Insights

Can Ningbo dispose of property casually after suing for divorce?

Ningbo Author：LuXu WANG

A party concerned asked: The divorce has been filed with the court, but the case has not been decided yet, but the other party has started to transfer large amounts of deposits and sell the house at a low price. Doesn't the prosecution have the effect of "freezing" the property? Direct conclusion: suing for divorce itself does not freeze property, and the common property in marriage is still in a state of flow before the judgment comes into effect; However, the unilateral large-sum and abnormal disposition of common property after prosecution is the act of "transferring and selling the common property of husband and wife" hit by Article 1092 of the Civil Code-once verified, the party can be divided less or not, and those found after divorce can be divided again. The key is not "whether it can be punished", but whether the punishment is fair, whether it is informed to the other party, and whether it is used for family life together. This article clarifies the legal basis, risk boundaries, list of evidence, and optimal timing for response.

1. Legal Basis: A Comprehensive Understanding of Article 1092

Article 1092 of the Civil Code stipulates: If one of the spouses conceals, transfers, sells, destroys or squanders the common property of the spouses, or forges the common debt of the spouses in an attempt to occupy the property of the other spouse, the common property of the spouses may be divided less or not; after the divorce, if the other spouse finds the above-mentioned behavior, he may bring a lawsuit to the people's court, request another division of the couple's joint property.

There are two levels of supporting rules: first, Article 84 of the Interpretation (I) of the Supreme People's Court on the Application of the Marriage and Family Code of the Civil Code of the People's the People's Republic of China of China stipulates that the statute of limitations period for requesting to divide the joint property of husband and wife again according to Article 1092 is three years, counting from the date when the party finds out-the later it is found, the more urgent it is to claim; second, during the existence of the marriage relationship, except for the two circumstances stipulated in Article 1066 of the Civil Code, one of the spouses will not support the request for division of the common property-under normal circumstances, the marriage cannot be "divided", but if the other party is hiding, transferring or squandering the common property, the injured party may directly sue for division within the marriage in accordance with the first paragraph of Article 1066, without waiting for divorce.

Dismantling of the requirements: It is determined that the "transfer of property" should be satisfied at the same time-the object of (I) disposition is the common property of husband and wife; the (II) disposition occurs before and after divorce or during the period of intensification of marital conflicts, and the timing is suspicious; the (III) disposition is obviously abnormal: the price deviates from the market, the free or low-priced transfer to close relatives, the capital flow is unknown or returns to personal account; the (IV) is not informed to each other. Only when all four elements are present does it constitute “malicious diminution of marital property.”

2. Three classifications of property disposition after filing a lawsuit

After filing for divorce, the disposition of jointly owned property is governed by law in three distinct scenarios, each of which is handled differently:

  1. Normal punishment does not constitute transfer: paying medical expenses for children's emergency medical treatment, repaying the family mortgage, paying the family's necessary living expenses, and normal business turnover. Even if the amount is not small, as long as there are contracts and bills corresponding to reasonable uses, transfer is generally not recognized. Filing a lawsuit does not alter the day-to-day functioning of a family, and ordinary household spending should not be arbitrarily classified as asset transfer.
  2. Suspicious punishment should be justified by self-evidence: centralized disposal of large assets, integer transfer, transfer to close relatives, and low-cost sale of real estate vehicles before the lawsuit. At this time, the party subject to disciplinary action must explain the disposition of the funds and their legitimate purposes; if such explanations are unclear, the court will tend to deem the funds as having been transferred or squandered.
  3. Malicious disposal, resulting in a smaller share or no share: sudden gratuitous transfers, transfers at prices significantly below market value, transferring assets to extramarital partners, and fabricating debts to offset assets. Upon verification, that party shall receive a smaller share or no share at all during the division of property, and may also face additional adverse consequences.

For example: within one week after the man sued for divorce, he transferred a set of real estate registered in his own name with a market price of 3 million yuan to his sister at 1.5 million yuan, and transferred the joint deposit of 800000 yuan to his mother's account once. After examination, the court found that the transfer price of the real estate was obviously abnormal, the deposit flowed to close relatives and could not explain the reasonable use, which constituted the transfer of common property. It ruled that the man's share of the real estate and the deposit was greatly reduced, and the woman's share was about 70%. On the other hand, if the man can submit his mother's hospitalization medical bills and transfer corresponding records, proving that the 800000 yuan is used for maintenance medical expenses and the amount is within a reasonable range, it may not be considered to be transferred.

3. Risks and Identification of Different Property Types

The methods used to transfer different types of assets and the difficulty of verifying such transfers vary; therefore, countermeasures must be tailored to the specific circumstances:

  1. Real estate and vehicles: need to be registered and publicized, the transfer track is clear and easy to check, and the transfer before the lawsuit is most likely to be identified and transferred, and also most likely to be sealed by preservation. Upon detecting any red flags, immediately apply for a property lien and obtain the transfer records from the real estate registry.
  2. Deposits and Wealth Management: Highly liquid and difficult to trace. The main points of identification are abnormally large amounts, integer transfers out, centralized redemptions, transfers to other people's accounts-after transferring the bank flow, according to the timeline comparison, and the normal household expenses obviously do not match the node is the breakthrough.
  3. equity and creditor's rights: transfer of equity at a low price, fictitious debts and early settlement of debts of related parties may all fall into the category of transferring or forging debts. The key review focuses on whether the transfer consideration is fair, whether the transferee is an affiliate, and whether the debt actually arose.
  4. Virtual property and new-type assets: game equipment, virtual currency, live reward, large-sum insurance and surrender, etc., which are more hidden and need to be cross-compared with platform records and capital flow.

4. Timing of Response: Proceed with both preservation and litigation in parallel.

When you detect signs of large-scale or unusual asset disposals by the other party, speed is critical. Three-step approach:

  1. Preserve evidence immediately: Take screenshots of the other party’s account activity, contracts, and chat logs; export bank statements and retain the original storage media to prevent the records from being deleted.
  2. Apply for property preservation: submit the preservation application to the court that accepts the divorce lawsuit, explain the specific clues of the preserved property (account, real estate location, license plate number) and the actual risks of being transferred, and provide corresponding guarantee (the guarantee amount can be reasonably determined according to Article 85 of Interpretation 1). Following the court’s ruling, deposits were frozen, and real estate and equity interests were sealed off, thereby preserving the disputed assets in their current state throughout the litigation. Please note that the preservation period is limited; you should apply for an extension before it expires. If your application is incorrect, you may be liable for damages; therefore, the information provided should be specific and not overly general.
  3. claim less division or division again: the transfer clue and time line are listed in the lawsuit, and the malicious party is requested to be divided less or not; if the disposition has been completed and the buyer has obtained it in good faith, although it is difficult to recover the original, it can claim division of the transfer money, and request to tilt the proportion, focusing on the tracking and preservation of the money.

If you find out after divorce, you don't have to lose heart: according to the second paragraph of Article 1092 and Article 84 of Interpretation 1, you can sue for another division within three years from the date of discovery, and apply for an investigation order to retrieve the historical flow of the other party's account.

Practical Key Points of Property Preservation

Five points should be grasped when applying for property preservation: first, the opportunity is to apply at the same time when the case is filed or on the day when the transfer sign is found, and the preservation ruling is generally made in time after acceptance; second, clues, listing the account opening bank and account number, real estate location and license plate number, and it is difficult to obtain the general application without clues; third, guarantee, the court can order to provide guarantee, in family cases, according to the interpretation of Article 85, the amount of guarantee can be reasonably determined within the scope of possible losses. Fourth, the period of freezing deposits is generally one year and sealing up real estate is three years. Renewal of insurance should be applied before expiration, otherwise it will be automatically unsealed. The fifth is responsibility. If the application error causes losses to the other party, compensation must be paid. Therefore, the clue should be real and the scope should be appropriate.

Direct lawsuit for property division during marriage: the “emergency lane” that cannot wait until divorce.

If the other party is transferring property on a large scale and the divorce proceedings will take time, there is no need to wait-Article 1066 of the Civil Code allows direct prosecution to request the division of common property during the existence of the marriage relationship. The applicable situations include one party's hiding, transferring, selling, destroying, squandering common property or forging common debts of husband and wife, which seriously damage the interests of common property. This kind of lawsuit does not take divorce as the premise, the division is still the common property, only the infringed part is "cut out" to protect; According to Article 38 of Interpretation 1, the request for marital division is not supported except in the case of Article 1066, so the evidence of "ongoing transfer" must be closely linked to the claim.

We should also pay attention to the "reversibility" of the disposition: if the property has been transferred to a bona fide third party, it is difficult to recover the original property, but we can claim to divide the transfer price and give less to the transferring party; if the buyer has a close relative relationship with the other party or the price is obviously low, it is difficult to establish bona fide acquisition, and we can sue to confirm the transfer contract invalid and request to restore registration. If the punishment is discovered only after divorce, according to the second paragraph of Article 1092 and Article 84 of Interpretation 1 of the Civil Code, a separate lawsuit may be filed and divided again within three years from the date of discovery, and attention shall be paid to retaining evidence of "discovery time" to deal with the defense of limitation of time.

5. List of evidence: three sets of evidence proving the disciplinary action was abnormal.

To allege that the opposing party has transferred assets, evidence must be organized around the “timing, price, and destination”:

  1. transaction time and price: if the real estate registration files, transfer contracts and vehicle transaction records are concentrated before and after the prosecution and the price is obviously lower than the market price (the comparison of the listing price of the same kind of houses in the same location can be submitted), the abnormality is initially established;
  2. Counterparty relationship: proof of the relationship between the buyer and the other party's relatives, friends or affiliated companies (household registration, business registration, social records), and the low-price transaction of close relatives is most likely to be identified as malicious;
  3. whereabouts and uses of the funds: if the flow of the transferred funds flows back to the other party's control account, used for personal consumption or unable to correspond to household expenses, it is a strong evidence of malicious disposition.

At the same time, we should prejudge the other party's defense: the common rhetoric of the unauthorized disposition party is that "the money is used for the common expenditure of the family" and "the other party knows and agrees". The cracking idea is to require it to provide contract, invoice and payee information for each expenditure and explain the purpose. Any part that cannot correspond to the necessary expenses of the family is improper disposal. For the defense of "informed consent", check whether there is written authorization or clear chat confirmation. Simple silence or subsequent knowledge usually does not constitute prior consent. If the disposition price obviously deviates from the market or flows to related parties, even if there is formal consent, it is still possible to claim damage to the interests of the common property and request an adjustment of the division ratio.

6. Common misconceptions

Misconception 1: Once a divorce lawsuit is filed, the marital property is automatically “frozen,” and the other party cannot make any changes to it.Correct answer: Filing a lawsuit does not automatically result in the freezing of assets; jointly owned property may still be disposed of by one party prior to the judgment, so it is necessary to proactively apply for asset preservation.

Myth 2: The money is in my account, so I can spend it however I want.Correct answer: Post-marriage income is considered joint property; large or unusual outflows may be deemed as asset transfer, resulting in a smaller share during the division of assets.

Misconception 3: One must wait until the divorce judgment is issued before addressing asset transfers; early intervention is not permitted. Positive solution: If the situation is in line with Article 1066 of the Civil Code, you can sue directly within the marriage to request the division of common property without waiting for divorce.

Myth 4: If it wasn’t discovered during the divorce, it can’t be recovered afterward. Positive explanation: if the other party is found to have hidden and transferred the common property after divorce, he can sue for division again within three years from the date of discovery.

Myth 5: If the other party says they’ve spent all their money on the family, you just have to accept it. Positive solution: Any expenditure that cannot correspond to the necessary expenses of the family and cannot provide vouchers can still be claimed as improper disposal and request less points.

Misconception 6: In a divorce proceeding, you cannot request the court to obtain the other party’s bank statements. Positive solution: You can apply for the court to investigate and collect evidence or apply for an investigation order in writing within the time limit of proof, and the bank will cooperate according to law, which is the proper channel to verify the transfer behavior.

Misconception 7: Once the other party transfers their assets overseas, they become completely untraceable. Positive solution: those who can provide clues can still apply for investigation and preservation, and those involving foreign countries can be promoted through judicial assistance; at least in terms of domestic property and the proportion of division, they can still claim less points.

class case reference: the court held that the divorce by agreement was the true intention, the defendant did not have the behavior of concealing or transferring property, and the property had been reasonably disposed of during the divorce; the plaintiff claimed to divide the property during the existence of the marriage relationship, but did not claim within one year after the divorce, and all the petitions were rejected beyond the period of exclusion. Trial Court: People’s Court of Yinzhou District, Ningbo City, Zhejiang Province Case No.: (2019) Zhe 02

12Min Chu 10610

7. Frequently Asked Questions

After filing for divorce, can I withdraw the marital savings and keep them myself?

Not recommended. Large withdrawals of cash and unable to explain the purpose, can easily be determined to be transferred or squandered ".

Does using joint savings to pay for a child’s tuition constitute asset transfer?

No, it doesn’t count. Expenditures supported by payment receipts and justified in purpose are considered legitimate dispositions; the key is to retain the relevant receipts as proof that the funds were used for the common interests of the family.

The other party has already sold the house to his younger brother at a low price—can it be recovered?

It depends on the situation. If the buyer constitutes a good faith acquisition (good faith, reasonable consideration, has been transferred), the recovery of the original house is difficult, may claim to divide the transfer money and the transfer party less.

Is a security deposit required when applying for property preservation? What if I don’t have enough money?

The court can order to provide guarantee, but according to Article 85 of Interpretation 1, if one of the spouses applies for taking measures to preserve the spouse's property, the court can reasonably determine the amount of guarantee within the scope of possible losses caused by the preservation, and the guarantee threshold of family cases is usually lower than that of ordinary cases.

After the divorce, I just found out that my ex had transferred their savings years ago—can I still recover it?

Yes.Within three years from the date of discovery, the court shall be sued for re-division, and the statute of limitations shall start from "discovery" rather than divorce, but the evidence of the time of discovery shall be fixed as soon as possible.

8. Lawyer's Practical Insights

Many parties thought that "once the case was established, the property would be frozen", and they panicked until they found that the other party had transferred a large amount of deposits and disposed of the property at a low price during the litigation. In handling the case, we must first break this misunderstanding: the filing of divorce proceedings itself will not freeze the common property, and the property is still in a state of flow before the judgment takes effect. But this does not mean that the other party can be arbitrarily punished-after the prosecution of a large, obvious deviation from the common sense of the punishment, it is the legal focus of the regulation of the situation, once it is found to be in the transfer or sale of common property, the division may be less or even no division of the party. The key to judgment is never "whether it can be moved", but whether the punishment is fair, whether it is informed, and whether it is used in family life together.

Since the property will not be frozen automatically, the core of the response is "preservation and litigation advance simultaneously", which cannot wait. In practice, once the other party is found to have signs of transfer-frequent large transfers, abnormally low price sales, sudden cash withdrawal or transfer of equity, it should apply to the court for property preservation as soon as possible, and the relevant accounts, real estate and equity should be sealed up and frozen first. At the same time, keep an eye on its disposition and, if necessary, apply for investigation and evidence collection or transfer of running water. The timing often determines the result: if you save it early, you may be able to stop a sum of money that is flowing out; if you are late, you may face the embarrassment of "winning the lawsuit and not getting the money. Therefore, from the moment the case is filed, it is necessary to stare at the other party's property movements as a main line.

If you want to claim that the other party's punishment is abnormal, you can't do it just by feeling, and the evidence should be grouped. In practice, it is usually prepared from three lines: first, the capital line and destination. The running water of banks and payment platforms can show the amount, time and payee, focusing on whether it is large, concentrated and suspicious. Second, the traces of changes in property form, the registration changes of real estate, vehicles and equity, transfer records and transaction prices can reflect whether they are obviously lower than the market price or transferred to related parties. The third is to inform and use, whether the other party informs in advance and whether the money is used for joint family expenses often determines whether the disposition is justified. Organizing these materials chronologically is far more persuasive than making scattered accusations that the other party has transferred assets.

It is not "everything is fine" to sue for divorce, and the common property is always in a state of flow before the judgment takes effect. The guard should do three things: leave traces at ordinary times-keep running water, contracts and chat records; Preservation upon discovery-fixing the disputed property during the litigation period; Clear claims-clear claims to transfer claims in litigation and request less or no points. The attacker should remember that it is OK to dispose of the property, but it must be fair, transparent and used for common life. Sooner or later, large expenditures that cannot tell where to go will have to pay a price in terms of division ratio.