Can full-time mothers in Ningbo divide their property when they divorce?
1. legal basis
article 1062 of the Civil Code stipulates that the income after marriage shall generally be jointly owned by the husband and wife, and shall be divided equally upon divorce. Article 1088 also stipulates that if one party bears more obligations due to raising children, caring for the elderly, assisting the other party in his work, etc., he shall have the right to request compensation at the time of divorce. Stay-at-home mothers also enjoy these rights.
The two rules are superimposed: the former guarantees "equal division of common property", while the latter recognizes that "housework has a price", which together constitute a double protection for the full-time party, rather than only on the basis of income.
2. core points
there is no income, does not change the property division qualification. After marriage wages, operating income, investment income and other common property, and whose name on the card, who is on the job has nothing to do, in principle equal division. The contribution of full-time mothers to the family's labor is also recognized through financial compensation for divorce, rather than being ignored.
In practice, the court usually provides preferential protection for the party who takes long-term full-time care of the family in the division of property and compensation. Compensation is not a "handout", but a quantification of intangible contributions, and the amount will be determined by taking into account the economic capacity of both parties, the length of their obligations and the local standard of living.
3. boundary conditions
protection is premised on "common property. The amount of compensation is not a fixed standard, taking into account the financial capacity of both parties, the length of the obligation and the local standard of living. If one party does have personal property after marriage (e. g. pre-marital property is not mixed after marriage), it is not included in the scope of common division.
4. operational steps
first clarify the list of common property (real estate, deposits, financial management, provident fund, equity, etc.). Provident funds, annuities and financial returns are often ignored and should be checked item by item. According to the Yinzhou Court's White Paper on the Trial of Marriage and Family Cases (2019-2021), more than 99% of local divorce cases involve the division of property, and the sooner the property clues are fixed, the better.
5. common mistakes
myth 1: I can't make any money. Wrong, the common property after marriage has nothing to do with income.
Myth 2: Full-time equals no contribution. The law specifies that compensation may be claimed for domestic work.
Myth 3: All the money in the other party's card is his. The accumulation during the marriage memory is mostly common.
Myth 4: Compensation is symbolic. Compensation may have a substantial amount when it is long-term full-time and the other party has a high income.
6. operational steps
1. List of property
comprehensive combing of the names of both parties after marriage assets, do not miss the provident fund and financial management.
2. Remember the contribution
organize the specific duration and facts of childcare, housework and assistance to each other.
3. Claim compensation
in addition to the division, a separate request for compensation for housework is made to strengthen the tilt.
List of 7. evidence: guarantee division and compensation.
1. List of common property
real estate, deposits, financial management, funds, provident funds, pensions, equity, vehicles, etc., are listed item by item and attached with vouchers to prevent omissions.
2. Evidence of the contribution of housework
children's birth and school records, medical care records, home-school communication records, proof of long-term commitment to upbringing and housework.
3. Economic capacity of the other party
the other party's income, social security, equity and operating income certificates are used to support the amount of compensation and subsequent maintenance standards.
8. practice tips
the full-time party is often at an information disadvantage, with the other party in control of all accounts and assets. Before the division, we should sort out the whole picture of family assets as soon as possible, apply for court investigation if necessary, and do not determine the scope of property based on the other party's oral statement.
In addition to the division of property, don't forget to advocate both compensation for housework and assistance for financial difficulties: the former is a recognition of the contribution that has been made, and the latter is a transitional relief for the difficulties of life after divorce, which are different in nature and conditions and can be proposed separately.
9. upbringing and subsequent life arrangements
1. Standard of alimony
the maintenance fee is generally paid at 20% to 30 of the total monthly income of the other party, and the proportion of bearing more than two children can be appropriately increased, but usually does not exceed 50% of the total monthly income.
2. Property and Residential Arrangements
the party directly raising the children may take appropriate care of the housing division, and may agree to live temporarily, compensate at a discount or dispose of the children when they reach adulthood, taking into account stability and reality.
3. Back-to-work support
in the event of divorce, financial hardship assistance and reasonable transitional arrangements can be advocated together to provide a buffer period for the full-time party to re-employment and avoid life breaks.
The trade-off between 10. negotiation and litigation
1. The bottom line of the consultation programme
the full-time party should not take "ending as soon as possible" as the only goal in the negotiation, but should first calculate the bottom line: the approximate share of common property, the reasonable range of compensation for housework, the standard of child support and living arrangements. It is good to judge the merits of the other party's proposal in the negotiation after mastering the bottom line, and avoid accepting obviously unfavorable conditions due to information asymmetry. The negotiation process should require the other party to fully disclose the property and write it into the agreement, and set up a default clause to prevent the other party from failing to perform afterwards or regenerating the dispute on the grounds of missing property.
2. Organization of evidence in proceedings
the evidence should be divided into three groups: property, contribution and ability: the property group uses accounts, real estate and equity certificates to prove the scope of common property. Three sets of evidence to support each other, both to support the equal division, but also to support the housework compensation and economic help request. If the other party conceals property, timely application for investigation order to withdraw the account and transaction flow is the key means to make up for the information disadvantage.
XI. Implementation and follow-up
after the agreement or mediation agreement comes into effect, if the other party fails to pay compensation or maintenance as agreed, it may directly apply for enforcement without separate prosecution. In the execution stage, the accounts, real estate, vehicles and operating income clues under the name of the other party shall be sorted out and submitted to the court for investigation and control. For malicious transfer to evade execution, measures such as restricting consumption and incorporating dishonesty may also be requested. For the full-time party, the implementation of the division, compensation and maintenance payments into clear amounts, deadlines and consequences of breach of contract is a key step to ensure that the judgment is truly landed.
Twelve, lawyers actual combat experience
what stay-at-home mothers most often underestimate when divorcing is precisely the rights in their own hands. Whether there is income or not does not affect the eligibility for the division of common property-the wages, operating income, investment income and other common property of the married party, regardless of whose name is on the card or who is in the workplace, should in principle be included in the division. In addition, the party who has more obligations for raising children for a long time, taking care of the elderly and assisting the other party in his work can also request financial compensation when divorcing. The superposition of the two rules constitutes a double protection for the full-time party. Therefore, the first step is not to admit that "I have no money, I have no share", but to set up this legal cognition first.
The strength of protection depends to a large extent on the evidence. The scope of common property should be restored by property clues: bank accounts, real estate, vehicles, equity and provident funds in the name of the other party should be sorted out and supplemented by investigation orders or court access when necessary. The claim of financial compensation requires another set of materials-the objective fact that you have given up or ceded career development, long-term housework and childcare, the sharing of family expenses, the record of child care, and the testimony of relatives and friends. In practice, for the party who takes care of the family full-time for a long time, the court usually has a tilt in the division and compensation, but this "tilt" depends on the facts, and it is useless to emphasize hard work.
When it comes to strategy, stay-at-home moms should pay extra attention to trade-offs between negotiation and litigation. Your core demands may not only be a little more money, but also include post-divorce residence, support arrangements and life security during the transition period. These are precisely the problems that mediation and agreement can flexibly solve, and it is easier to put them into practice than judgment. So think clearly in advance: what you need most is cash, a house or a stable upbringing arrangement? Design room for concessions accordingly. At the same time to prevent the other party in the negotiation period to transfer property or cut off, as soon as possible to apply for preservation, retain the other party's income clues, are to leave their own way back. With the combination of claims, evidence and negotiation rhythm, the value of full-time years of work will not be erased in divorce.