Insights

Can Ningbo request another debt division after divorce?

Ningbo Author：LuXu WANG

When Mr. Zhang and Ms. Li divorced, they did not address the debts incurred during their marriage. After the divorce, the creditor filed a lawsuit demanding that both parties jointly repay the loan. Mr. Zhang wants to know: after the marriage is divorced, can this debt be "reaccounted"? The conclusion is: divorce does not eliminate the joint debt of the husband and wife-the joint debt of the husband and wife is not processed at the time of divorce, and after the divorce, the creditor still has the right to demand that both parties repay the debt; if one party pays more than its share, it can recover from the other party; if the debt is missed during the divorce, it can be processed separately sued. However, the premise of "re-accounting" is that the debt is indeed a joint debt of husband and wife, and to distinguish between internal recovery and external settlement is two different things.

1. legal basis: divorce does not eliminate joint debt

Article 1089 of the the People's Republic of China Civil Code stipulates that when divorcing, the joint debts of husband and wife shall be repaid together; if the joint property is insufficient to be paid off or the property belongs to each other, the settlement shall be made by agreement between the two parties; if the agreement fails, the people's court shall make a judgment. Article 35 of the Interpretation (I) of the Supreme People's Court on the Application of the Marriage and Family Code of the the People's Republic of China Civil Code stipulates: If the divorce agreement of the parties or the judgment, ruling, or mediation agreement of the people's court has dealt with the division of the husband and wife's property, the creditor Still has the right to claim rights from both men and women for the joint debts of husband and wife; after one party assumes the responsibility for the settlement of the joint debts of husband and wife, the people's court shall support the claim that the other party shall bear the corresponding debt in accordance with the divorce agreement or the legal documents of the people's court.

By combining the two articles, we can get the complete framework of divorce debt treatment: externally, creditors can always claim the settlement of joint debts to both husband and wife, and the debt sharing arrangement in divorce agreement or judgment cannot oppose creditors; internally, the debt sharing between both parties is subject to divorce agreement or judgment, and the part that one party repays more can be recovered from the other party. This is the "divorce agreement agreed to the debt to the other party, creditors still find the door" this common confusion of the system answer-the agreement to manage the "internal accounts", the law to manage the "external accounts".

The premise of the nature of debt needs to be clarified first: only the joint debt of husband and wife can be "re-settled. According to article 1064 of the Civil Code, the joint debt of the husband and wife includes the debt of the joint intention of both parties, the debt of one party for the daily needs of the family, and the debt that exceeds the needs of daily life but is used for the joint life and joint production and operation of the husband and wife (the latter is proved by the creditor). One party's personal debt (pre-marital debt, personal profligate borrowing, illegal activity borrowing, etc.) is not converted into joint debt as a result of divorce, and creditors can only claim to the borrower personally.

2. four ways to deal with debt after divorce

If you find a debt problem after divorce, there are four ways to deal with it according to different scenarios, which need to be matched:

  1. sued by creditors (external liquidation): If the creditor takes the husband and wife as the defendant, both parties shall respond to the lawsuit. If the debt is indeed a joint debt, the court orders joint repayment, one party first pays off all and then recovers from the other party in accordance with the divorce agreement or judgment, and if one party considers it to be the other party's personal debt, it shall claim and prove in the proceedings (the family income is sufficient to cover the expenses, the loan is not used for the family, etc.).
  2. Recoupment after taking over the share (Internal Recoupment): If one party has paid more than its share of the external liability, it may seek reimbursement from the other party pursuant to the divorce agreement or court judgment; if no allocation ratio was agreed upon at the time of divorce, the party may file a separate lawsuit requesting the court to determine each party’s respective share. The statute of limitations for the right of recourse is generally three years, calculated from the date of assumption of liability for liquidation, with attention to timely claims.
  3. Unprocessed debt at the time of divorce, separate prosecution for division: For the common debts (including the parts that are not mentioned and not paid off) that are missed in the divorce, the lawsuit of property (debts) disputes after the divorce can be filed separately, and the debt nature and sharing scheme can be confirmed. Such litigation is not subject to the discussion of the statute of limitations need to be cautious-the division of joint debts is of a confirmed and shared nature, with the focus on proving that "it is a joint debt of the husband and wife that was not processed at the time of divorce".
  4. the lawsuit of the fulfillment of the divorce agreement: the divorce agreement stipulates that "the debt shall be borne by one party", and if the other party fails to fulfill the agreement, the other party can sue according to the agreement to require it to bear the corresponding debt or return the advance payment -- this is the relief of internal effectiveness.

No matter which path, the first pass is to prove the nature of the debt: the party claiming the common debt (the creditor or the party recovering after external settlement) must complete the proof according to Article 1064 of the Civil Code; The party claiming personal debt must prove that the loan exceeds the daily needs of the family and is not used for common life, production and operation.

3. Debt Nature Judgment and Evidence Organization

To judge whether a debt belongs to the "unprocessed joint debt of husband and wife at the time of divorce", collect evidence around three dimensions:

  1. formation time and subject: the time and signature on the debit note, loan contract and transfer record -- formation within marriage, name of one party or both parties;
  2. The purpose of borrowing: the vouchers of common living expenses such as house purchase, decoration, children's education and family management, etc., are the core of identifying common debts; the flow of personal consumption, gambling and subsidizing the third party points to personal debts;
  3. common meaning: joint signature, ratification afterwards (chat record, joint repayment record), etc.

List of Evidence: Promissory note, bank transfer records (request a court-issued investigation order to obtain the other party’s and the payee’s transaction records to ascertain the disposition of funds), proof of joint expenditures, records of household income and expenses, divorce agreement or court judgment (to confirm the original allocation arrangement), and proof of repayment (transfer records for amounts already repaid, used for calculating recovery). For the debtor, if the money actually flows into the family's joint account or is used for a joint purchase, even if only one party signs it, it may be considered a joint debt.

4. limitation and key points of procedure

There are three groups of time limits in the procedure: first, the limitation of action for the joint debt claimed by the creditors is three years, counting from the date of the expiration of the repayment period, and the reasons for the interruption (collection, partial repayment, the other party's commitment) should be fixed in time; second, one party assumes the right of recovery after the excess share is paid off, and the limitation of action is three years, counting from the date of the actual commitment (or the expiration of the date of the agreed performance period); third, if the divorce agreement provides for debt sharing and the other party fails to perform, the prosecution performance is not subject to special restrictions but is subject to the general statute of limitations. Jurisdiction, the debt dispute sued by the creditor shall be under the jurisdiction of the court of the defendant's domicile. Note in litigation: the divorce agreement or judgment on the treatment of debt sharing (internal) and creditor claims (external) are two cases, the former can not be used as a reason against creditors, the latter can not be exempted from the obligation of internal recovery.

5. extension: execution, debt evasion and retrial relief

The divorce debt problem may also extend to three types of situations at the back end of the procedure, which need to be laid out in advance:

First, the scope of responsibility of the spouse in the execution phase. When a creditor applies for execution on the basis of an effective judgment, the joint property of the husband and wife in the name of the executed person may be seized as a whole. If the spouse considers that the debt is a personal debt of the other party or that his or her share is damaged, he or she may object to the execution in the execution procedure and request the retention of his or her share of the common property. If the judgment does not recognize the spouse as a joint debtor and only enforces execution against the property under the name of the borrowing party, the spouse generally need not intervene; however, they should be vigilant to prevent the other party from using “joint property” to evade liability.

Second, the prevention of evading debt by divorce. In order to avoid the debt "false divorce", one party agrees to own all the property to the other party and leaves the debt to himself (or vice versa), the creditor may request to cancel the debtor's free disposal of property or obviously unreasonable low-price transfer of property in accordance with the provisions of the Civil Code on the creditor's cancellation right (Articles 538 and 539); If the property has been transferred to the spouse, it can be recovered through the execution of objection or cancellation right. If the division of property in the divorce agreement obviously harms the interests of creditors, it also faces the risk of being revoked-the more the debt problem drags on, the higher the probability of property being recovered.

Third, retrial and error correction path. If the effective judgment finds that there is a mistake in the joint debt (e. g. fictitious debt by creditors, malicious collusion), an application for a retrial may be made; if new evidence is found to be sufficient to overturn the judgment after it has entered into force, an application for a retrial shall also be made within the statutory time limit (within six months after the judgment has entered into force, with special circumstances extended by permission). The retrial channel is the last line of defense for "post-correction", but the cost is high and the cycle is long. The most effective way is to thoroughly understand the nature of the debt in the original trial.

6. example deduction: two debt split scenarios

In order to understand the rule combination of "debt reaccounting after divorce", the following two scenarios show the processing paths of common situations:

Scene 1: When Wang and Li divorce, they agree that "the debt during the marriage shall be borne by Wang". After the creditor sued the two to jointly repay the marital loan of 300000 yuan, the court found that the money was used for family purchase and decoration, is a joint debt of husband and wife, ordered joint repayment. After paying off 300000 yuan first, Li recovered 150000 yuan (share) from Wang according to the divorce agreement-the agreement was valid within the agreement and Li's recovery was established. If the divorce agreement stipulates that the debt belongs to Wang and there is no internal share agreement, Li can recover all the paid-off part. This scenario illustrates that the external obligation of “joint and several repayment” and the internal right of “recourse according to the agreement” operate on two distinct levels; settling the external obligation first and then seeking recourse internally is the standard procedure.

Scene 2: Zhao did not deal with any debts when he divorced. Two years after the divorce, the creditor of the ex-husband Zhang sued Zhao, claiming that the 400000 yuan borrowed by Zhang during his marriage was a joint debt. Zhao argued that the loan exceeded the daily needs of the family, the money went into Zhang's personal account for his personal investment, and the family income was sufficient to cover the expenses. After reviewing the transfer flow and family income and expenditure, the court determined that the money was not used for the husband and wife to live together and belonged to Zhang's personal debt, and rejected the creditor's request to Zhao. This scenario shows that not dealing with the divorce does not mean "default common", the nature of the debt is still re-examined according to the rules of proof in Article 1064 of the Civil Code, and the evidence of the non-borrower's family income and expenditure vouchers and the flow of funds is the key to winning the case.

The practical conclusion that the two scenes point to together is: the divorce agreement should write down the debts (list them one by one + undertake the plan), keep all the vouchers (record of loan, transfer and repayment) in daily life, clarify the nature when being sued (actively respond to the lawsuit instead of being absent), and put the recovery on the agenda after paying off (claim within the three-year limitation period).

class case reference: the divorce agreement stipulates that a certain debt in marriage shall be borne by the defendant, and the agreement is legal and valid, but it is an internal agreement and has no effect against the third party; after the creditor sues, the plaintiff actually compensates 30000 yuan, and has the right to recover from the defendant according to the agreement. It can be seen that divorce does not eliminate the common debt, internal recovery, external still have to bear responsibility. Trial court: Zhejiang Xiangshan County People's Court Case No.:(2012) Yong Xiang Shi Min Chu Zi No. 58; Source: Ningbo Local Marriage Case Bank.

7. Frequently Asked Questions

Do debts that were not addressed during the divorce still need to be repaid after the divorce?

If it is a joint debt of the spouses, it must be repaid. The divorce agreement or judgment does not deal with the debt, which does not affect the creditor's claim to the two parties, and the two parties may determine the sharing scheme through separate prosecution, and the recovery of more than one party. In the case of a party's personal debt, the creditor can only claim against the borrower.

The divorce agreement states that "the debt belongs to the other party". Can the creditor still find me?

Yes. The debt-sharing agreement of the divorce agreement is only valid within the husband and wife and cannot be used against bona fide creditors. After you pay off more than your share, you can recover from the other party in accordance with the agreement-the "agreement" protects your right of recovery, not your right of exemption.

After the divorce, I just found out that my ex-spouse had accumulated a large amount of debt. What should I do?

First, verify the nature of the debt: whether the loan was incurred during the marriage and whether it was used for the common living expenses or business operations of the family. Debts incurred for the common household are considered joint debts, and a separate lawsuit may be filed to determine the allocation of liability; debts incurred for personal extravagance, gambling, or purposes unrelated to the family should be asserted as individual debts, and such claims should be vigorously contested in litigation. At the same time, check whether the other party uses divorce to transfer property to evade debts, involving malicious collusion, can confirm the relevant disposition through litigation is invalid.

If you paid off a joint debt on behalf of the other party, can you recover the portion you overpaid?

Yes. After one party has assumed liability for the repayment of a joint marital debt, it may, pursuant to the divorce agreement or a final court judgment, seek recovery of the corresponding share from the other party; if the agreement is silent on this matter or the terms are unclear, the party may file a separate lawsuit requesting the court to determine the respective shares and seek reimbursement. Pay attention to the three-year statute of limitations for the right of recourse, starting from the date of actual settlement.

8. Practical Insights from a Lawyer

Many people think that "I have nothing to do with the debt after divorce", and some people think that "I don't have to pay it back without signing". These two ideas may fall through. First, you need to separate these two issues: externally, creditors may still require both of you to jointly repay the debt; internally, the question of how much each of you ultimately bears is a separate matter. Therefore, in the face of the debt that suddenly pops up after divorce, the first step is not to deny it in a hurry, but to judge whether it belongs to the common debt and whether it is beyond the reasonable range, and then decide whether to negotiate and defend, or to pay off the debt to the outside world before recovering from the other party.

Debts overlooked during divorce can still be pursued in a separate lawsuit afterward—don’t give up just because “the divorce is already final.” When organizing the evidence, focus on the purpose and formation of the debt: the time of borrowing, the amount, the recipient’s account, and the flow of funds. Determine whether the funds were used for the family’s daily living expenses or for joint business operations, or for the other party’s personal consumption.If the creditor has sued, to respond to the lawsuit on time, to raise a defense, absence is often tantamount to acquiescence. For the part that has been paid back for the other party, keep the repayment voucher as the basis for future recovery, and don't let a sum of money be proved afterwards.

The agreement on who should bear the debt in the divorce agreement or judgment mainly binds you internally and usually cannot be used against bona fide creditors, so don't think that everything will be fine if you write the sentence "all the debt belongs to the other party. To reduce risk, divorce tries to put all known debts in a row, share them clearly, and keep clues about the other party's debts. If the other party is aware of signs of debt evasion and fictitious debt by divorce, fix the evidence in a timely manner and consider the corresponding way of revocation or alternative litigation. The debt problem is most afraid of procrastination, and the sooner the purpose and evidence are sorted out, the less likely it is to be dragged into a passive situation.

The answer to the question of whether the debt can be "re-divided" after divorce depends on the nature of the debt and the timing of its treatment: the common debt is not extinguished by divorce and creditors can claim it at any time. Suggestions to the parties: First, try to list the debts and the way of commitment one by one in the agreement during divorce, and state "joint debt list + respective commitment plan + reservation of recovery right" to avoid ambiguity leaving future troubles; Second, keep the loan voucher, transfer record and repayment record. When the nature of the debt is disputed, the time and purpose evidence will be formed at the first time. Third, actively respond to the lawsuit when being sued by creditors and advocate personal debt defense, do not be passively absent because of the "divorce agreement written to the other party"; Fourth, if the external repayment exceeds its share, it shall promptly recover from the other party and pay attention to the three-year statute of limitations; Fifth, if the other party is found to conceal debts or evade debts through divorce, it shall promptly confirm the invalidity of the relevant arrangements through litigation and safeguard its own rights and interests.