Ningbo agreement can re-divide property after divorce
When Mr. Zhang agreed to divorce, he agreed that the property was owned by his ex-wife. After the divorce, he found that his ex-wife had secretly transferred a large amount of savings before the divorce. Mr. Zhang would like to know whether it is possible to redivide this portion of the property. In practice, it is not uncommon for one party to discover after divorce that the other has concealed assets; the law provides a clear avenue for seeking redress. Conclusion first: after the divorce by agreement, if it is found that one party hides, transfers, sells or damages the joint property of husband and wife during the divorce, he may sue the people's court for another division; the limitation of action is three years, calculated from the date of discovery, and the other party may be claimed to have less or no division in this part.
1. Legal Basis and Element Breakdown
Article 1092 of the Civil Code stipulates: "If one of the spouses hides, transfers, sells, destroys, or squanders the common property of the husband and wife, or forges the joint debt of the husband and wife in an attempt to embezzle the property of the other spouse, the party may be divided less or not divided during the divorce and division of the common property of the husband and wife. After divorce, if the other party discovers any of the aforementioned conduct, they may file a lawsuit with the People’s Court to request a re‑division of the marital property. "The supporting limitation rule is Article 188 of the Civil Code: the limitation period for requesting protection of civil rights from the people's court is three years, calculated from the date when the right holder knows or should know that the right has been damaged and the obligor.
The establishment requirements of the lawsuit of dismantling and re-division: first, the property belongs to the common property of husband and wife and is not divided at the time of divorce -- the property divided by agreement can not be divided again in principle; second, the other party has behaviors such as hiding, transferring, selling, destroying, squandering or forging debts and embezzling -- subjectively, there must be the intention of embezzlement, objectively, I found out after divorce-"discovery" is the starting point of limitation. Fourth, sue within three years from the date of discovery. Attention should be paid to the difference between the situation of "omission at the time of divorce and neither party's knowledge": according to article 83 of the (I) of interpretation of marriage and family in the civil code, if one party after divorce sues for division on the grounds that there is still common property of husband and wife that has not been dealt with, and if it is found to be common property of husband and wife not involved in the divorce, the court shall divide it according to law-the situation focuses on "non; however, article 1,092 is aimed at" the other party's malicious and concealed transfer, "and may advocate a small or no division. The two paths of evidence require different requirements: those who claim that the other party is malicious and concealed must prove that they "knew or should have known" within three years.
Breakdown of 2. situations: what can be subdivided and what cannot be subdivided
First, the other party transfers the deposits to the accounts of relatives and friends before the divorce, and conceals the unreported ones during the divorce-typical concealment, which can be sued for further division and claim less points. Second, if the other party sells the common property or vehicle, the price is not divided-the price can be claimed to be divided again; if the property has been lost or disposed of, the corresponding price can only be claimed. Third, if the other party has misappropriated property by fabricating a promissory note or creating fictitious debts, you may request a re‑division of the assets and seek to have that party receive a smaller share. Fourth, at the time of divorce, both parties did not know that there was still a certain amount of property (such as winning the prize and inheritance income that had not yet been paid)-it was "unprocessed property" and was divided according to Article 83 of Interpretation 1, without the problem of less points. Fifth, property that has been clearly stated in the agreement and has been divided-generally cannot be re-divided, unless there is fraud or coercion (the action of withdrawal is subject to a one-year exclusion period). Sixth, if the parties reach a new agreement after divorce, their dispute may be resolved in accordance with that new agreement.
It is also necessary to grasp the boundary of "profligacy": Article 6 of the (II) for the Interpretation of Marriage and Family Compilation of the Civil Code makes it clear that one of the spouses rewards with the joint property of the husband and wife on the webcast platform without the consent of the other spouse, and the amount obviously exceeds the general consumption level of the family and seriously damages the interests of the joint property of the husband and wife, it can be regarded as "profligacy" as stipulated in Article 1092-the party may be divided less or not when the divorce is divided. This latest caliber makes the identification of "profligacy" concrete, suggesting that large irrational consumption may also trigger less liability.
3. Case Perspective: How Ningbo Court Sentenced Re-division
The court of Ningbo supports the division of the common property which is not divided or concealed after the divorce through the lawsuit of the property after the divorce, and the public judgment can be confirmed: in the judgment of Ninghai Court (2011) Yong Ning Min Chu Zi No. 1335 (the property dispute between Chen and Xiang after the divorce), after the undivided house is auctioned, the plaintiff gets 235000 yuan and the defendant gets 285000 yuan; in the property dispute between Wang Moumou and Zheng Moumou after their divorce heard by Ningbo Court, some houses were common property, and it was decided that the houses under the defendant's name should belong to the plaintiff and the plaintiff should pay the compensation of 328500 yuan. In the property dispute after the divorce between Xu and Chen Mou heard by Zhenhai Court, the property under the names of both parties was awarded to the plaintiff, and the plaintiff paid the defendant a discount of 744362.
67yuan.
half a year after the divorce, ms. sun found that her ex-husband transferred the couple's joint deposit of 600000 yuan to her mother in three transactions two months before the divorce, and declared "no other deposits" at the time of divorce ". Ms. Sun sued to split the 600000 yuan again and claimed that her ex-husband should split it less. The court found that the ex-husband constituted a hidden joint property of the husband and wife, and ordered the ex-husband to pay Ms. Sun 400000 yuan (less points), and the legal costs were borne by the ex-husband. The deduction reflects the punitive orientation of Article 1092 of "less points or no points"-the hidden party should not only take out the money, but also bear the consequences of less points.
4. Common misconceptions and correct answers
Myth 1: Property can never be re-divided after divorce by agreement. Positive Solution: If it is found that the other party has hidden or transferred the common property during the divorce, it can be sued for division again within three years from the date of discovery; the property that both parties have not dealt with during the divorce can also be sued for division.
Misconception 2: You can file a lawsuit at any time. Positive solution: those who claim the other party's concealed transfer are subject to the limitation of action for three years, and from the date of discovery, the right to win will be lost if the time limit is exceeded; those who claim the division of "unprocessed property" are not subject to limitation in judicial interpretation, but the longer the evidence is preserved, the more difficult it is.
Misunderstanding 3: Re-division is equal distribution. Positive solution: The concealed and transferred parties can be divided less or not. This is the punitive provision of Article 1092, and the average division is not an natural result.
Misunderstanding 4: Only screenshots of chat records can prove the transfer. Positive explanation: the bank flow and transfer records should retrieve the original documents and affix the bank seal. The WeChat records should retain the original carrier, and only the screenshots have limited proof power (the white paper of Yinzhou Court also points out that there are many defects in proof of electronic evidence and it is difficult to be accepted).
List of 5. evidence materials and operation steps
Evidence list: ① Bank flow (records of large and frequent transfers in the other party's account within six months to one year before and after the divorce, the bank is required to affix a business seal when transferring);② Proof of transfer object and related relationship (proof of the identity and relationship of the payee who is the other party's relative or related person);③ Query records of real estate, vehicles, securities and financial management; ④ The other party's property declaration record (property declaration form at the stage of divorce proceedings or agreed divorce);⑤ clue materials (chat records, third-party notification, inquiry records) that can prove the "time of discovery" are used to fix the starting point of limitation. Operating steps: to obtain fixed evidence of running water as soon as possible after finding hidden clues → to apply for a court investigation order or property preservation to prevent further transfer when necessary → to file a lawsuit with a competent grass-roots court within three years from the date of discovery → to request another division and claim less or no division of the other party → to apply for enforcement after the judgment takes effect.
6. Litigation pathways, preservation measures, and enforcement details
The case cause of the division of the lawsuit is "property dispute after divorce", which is under the jurisdiction of the people's court of the defendant's domicile; if the defendant's whereabouts are unknown, it is under the jurisdiction of the court of the plaintiff's domicile, which may involve the service of public notice, and the period is lengthened accordingly. The filing materials include: divorce certificate or divorce judgment, divorce agreement, list of property clues, preliminary evidence to prove the concealment (bank flow, chat records, etc.)-the evidence does not need to be "in place in one step" when filing a case. the court files a case for formal examination, and the evidence can be supplemented within the time limit for proof. however, if applying for property preservation, preliminary property clues and guarantees must be provided.
The statute of limitations is the critical issue in this type of case: the three-year limitation period begins to run from the date of “discovery,” and in practice, the burden of proving “discovery” often becomes the focal point of contention. It is suggested that the discovery time should be fixed in written form-sending a letter to the other party to question, asking about the whereabouts of the money in the chat record, issuing a lawyer's letter before the prosecution, etc., can form evidence of "when to know"; If the request for return is negotiated, it may also constitute the cause of interruption of the statute of limitations (Article 195 of the Civil Code), which will be counted again for three years. Conversely, if the other party can prove that you knew about it many years ago but did not claim it, you will face the risk of a statute of limitations defense. If the lawsuit advocates "less points or no points", it is necessary to demonstrate the degree of malice of the other party: the closer the transfer time is to the divorce, the more hidden the transfer object (relatives, associates), and the more deliberate concealment during the divorce, the more conducive it is to identify malice.
At the execution level, if the judgment determines that the other party should pay discount or compensation, the court can apply for compulsory execution after the expiration of the performance period, and the court can check and control its account and seal up the real estate vehicle through the network; if there is no property available for execution or has been transferred under the name of the other party, it can apply to include it in the dishonest list, restrict high consumption, and pay attention to the dynamic changes of its property clues (new salary, financial management, etc), find new clues in a timely manner to the court to restore enforcement. For property that has been transferred to a third party, if it can be proved that the third party knowingly received the transfer of the joint property of the husband and wife, a separate lawsuit may be filed for recovery, but the corresponding burden of proof shall be borne.
To distinguish several common situations in practice: first, if the hidden property is registered property (real estate, vehicle, equity), you can first check the right status through the real estate registration center, DMV and national enterprise credit information publicity system, and then determine the object of prosecution and preservation; second, the hidden property is cash and financial management, and the bank flow is the core, if the transfer time is concentrated in the year before the divorce, it is especially worth digging deeply. You can apply to the court to obtain the account flow of the other party and its close relatives for comparison. Third, if the other party has already made a property declaration and concealed it in the divorce proceedings, the declaration record can directly prove malicious intent and claim less points to be more powerful. Fourth, if the property cannot be recovered after execution, you can apply to terminate this execution and reserve the right to resume execution, apply for restoration at any time when new property clues are discovered. The success or failure of a subsequent partition action hinges on establishing, through evidence, the four elements of concealment—timing, target, amount, and intent.
Finding clues means preserving and fixing evidence means prosecuting, which is the safest action rhythm of this kind of cases. Do not delay litigation because of concern, the hidden party often completes the transfer of property in the procrastination formula, the longer the time, the more difficult it is to recover.
Class Case Reference: If the other party is found to be hiding or transferring common property after divorce, they can request to divide it again. The Ningbo Intermediate People's Court held that if one party hides or transfers common property during divorce, the other party may request another division, and the limitation of time shall start from the date of discovery. However, according to the new evidence of the second instance, the appellee knew clearly about the creditor's rights involved in the case during marriage, and many divorce agreements did not involve the creditor's rights, which can be regarded as the actual processing has been completed. Trial Court: Ningbo Intermediate People's Court Case No.:(2019) Zhejiang
02Minzong No. 3501
7. FAQ
If you file a lawsuit to re-divide the assets, are you essentially suing to “rescind the divorce agreement”?
No. Re-division of the common property that was not divided or concealed by the other party at the time of divorce, the claim is "to divide the property. If the hidden property is not dealt with in the agreement, it can be divided directly by Article 1092.
It has been two years since the other party transferred their assets. Can I still file a lawsuit?
Yes, as long as it is less than three years from the date of discovery. The statute of limitations starts from "knowing or should have known", not from the time of divorce. However, if the other party can prove that you knew long ago but delayed the prosecution, the court may find that the statute of limitations has expired, so the evidence should be fixed and prosecuted as soon as possible after discovery.
The transferred money has been spent, can it be returned?
can claim. If the property has been lost or disposed of, the other party may be requested to compensate for the corresponding price, and if the money is transferred to the account of a third party and the third party knows that it is the transfer of the joint property of the husband and wife, it may be recovered together, provided that it is proved that the third party did not obtain it in good faith.
What the other party transfers is the joint deposit after marriage. I only have some screenshots of the transfer. Is it enough to sue?
Screenshots can be used as property clues, but have limited probative power. It is suggested that after the lawsuit, apply for a court investigation order or according to the application to transfer the other party's bank account flow, the transfer time, amount, collection account and divorce time point corresponding, stamped with the bank seal flow is the most powerful evidence. At the stage of filing a case, clues can be submitted, and the court can investigate and verify according to its authority. It is not necessary to wait for the evidence to be completely complete before filing a lawsuit. However, attention should be paid to prevent the delay from leading to the expiration of the statute of limitations or the continued transfer of property.
The divorce agreement has stated that the division of property has been completed and there is no other dispute between the two parties. Can they sue again?
This statement does not mean giving up the recourse to the concealed property: if the other party conceals the property when signing the agreement, it can still sue for another division and claim less division or no division according to Article 1092 of the Civil Code; However, if the property has been clearly dealt with in the agreement and you know it but sign and confirm it, it is divided and generally cannot be sued again. The key to see whether the property is not processed at the time of divorce, and whether the other party has the malice of concealment and transfer.
8. Lawyer's Practical Insights
The signing of the divorce agreement does not mean that all property disputes are over, but the conditions for re-division are clear. The situation that can be re-divided is mainly that one party hides, transfers, sells, destroys common property, or falsifies debts in an attempt to usurp the other party's property at the time of divorce, while the simple "valuation was low at the time" and "feeling lost after the fact" is generally not enough to overturn the agreement that has entered into force. Therefore, the parties concerned should first calmly judge which kind they belong to, and then decide whether to start the procedure, otherwise it is easy to make a trip in vain and cost more.
What really determines success or failure is evidence. After discovering how much the other party has hidden and transferred, it is necessary to fix the existence and flow of these properties as soon as possible, and keep an eye on the time limit from the date of discovery. If it is delayed for a long time, it will be very passive. On the material, the original divorce agreement, property clues, abnormal transfer records and relevant vouchers should be prepared. Involving real estate, equity, but also the registration information and capital path. In a lawsuit, you can claim that the other party has less or no division in that part, and consider locking up that part of the property with preservation to prevent it from being disposed of again during the lawsuit.
In terms of operation rhythm, it is suggested to do a "look back" type of property inventory first, compare the agreed and actual items in the divorce agreement one by one, find out the wrong places, and often find clues. During the negotiation, it is better to give the evidence to the other party appropriately to see if it can be solved through renegotiation, thus saving time and effort. If the other party strongly denies it, it will take the lawsuit and claim the corresponding consequences in the lawsuit. What needs to be reminded is that don't put your hopes on "repentance"-the property that has been dealt with in the agreement is difficult to move unless there are the above legal reasons.
After the divorce agreement, it is found that the other party has hidden and transferred money. The law gives the double relief of "dividing again + dividing less and dividing less". The key is to do three things right: first, to distinguish the authenticity from the false-is it the other party's malicious concealment and transfer (Article 1092) or the missing property that both parties have not dealt with (Article 83); the second is the punctuality of the card-prosecution within three years from the date of discovery, and simultaneous application for property preservation; The third is to prepare sufficient evidence-the bank's running water is stamped, the relationship between the transfer object is related, and the original carrier is preserved. Preventive advice to the parties: when the divorce is agreed to make a list of property signed by both parties, stating that "there is no other joint property of the husband and wife except the list", and once the property outside the list is found in the future, the proof and claim will be much smoother.