%, and compensate the other party for other losses (including but not limited to legal fees, attorney's fees, notary fees, appraisal fees, assessment fees, travel expenses, etc.).
6. Address for service
The mailing addresses of both parties (parties) specified in this agreement can be used as the address for service of payment reminder, statement of account and litigation documents. If the address specified is wrong or the changed address is not informed in time, and the relevant documents and litigation documents are not actually received and delivered by mail, the date when the relevant documents and litigation documents are returned shall be regarded as the date of service.
Man's address:
Female party's address:
Note: Currently, the rate of defendants failing to appear in lawsuits is very high, and courts generally face the challenge of “difficulty in serving legal documents.” When courts mail relevant legal documents to defendants (typically borrowers, guarantors, etc.), such mailed service is often returned due to reasons such as “no one found at the original address,” “new address unknown,” or “original address unclear.” If service on the defendant is impossible, the court often resorts to service by public notice. Public notice service can significantly prolong the litigation period; with this provision, that issue can be avoided.
7. Agreed jurisdiction
In the event of any dispute arising during the performance of this Agreement after its entry into force, the parties shall endeavor to resolve it through consultation. If no settlement is reached through consultation, either party may bring a lawsuit before the XXX People’s Court.
8. Number of copies of the agreement and its effective date
This Agreement is executed in triplicate and shall become effective as of the date on which the marriage registration authority issues the Divorce Certificate. Each party shall hold one copy, and one copy shall be filed with the marriage registration authority.
The man:
Female party:
×××× year ×× month ×× day