How to calculate the statute of limitations for property division after divorce in Ningbo

After the divorce, it is found that the property has not been divided, or it is found that the other party has transferred or concealed the property that year, and whether it can be prosecuted depends on two paths. If it belongs to the joint property of husband and wife that has not been dealt with at the time of divorce, the request for division is generally not subject to the limitation of action; if one party hides, transfers, sells, destroys or squanders the joint property, the three-year limitation of action shall apply to the request for division again, which shall be calculated from the date of discovery by the parties.

In addition, there is a third situation that is easy to be confused: after the divorce by agreement, the property division clause is reversed, the change or revocation is requested, and the path of revocation is taken, subject to the one-year exclusion period, and the period is not suspended or interrupted. Mixing these three types of rules together is the most common judgment error in practice.

1. legal basis

article 196 of the Civil Code stipulates that the provisions of the statute of limitations shall not apply to the request for the return of property by the right holder of real property rights and registered movable property rights. The joint property of the husband and wife that is not divided at the time of divorce is still in a state of common ownership in essence, and one party's request for division belongs to the right of claim for division of common property, so it is not eliminated by the passage of time.

Article 1092 of the Civil Code stipulates that if one of the spouses hides, transfers, sells, destroys, or squanders the joint property of the husband and wife, when the divorce divides the joint property of the husband and wife, the party may be divided less or not; after the divorce If the other party discovers the above-mentioned acts, it may file a lawsuit in the people's court and request for another division. Article 84 of the (I) of interpretation of marriage and family further clarifies that the limitation period of action for the right of claim is three years, calculated from the date of discovery of the party concerned.

Article 83 of the (I) of interpretation of marriage and family stipulates that after divorce, one party sues for division on the ground that there is still common property of husband and wife that has not been disposed of. After examination, the property is indeed the common property of husband and wife that was not involved in the divorce, and the people's court shall divide it according to law, which is also the direct basis for the non-division of property without limitation.

2. core points

1. Different rules apply to undivided property and transferred property

the demarcation between the two is whether the property has been disposed of at the time of divorce. The property that is not touched by the divorce agreement or judgment at all belongs to the unprocessed property, and the request for division of the common property is not subject to the limitation of action. If the division has been completed, but one party later discovers that the other party concealed part of the property at that time, it belongs to the division again and takes the three-year limitation path.

This distinction is of great significance in practice: the same bank deposit is undivided if neither party knows its existence at the time of divorce division, and if the other party deliberately conceals it and the property has been treated as a package in the divorce agreement, it is more likely to be identified as hidden property and needs to be claimed within three years of discovery.

2. How to prove the "day of discovery"

the starting point of the three-year statute of limitations is the date of discovery or should be discovered, not the date of divorce, which is extremely beneficial to the parties, but it also means that the time of discovery itself will become the point of contention in the trial. The party claiming the right needs to explain when and through what means he knew about the existence of the property, and leave verifiable traces of time as much as possible.

The materials that can be used to fix the time of discovery include: the date of issuance of the results of the real estate registration inquiry, the date of the bank flow transfer, the time when the other party admitted the property in a separate case, the processing time of the transfer of the relevant transaction, etc. On the contrary, if the other party can prove that you should have known long ago, the statute of limitations may start early, which is also the main risk of delaying the claim.

3. boundary conditions

not all ex post facto claims will be entertained. Property that has been explicitly abandoned or divided at the time of divorce can no longer be sued on the grounds of re-division; If you request to revoke the property division clause in the divorce agreement, you must prove that there was fraud, coercion, etc. at the time of the conclusion of the agreement, and it shall be exercised within one year from the date when you know or should know the cause of cancellation. This period is the period of exclusion, and suspension interruption does not apply.

If the property has been acquired in good faith by a third party, for example, if the house has been transferred to a bona fide buyer and registered, the object of the re-division will be converted to the price due to that party, rather than the house itself, and the scope and enforceability of the claim will change. Involving equity, insurance, financial products, but also need to consider the registration and redemption rules.

Practical Experience of 4. Lawyers

after divorce, whether the property can be sued before it is divided up, the answer should be divided into three ways, and it is easiest to judge wrong when mixed together. It belongs to the common property that has not been dealt with at the time of divorce. The request for division is essentially the division of common property and is generally not subject to the limitation of action. If one party hides, transfers, sells or squanders the common property in that year, the three-year limitation period shall apply to the request for division again, starting from the date of discovery. However, those who renege on the property division clause after divorce by agreement and request for change or revocation take another path, subject to a one-year exclusion period, which is not suspended or interrupted. First position yourself in which category, and then talk about it is not too late.

Of the three roads, the starting point of the day of discovery needs to be grasped by the parties themselves. For the lawsuit of re-division of hidden property, three years from the date of discovery, so once you notice something is wrong, you must fix the discovery process, time and clues as soon as possible, such as when you know from which channel and what materials you get. This is not only related to the limitation of time, but also related to whether you can prove that the other party is deliberately hiding. At the same time, we should pay close attention to the evidence itself: account information, registration changes, operating income and other things. The later we start the investigation, the more likely it is that we cannot verify it because the other party will dispose of it again. Instead of worrying about how long is left, we should first grasp the clues.

In practice, there are two misconceptions to guard against. First, the time limit is not limited as it can be delayed indefinitely. Although the undivided property is not limited by the time limit, the property will be transferred, the evidence will be lost, and the other party will make other arrangements. Long delay will not make the situation better. The second is to treat the terms signed by oneself in the divorce agreement as ironclad. If there are legal reasons such as fraud and coercion, they can still claim within the time limit, but only if you can get evidence, not if you were cheated afterwards. Judging the limitation period and fixing the evidence in time are the real winners and losers in such cases.