Can the property missed by Ningbo divorce be divided again?
The common property of the husband and wife that is omitted at the time of divorce, which is discovered and claimed by one party after the divorce, is legally allowed. According to Article 83 of the (I) on the Interpretation of Marriage and Family, after divorce, one party sued for division on the grounds that the joint property of the husband and wife had not been disposed of. After examination, the property was indeed the joint property of the husband and wife not involved in the divorce, and the people's court shall divide it according to law. The key is not whether it can be divided, but whether it can be proved that it has not been handled.
With regard to the statute of limitations, the request for the division of unprocessed common property after divorce is in the nature of a claim for the division of common property rather than an ordinary claim, and it is generally considered that the three-year ordinary statute of limitations does not apply. This is different from the situation where the other party hides, transfers, destroys or squanders common property. The latter applies Article 1092 of the Civil Code, and the limitation of action for requesting another division is three years, calculated from the date of discovery by the parties.
1. legal basis
article Three of the Civil Code stipulates that if the co-owners agree not to divide the common property, they shall be divided according to the agreement; if there is no agreement or the agreement is unclear, the co-owners may request the division at any time, and the co-owners may request the division when the basis of the common is lost or there are significant reasons for the division. Divorce results in the loss of the common basis, whereby the other party acquires the right to request division.
Article 83 of the (I) on the Interpretation of Marriage and Family further clarifies the entrance to the procedure: if a lawsuit is filed after divorce on the grounds that the joint property of the husband and wife has not been disposed of, it shall be divided according to law if it is found to be the joint property not involved in the divorce. At the same time, Article 1092 of the Civil Code and Article 84 of the (I) of Interpretation provide for less points, no division and three-year statute of limitations for concealment, transfer and other situations, and the focus of proof in the two paths is not the same as the statute of limitations rule.
2. core points
the winners and losers of such cases are concentrated in three places: how to prove the objective existence of property, how to prove that the divorce was not dealt with, and which legal path should be chosen.
1. Prove that the property was not involved in the divorce
the plaintiff needs to explain that the property has indeed not been dealt with in the divorce proceedings or divorce settlement. If the divorce agreement has stated that the two parties have no other common property, the property under their respective names belongs to each other and other bottom-up provisions, the difficulty of claiming division will increase significantly, the need to prove that the other party has concealed behavior, or the property is indeed not known to themselves at the time of signing the agreement.
Commonly used evidence includes real estate ownership certificates and registers, bank accounts and flows, equity and business registration information, insurance contracts, housing fund and pension account details, vehicle registration information, etc. The role of evidence is not only to prove the existence of property, but also to fix the time of acquisition within the duration of the marriage relationship in order to fall within the scope of common property.
2. The distinction between omission and concealment and its consequences
the omission is objectively untreated, neither party has concealed the intention, and the division is generally treated equally according to the principle of common property. Concealment is the active concealment and transfer of one party, and the subjective malignancy is obvious. Article 1092 of the Civil Code is applicable. The court may divide or divide the party, but the right of claim is subject to the three-year statute of limitations, counting from the date of discovery.
In practice, the line between the two is often blurred, and the party who advocates the other party's concealment needs to bear a higher standard of proof, usually providing specific clues such as abnormal transfers, surprise transfers, and hidden accounts before the divorce. If concealment cannot be proved, the prudent approach is to claim according to the missing path. Although the bonus of less points is missing, the defense of limitation is avoided.
3. boundary conditions
not all property not mentioned in the divorce can be divided again. If the property has been expressly dealt with by an effective judgment, mediation or divorce agreement, the prosecution cannot be repeated on the basis of the fact that it is no longer justified and res judicata. If there is a general disposition clause in the divorce agreement and the true intention of both parties is expressed, the court usually respects it and may re-examine it only in the presence of fraud, coercion, etc.
Attention should also be paid to the transformation and loss of the nature of the property. If one party has sold, gifted or consumed the property after the divorce, the subject matter claimed by the other party will be changed from the original division to discount compensation or even damages, and the focus of proof will change. Involving real estate or equity acquired in good faith by a third party, it is usually impossible to recover the original property and can only claim the corresponding price from the other party.
Practical Experience of 4. Lawyers
the common property missed during the divorce is discovered and claimed to be divided after the divorce. It is legally allowed. The key is not whether it can be divided, but whether it can be proved that it was not dealt with at that time ". This determines the direction of your proof: not to prove that the other party has more points, but to prove that the property was not involved in the divorce. Requests of the nature of the division of common property are usually not subject to the ordinary statute of limitations, but in the case of the other party concealing, transferring, destroying or squandering common property, a separate statute of limitations rule applies, and the two situations are not confused from the date of discovery.
Operationally, first make a list of "what was dealt with at that time and what was missed": retrieve the divorce agreement or judgment, and check item by item whether real estate, deposits, equity, provident fund, insurance, external claims, etc. are mentioned; Collect evidence of ownership and value for the missing part. If you suspect that the other party has hidden or transferred behavior during the divorce, you should fix the clues as soon as possible and apply for an investigation order or preservation if necessary. It is very important to distinguish between "missing points" and "being transferred". The former strives for division, while the latter involves heavier consequences and different time limits. Only when the direction is right will it not be in vain.
In terms of strategy and timing, the earlier the discovery, the more proactive, the longer the delay, the more difficult the clues, and the more likely the property will be disposed. You can negotiate with the other party first, and it is most convenient to reach a written supplementary division agreement. If the negotiation fails, the lawsuit will be prosecuted in time, and attention will be paid to "confirming that it has not been handled and dividing according to law" instead of entangling the past right and wrong. Don't forget to take precautions on a daily basis: don't sign a "both parties' property has been processed and there is no dispute" clause at the time of divorce, which may make it difficult to claim missing property found in the future.