Insights

What are the consequences of transferring the joint property of husband and wife in Ningbo divorce?

Ningbo Author：LuXu WANG

Mr. Li transferred the joint deposit of husband and wife to his mother's account in batches half a year before he sued for divorce. In the trial, he claimed that "the money has been used for family expenses". The wife raised doubts but failed to present a complete chain of evidence. This is the most common and emotionally damaging behavior in divorce cases. Direct conclusion: if the husband and wife hide, transfer, sell, destroy or squander the common property of the husband and wife during divorce, or forge the joint debts of the husband and wife in an attempt to encroach on the other party's property, the divorce may be divided less or not (article 1092, paragraph 1, of the civil code); If the other party is found to have done so only after divorce, it may be sued separately within three years from the date of discovery (paragraph 2 of the same); if it has been discovered during marriage, it may be requested to divide the common property within the proposal according to Article 1066, and may apply for property preservation. The transferor not only "cannot save money", but also loses points on related issues such as custody and damages-transferring property is the least cost-effective operation on the battlefield of divorce.

1. Which behaviors constitute "transfer"?

The types of acts listed in the law include concealment, transfer, sale, destruction, squandering of common property and forgery of common debts (Article 1092 of the Civil Code). Common forms in practice:

  1. Concealment: not to declare bank deposits, financial products, equity, overseas assets, or to open an account in the name of others;
  2. transfer: transfer large amount of money to parents, relatives, friends and extramarital objects; sell off the shared real estate and vehicles at a low price;
  3. squandering: abnormally high consumption and gambling expenditure in a short period of time; Article 6 of the (II) of explanation makes it clear that if one party rewards the couple's joint property on the network broadcast platform without the consent of the other party, the amount obviously exceeds the general consumption level of the family and seriously damages the interests of the couple's joint property, it can be regarded as "squandering", and the other party can ask for a split in marriage proposal or split in divorce;
  4. Disposition of property for extramarital purposes: Article 7 of the (II) of interpretation makes it clear that if one party violates the duty of husband and wife for bigamy, cohabitation and other purposes, and gives the common property of husband and wife to others or disposes at an obviously unreasonable price, the donation behavior violates the public order and good customs and is invalid, and the other party can recover it, and can claim for the party to divide less;
  5. Forgery of debt: colluding with a third party to make fictitious loans and issue false IOUs in an attempt to "cut away" a piece of cake before the division.

The boundary is equally important: normal family living expenses, reasonable investment and financial management, payment of alimony and alimony, do not belong to the transfer of property; this article does not apply to the disposition of personal property before marriage; only the behavior that subjectively has the malice of damaging the other party's property rights and interests and objectively leads to the reduction of common property is constituted -- simply "less money" is not enough to be identified, and must be supported by the evidence of capital flow and abnormal.

Three Progressive Levels of 2. Legal Consequences

  1. Less or no division in divorce division: the court gives the transferor less division in the division of common property, and if the circumstances are serious, it can be partially divided; "No division" refers to the transfer part is not divided, and the extreme judgment of "all property is not divided" rarely occurs in judicial practice. In most cases, it is decided that the transferor should divide the transfer part by 10%-30% or reduce it by a certain proportion;
  2. Division within marriage: If the transfer behavior seriously damages the interests of common property, the other party can sue for division of common property without divorce (Article 1066 of the Civil Code), and apply for preservation to prevent the continued loss of assets;
  3. Prosecution after divorce: If the transfer behavior is discovered after divorce, it can be sued for division again within three years from the date of knowing or should have known (the second paragraph of Article 1092 of the Civil Code applies three years of ordinary limitation of action, counting from the date of discovery). The divided property is dealt with in accordance with the agreement or judgment at the time, and the prosecution is only for the transferred part.

3. the evidence play of the transferred party

Found that the other party has signs of transfer, fix the evidence and take action in the following order:

  1. Apply for property preservation immediately: apply for freezing the bank account of the other party before the lawsuit or in the lawsuit, and seal up the real estate and vehicles to prevent the assets from continuing to be transferred; if the preservation needs to provide guarantee, you can apply for the insurance company to issue a letter of guarantee to reduce the capital occupation;
  2. Transfer of bank flow: apply for the court investigation order or apply for the court to transfer the transaction flow of the other party and its related accounts for nearly one to two years (extend to three years if necessary), and lock the time point of large transfer and the payee;
  3. Identifying suspicious transactions: Pay attention to characteristics such as multiple large transfers within a short period, frequent cash withdrawals, transfers to parents and relatives, deposits into accounts with no business relationship, and transfers to overseas accounts.
  4. Extend asset inquiry: real estate registration information (Zhejiang office, registration center), vehicle registration, securities account, insurance policy (Jinshitong), equity (national enterprise credit information publicity system), to prevent the other party from "turning" the deposit into other asset forms;
  5. Fixed subjective malicious evidence: the chat records of the sudden disposal of property before divorce, the description of financial transactions with the third party, the recording of the transfer of the other party's self-admission, etc., to prove the "malicious" elements;
  6. advocated less or no division in the lawsuit: put the transfer amount and flow direction into a table and submit it to the court, requesting the court to give less or no division to the party according to article 1,092 of the civil code.

4. Common talking points of the transferring party and countermeasures

  1. "The money has been used for household expenses": counter-measures-to require the other party to provide expenditure vouchers, the court will not be credulous if the normal household expenses and the large abnormal transfer-out do not match in time and amount;
  2. "This is to repay my mother's loan": Countermeasure -- Require to provide the loan contract, transfer record and the formation time of the debit note, and the proof force of the debit note written afterwards is weak;
  3. "The money was taken out and lost/stolen": Countermeasure-the abnormality of cash withdrawal behavior (the time is concentrated on the eve of divorce) combined with other evidence to determine the transfer.

Boundary Issues in 5. Preservation, Prescription and Enforcement

Several procedural boundaries in transferring property disputes must be clarified:

  1. Time limit of property preservation: the preservation before litigation must be sued or applied for arbitration within 30 days after the court takes the preservation measures, and the court rescinded the preservation within the time limit; the preservation in litigation lasts until the execution of the judgment. The scope of preservation is limited to the amount requested or the property related to the case, and if the loss is caused by the preservation beyond the scope, the applicant shall compensate-the application for preservation should be "sufficient and stop", rather than abuse;
  2. Preservation guarantee: in principle, a guarantee must be provided when applying for preservation, and the insurance company can issue a litigation preservation liability insurance policy to replace the cash guarantee to reduce the occupation of funds; the Ningbo court reviews the qualified preservation application quickly, and the key is that the property clues are clear (account, bank, real estate location);
  3. The limitation of re-division starts: The lawsuit of re-division in the second paragraph of Article 1092 of the Civil Code is subject to the three-year limitation of action, which starts from the date when the other party knows or should know the transfer behavior -- "know" is subject to the clue found (such as accidentally seeing the transfer record), rather than the written admission of the other party, so the evidence should be fixed and sued as soon as possible if any abnormality is found, to avoid losing power by "knowing it long ago but delaying;
  4. The boundary between the citizens and the citizens of the transfer behavior: the transfer of common property in the divorce lawsuit generally belongs to the civil category, which can be solved by dividing the common property less and dividing the common property again; however, when the judgment enters into the execution stage after it comes into effect, the person subject to execution conceals or transfers the property, which may constitute the crime of refusing to execute the judgment or ruling; the other party gets concessions by forging debts, it may also involve legal liability for false litigation -- the transfer of property is not a "zero-cost operation";
  5. Divorce Agreement and Creditor Revocation: If the other end of the transfer behavior is to "give the property to the other party and bear the debt by itself when divorce is agreed" to avoid external debts, the creditor can request to revoke the property division clause in the divorce agreement according to Article 538 of the Civil Code and Article 3 of the Interpretation (II)-if he wants to evade debts by divorce, the agreement may also be broken down.

The final reminder to the "transferred party": All relief measures (preservation, water transfer, claim for less points, and re-division) are based on the premise of "timely discovery". During marriage, it is necessary to keep informed of family assets-check accounts regularly and keep large expenditure vouchers. It is not distrust, but the basic management of one's own rights and interests.

6. common property forms that are easy to be "hidden"

In addition to bank deposits, the following forms of assets are often "hidden" by the transferring party, which should be included in the scope of common property by checking one by one:

  1. housing accumulation fund and housing subsidy: the housing accumulation fund and housing subsidy actually obtained or should be obtained during the existence of the marital relationship belong to the joint property of husband and wife (Article 25 of the (I) of interpretation) -- the marital part of the balance of the other party's accumulation fund account can be divided when divorcing, and the advocate can apply for access in the lawsuit;
  2. Individual pension account: The basic pension that should be obtained during the existence of the marriage relationship belongs to the common property, and the corresponding rights and interests can be divided when divorcing (Article 25 of the (I) is explained), but it is generally converted by the expected rights and interests corresponding to the payment in marriage, rather than directly withdrawn;
  3. equity and partnership share: the equity of the company registered in the name of the other party, the equity held in the name of others, the limited partnership share, through the national enterprise credit information publicity system and industrial and commercial file query, the holding of the need to be combined with the investment flow certificate;
  4. Cash value of insurance policy: the cash value of the large-value life insurance policy belongs to the property of the policyholder, and the part of the joint payment after marriage is the common property (see the relevant articles of insurance), which can be queried with the insurance company through the "JinShitong" App;
  5. Securities and financial accounts: stocks, funds, securities firms, bank financial management, you can apply to the court to obtain securities accounts and bank account transaction records;
  6. Virtual property: new property such as online shops (such as the management right and inventory of e-commerce platform shops), we media account income, digital currency and so on. The court has gradually included them into the scope of division. The dispute lies in the valuation, and the claiming party must provide the account and flow clues;
  7. Valuable movable property: gold and silver jewelry, famous watches, calligraphy and painting antiques, vehicles, which can be traced by buying bills, safe records, photos of friends and other clues.

Operation Tips: The premise of checklist query is that "there are clues before applying", and the court investigation order needs clear accounts and institutional clues; for the spouse's salary card, provident fund account number, common bank account opening bank, etc., you should pay attention to the records during marriage-this is not called calculation, it is called basic knowledge of common property. If the property declared by the other party is obviously inconsistent with the actual situation, it may be required to explain the whereabouts of the difference. If it refuses to explain, the court may determine that it is concealed and less points.

7.'s accountability and recovery path for transfer behavior

The transfer behavior not only affects the split ratio, but also has independent recovery and accountability paths:

  1. Recovery of extramarital gifts: If one party uses the joint property of husband and wife to give to the mistresses' (transfer, purchase of house, purchase of car), the gift is invalid because of violating public order and good customs (Article 7 of the (II) of interpretation), and the other party can sue for return in his own name-two evidences of "joint property of husband and wife" and "gift" are needed, and the key evidence of transfer and relationship;
  2. Recovering the price difference of disposition at a low price: if one party sells the common property to the related party at an obviously unreasonable low price, the other party can claim the contract is invalid or claim for the loss of price difference;
  3. pursue the responsibility to the third party who cooperated in the transfer: the third party can be listed as a co-defendant or pursue the property during the execution if he knew that the property belongs to the common property of husband and wife and still cooperated in the transfer (such as assisting in the transfer of ownership or collecting large amount of money on behalf of husband and wife);
  4. The risk of criminal liability for debt forgery: for those who collude with fictitious debts and submit false evidence in the lawsuit, the court can impose fines and detain them according to the circumstances; for those who constitute a crime (the crime of false lawsuit, the crime of helping to forge evidence, etc.), they should be transferred to be investigated for criminal liability-the act of forging debts in an attempt to embezzle the property of the other party, which is prohibited by Article 1092 of the Civil Code;
  5. Addition in the execution stage: if the other party transfers the property to an outsider after the judgment, the third party's property can be added or executed if it meets the legal circumstances. If the circumstances are bad, the crime of refusing to execute the judgment or ruling will be investigated.

Limitation and jurisdiction of the path of recovery: The lawsuit of return of extramarital gifts is subject to the limitation of action for three years, counting from the date when the facts of the gift are known; the jurisdiction is generally the court of the domicile of the defendant (the payee). By advancing the two lines of "less points during division" and "external recovery" at the same time, the transferor will find that the transferred money cannot be retained.

class case reference: the court of second instance thinks that if one party hides and transfers the common property, the other party can request to divide it again and claim less division or no division, and the limitation of time shall be calculated from the date of discovery; however, the evidence must be provided to prove the transfer behavior and time point. if the other party knows it in marriage, it can be regarded as completed and the request for division again cannot be supported. Trial Court: Case No. of Ningbo Intermediate People's Court of Zhejiang Province:(2019) Zhejiang

02Minzong No. 3501

8. Frequently Asked Questions

Does the money transferred to parents count as a transfer of property?

see whether there are reasonable reasons and evidences: if there is a clear agreement on the loan and the real transaction (the parents have indeed contributed capital before and the transfer can correspond), it may be regarded as the repayment of the loan or the arrangement of maintenance; if the large amount of transfer is unexplained and concentrated on the eve of divorce, it tends to be regarded as the transfer of property.

If you use marital property to buy a house for your parents, does that count as asset transfer?

If the amount is large and the divorce is registered in the name of the parents without the consent of the other party, the possibility of transfer is very high; if it is a long-term maintenance arrangement and there is a reasonable explanation, the court will handle it at its discretion.

It took more than a year after the divorce to discover that the other party had transferred the property. Can you still sue?

Can. The statute of limitations for re-division under article 1092, paragraph 2, of the Civil Code is filed within three years from the date of discovery (knowledge or should have been known) of the transfer, regardless of the length of the divorce-the part of the transferred property not dealt with in the original divorce judgment or agreement is still recoverable.

Is it a transfer if the other party transfers the deposit to the stock market or buys the financial management?

Normal investment and financial management generally does not constitute a transfer-the funds are still common property and can be checked; however, if the funds are transferred through other people's accounts, before the divorce, and the whereabouts cannot be explained, or if the funds are cashed out and transferred quickly after the investment, they may be identified as hiding and transferring common property. The key is to see whether the funds are out of the husband and wife's control and whether there is a reasonable explanation.

9. Lawyer's Practical Insights

When suspecting the other party to transfer the property, many parties put all their energy on "grasping the current situation". In fact, the more effective order is to fix the flow first and then judge the nature. Abnormally large expenditures in the bank's running water, continuous transfers to parents or relatives, and sudden low-cost sales are all clues, but "less money" alone does not mean a legal transfer. What you have to do is spell out the timeline and the path of the funds: from which account, at what node, in what name, to whom the money was transferred. It is much more useful to compile these into a clear list than to repeatedly emphasize in court that "he is hiding the money.

Once it can be proven to be a transfer, the consequences can be claimed on top of each other. In addition to requiring the other party to divide less at the time of division and not dividing the transferred part when the circumstances are serious, if it is discovered within marriage, it can also be considered to directly request the division of common property without divorce. If it is discovered only after divorce, it is necessary to keep an eye on the statute of limitations from the date of discovery and prosecute separately as soon as possible. This line often doesn't have to wait for a verdict-the evidence is shown first, and then the preservation application is coordinated to prevent the continued loss of assets, and the other side's attitude usually softens significantly. Many transferors are not afraid of being identified, but of having their assets frozen and their business, loan repayments and day-to-day expenses fully constrained.

in the negotiation, the other side's common saying is "all the money is spent at home". At this time, there is no need to rush to refute, but to ask it to give a bill and purpose for each large expenditure, the unclear part will naturally reveal a flaw. Also pay attention to some imperceptible forms, such as opening an account in the name of others, holding shares on behalf of others, large live rewards, etc. On the other hand, you should also keep your bottom line: don't hand over all the property cards during the negotiation period, and don't sign general settlement clauses. The really safe thing to do is to hold the control points of executable property in hand while talking.

The result of transferring common property can be summed up in one sentence: the money is not transferred much, and the cost is a little less-less points, no division, division within marriage, three-year prosecution, preservation freeze, plus negative evaluation on custody and damage compensation. For the transferred party, remember the word "quick": immediately preserve the signs found, immediately adjust the flow of water, immediately fix the malicious evidence, and every day the time is delayed, the risk of loss of funds will increase. For the party who wants to "keep one hand", the advice is: the division of divorce property solves the "share of the share". By transferring and encroaching on the other party's share, the litigation cost, trust cost and legal consequences will all fall back on themselves. Break up respectably and never do little things to start.