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Can Ningbo repay the debt for the other party after divorce?

Ningbo Author：LuXu WANG

Can you get the money back if you pay off the debt for the other party after divorce? First, give the conclusion: Can you recover it? The first step is to see whether this debt is the joint debt of husband and wife or the personal debt of the other party-if you pay off the debt for the other party, you can recover it in full; the part of the joint debt that you pay for the other party can be recovered according to your share. A divorce agreement stating that “debts are assigned to the other party” is only effective between the spouses and does not bind external creditors. However, as long as you retain proof of repayment on their behalf and evidence regarding the nature of the debt, the law provides a clear avenue for the reimbursing party to seek recourse; after making the payment, the outstanding liabilities can still be properly settled.

1. first distinguish between common debt and personal debt

Article 1064 of the Civil Code of the People's Republic of China stipulates: "Debts incurred by both spouses through a joint expression of intent, such as when both sign together or when one spouse subsequently ratifies the debt, as well as debts incurred by one spouse in their own name during the subsistence of the marriage for the daily needs of the family, shall be regarded as joint debts of the spouses." Debts incurred by one spouse during the subsistence of the marriage, in that spouse’s own name and exceeding the ordinary needs of daily family life, do not constitute joint debts of the spouses; however, this does not apply if the creditor can prove that the debt was used for the common life of the spouses, for their joint production and business operations, or was incurred pursuant to a joint expression of intent by both spouses. "Accordingly, there are three levels of recognition of a common debt: a common expression of intent (co-signature, ratification); in the name of the individual but for the daily needs of the family; and beyond the daily needs of the family but for which the creditor can prove that it is used to live together, operate together or have a common expression of intent. The first two layers of presumption are established, by the party claiming personal debt, and the third layer of burden of proof is in the creditor-this is the civil code established by the "co-debt co-signing" and the distribution of evidence rules.

If the nature of the debt is clearly judged, the direction of recovery will be determined: if the debt belongs to the common debt, the two should have paid it together, and one party has the right to recover the overpayment from the other party for the part that exceeds its share; if the debt belongs to the other party, the other party should have borne it alone, after the replacement can be fully recovered-in this case "not to return" will not produce moral responsibility, but once the replacement must keep the voucher, otherwise the other party may claim is a gift or voluntary settlement.

2. the divorce agreement to write that the debt belongs to the other party, can you fight against the creditor?

Many people assume that once a divorce agreement stipulates that the debt is to be borne by the other party, they are completely free of it. In fact, the provisions in a divorce agreement regarding the allocation of debts are only effective between the spouses and cannot be enforced against external creditors. Creditors may still claim from both parties in accordance with the statutory rules: if they are joint debts, they may require either party to pay off all of them; after the creditor recovers from one party on the basis of an effective legal instrument or a divorce agreement, the party will recover from the other party in accordance with the internal agreement. Ningbo Intermediate People's Court "to the case" "divorced," account "how to calculate?" (2014-08-05) clear: the divorce agreement on the debt of the third party (creditors) invalid, but between husband and wife can recover afterwards. In order to be responsible to the creditors first, and then go back to the other party to settle accounts, this is the basic logic in practice, don't make the reverse order, otherwise may fall through the two ends-external refusal to pay off will be sued by the creditors and enter the implementation, the internal and because there is no substitute for the certificate and can not be recovered.

Legal basis and scope of recovery after 3. replacement

The right of one party to claim compensation from the other party after assuming the responsibility of paying off the joint debts of the husband and wife originates from the convergence rules of Article 1089 of the Civil Code (the joint debts of the husband and wife shall be repaid together when the joint property is insufficient to pay off or the property belongs to each other, the two parties shall agree to pay off, and the people's court shall decide if the agreement fails) and judicial interpretation. For common debts, one party shall have the right to recover from the other party in accordance with the share determined by the divorce agreement or the effective decision, and the individual debts shall be borne by the other party alone, and can be fully recovered after the full repayment. The essence of recovery is to settle the relationship between husband and wife.

The scope of recovery varies due to the different nature of the debt: the common debt recovers the overpayment according to the internal share (for example, if it is agreed that half will be recovered, if it is agreed that the other party will be fully recovered); the other party's personal debt can claim the full amount and reasonable interest for repayment, and the calculation method should be clearly written when claiming. In addition to the principal, any interest incurred as a result of the repayment, as well as the necessary expenses for enforcing the creditor’s rights (such as litigation fees, preservation fees, and enforcement fees), may also be claimed, provided they meet the relevant requirements. In addition to the amount, it also depends on the ability of the other party to repay: the most common practical problem in recovery cases is to win the judgment but not to execute the money, and it is more important to assess the other party's property status (wages, real estate, accounts) before prosecution and to apply for property preservation when suing than to simply "win the case.

List of 4. evidence: making recovery tenable

The evidence of the recovery case focuses on two points: "the fact of repayment + the nature of debt", which are hard to be supported:

  1. Original debt instruments: loan contracts, promissory notes, IOUs, and final and binding court judgments, to prove the genuine existence of the debt;
  2. Evidence of the nature of the debt: materials that prove the personal debt of the other party (the debit note only has the signature of the other party, the money is not used for family life, the other party's self-admission, etc.), or the internal sharing agreement of the common debt (divorce agreement, marital property agreement);
  3. Repayment voucher: bank transfer receipt, payment records, transfer notes that "repayment of XX debt (loan)" is the best; receipt confirmation issued by the creditor;
  4. Collection and defense records: the collection letter of the creditor, the chat record of the other party admitting the arrears or refusing to repay;
  5. The other party's property clues: bank account, real estate, vehicle, salary and income information, which are used in the execution stage.

Transfer notes are the details with the lowest cost and the highest value: when paying back, write "pay back the debt on behalf of XX", which can prevent the other party from claiming "that is a gift" or "that is a common living expense" afterwards, so that the nature of paying back is clear at a glance.

5. the other party lost or refused to return: how to recover

Recovery is most afraid of the other party's disappearance or verbal promise but no money. Getting the court documents is only the first step. If you really want to get the money back, you have to rely on execution: after winning the lawsuit, you should submit the other party's bank account, real estate, salary income and other property clues to the execution court in time, and apply for seizure, freezing and deduction; If the other party refuses to perform and has the ability to perform, it may apply for inclusion in the list of those who have broken their promises and restrict high consumption. In the case of "the whereabouts of the other party are unknown after divorce", it can be served by public announcement, and the execution will be entered after the judgment is absent, and the property will be found through the inspection and control system during the execution. Ningbo parties can submit property clues through the mobile micro-court or the enforcement window, and the enforcement judge can inquire about deposits, real estate and vehicles through the network inspection and control system according to his authority, and cooperate with the clues provided by the applicant. Recovery doesn’t end with the issuance of a judgment; closely monitoring the enforcement phase is the crucial step that ensures the money is actually recovered.

6. common mistakes

  • Misconception 1: If the divorce agreement stipulates that the debts are to be borne by the other party, you are completely relieved of responsibility. positive solution: if the internal agreement cannot be used against external creditors and belongs to common debts, the creditors can still claim from both parties; after paying off, they can recover from the other party according to the agreement.
  • Myth 2: If you pay off someone else’s personal debt, you just have to accept it as a loss. Positive solution: the other party's personal debt should be borne by itself, and it can be recovered in full after being repaid. The law leaves relief exports for the liquidating party, and the key is to keep the repayment certificate.
  • Misconception 3: The remarks when making a transfer don’t matter.Correct answer: The transfer note “Repayment of XX debt” serves as key evidence to establish the nature of the repayment. A transfer without such a note may be construed as a gift, a general transaction, or shared living expenses.
  • Myth 4: You can get money if you win the lawsuit.Correct answer: Enforcement is the key to ensuring that a judgment is actually satisfied. If the other party has no assets or their whereabouts are unknown, the judgment will remain unenforceable. Therefore, assess the other party’s financial situation before filing suit, apply for asset preservation when filing, and continue to provide relevant leads during the enforcement phase.
  • Misunderstanding 5: After several years, it cannot be recovered. Positive solution: the right of recovery applies to the three-year statute of limitations, which starts from the date when you know or should know that the right is damaged (usually the replacement is completed), and you should claim it in time after the replacement, but the delay may lead to the defense of limitation.

Cause, jurisdiction, limitation and preservation of 7. recovery action

The procedural details of a recovery case determine success or failure. In terms of the cause of the case, according to the focus of the dispute, you can choose "dispute over the right of recovery" or "property dispute after divorce": in order to recover according to the agreement after repayment, the dispute over the right of recovery is used; together with the undivided property at the time of divorce, the property dispute after divorce is used. Jurisdiction, by the defendant's domicile or habitual residence of the grass-roots people's court jurisdiction, Ningbo can be accepted by the grass-roots courts. In terms of limitation, the right of recovery applies to the three-year statute of limitations, starting from the date on which the right is known or should have been known to be impaired, and in practice usually starting from the date on which the debt is paid off-the right should be claimed in a timely manner after the payment is paid off, and a prolonged delay will encounter a statute of limitations defense. Preservation and enforcement: if the other party is found to have the risk of transferring property during the prosecution, apply for property preservation (freezing accounts and sealing up real estate vehicles); After winning the lawsuit, apply for compulsory execution in a timely manner, submit clues to the other party's property to the enforcement court and apply for online investigation and control; If the other party refuses to perform and has the ability to perform, it shall apply for inclusion in the dishonest list and restrict high consumption so as to promote active performance under execution pressure. In cases where the other party’s whereabouts are unknown after divorce, service by public notice and default judgment may be applied; during the enforcement phase, property may be traced through the asset‑search system, and rights shall not be relinquished simply because the person cannot be located. When presenting evidence, make sure to have all three documents ready: the bank receipt for the repayment on your behalf, proof of the nature of the debt (such as an agreement or court judgment), and records of debt collection efforts and acknowledgment of the debt. With these three documents in hand, your claim for reimbursement is virtually assured.

Class Case Reference: The divorce agreement stipulates that the common debt shall be borne by the defendant, and the plaintiff claims for compensation after paying off on behalf of the defendant. The court orders the defendant to return the plaintiff's compensation of 130000 yuan and pay the interest loss. It is stipulated that after one party has repaid a debt that should have been borne by the other party, it may seek reimbursement from the other party in accordance with their agreement. Trial court: People's Court of Ninghai County, Zhejiang Province, Case No.:(2019) Zhejiang 0226 Minchu No. 4089; Source: Ningbo Local Marriage Case Bank.

8. Frequently Asked Questions

After the divorce, the creditor sued me and asked me to repay the debt of my ex-husband (ex-wife). What should I do?

First examine the nature of the debt: if it is not a joint debt, claim not to bear the responsibility and provide evidence (the debit note is not signed together, and the money is not used for the family); if it is a joint debt, it can be recovered from the other party according to the divorce agreement after settlement. When responding to the lawsuit, prepare the divorce agreement, debt certificate and evidence of the flow of funds, and apply for the addition of the other party as a co-defendant if necessary.

Does the money paid for the other party's debts count as common property expenses?

If the payment for the personal debt of the other party comes from the common property of the husband and wife or the personal property after divorce, and belongs to the settlement on behalf of the other party in nature, it can claim recovery; if it comes from the common property and is used to settle the common debt, it belongs to the internal settlement of the common debt and is settled according to the share. The key remains the source and use of funds.

If the other party has no money, is it necessary to fight a lawsuit?

It is necessary but necessary to have strategies: first evaluate the other party's property clues, and then sue if there is property preservation; if there is no property, continue to pay attention to the property status after the judgment confirms the creditor's rights, and resume the execution at any time; at the same time, consider flexible schemes such as mediation and staging to avoid the failure of the execution of the judgment.

Is there a statute of limitations for recovery? Since when?

Yes, the general statute of limitations is three years. Counting from the date on which the right is or should have been known to be impaired, it is usually the date on which the repayment of the debt is completed. If the time limit expires and the other party raises a defense, the claim for recovery may be rejected.

How to refute the other party's claim for replacement or "voluntary donation?

Speak with transfer notes and collection records: if the notes indicate "paying back XX debt", the nature is clear as compensation; if the notes are blank, it can be combined with the debt sharing clause in the divorce agreement, the creditor's collection object and process, and the chat record of the other party's confirmation of repayment afterwards to prove that both parties have the agreement of "advance payment before settlement" and refute the defense of gift.

When paying the debt for the other party, the other party verbally promises to "pay me back later". Is this kind of promise useful?

Useful but fixed. The oral promise needs other evidence to support it in the lawsuit. It is suggested that the other party be required to issue a written IOU or confirm the repayment arrangement in WeChat, stating the amount, repayment period and interest. Written confirmation also serves to interrupt the statute of limitations, killing two birds with one stone.

Can recovery claim interest and fees?

Can. Interest on the occupation of funds arising from the repayment, litigation fees for the recovery of expenses, preservation fees and execution fees, which meet the conditions, may be claimed together.

Practical experience of 9. lawyers

After the divorce, he paid the debt for the other party. Whether he could get it back or not, the first step was not to find the other party's theory, but to make clear the nature of the debt. In principle, the debt that should have been borne by the other party can be recovered in full. The conclusions and amounts of the two are very different, and it is easy to lose out on the amount if you rush to claim without a clear qualitative understanding. First, the question of whose debt this debt is is resolved, and then the recovery will have a foothold.

Evidence is the lifeblood of recovery. After you pay it back, keep repayment vouchers, bank flow, transfer records, and materials that reflect the purpose and nature of the debt, proving that the money should not have been borne by you or should not have been borne by you alone.It should also be clear: the divorce agreement says that the debt belongs to the other party, which is only binding between you and cannot stop external creditors. However, as long as the documents are complete, the law does leave you an outlet for internal recovery, and the account can still be calculated after repayment. Don't think that you have nowhere to recover what you have paid just because of an agreement.

If the other party loses contact or refuses to return it, the recovery must be truly landed. You can bring a lawsuit on the corresponding amount, pay attention to the choice of case, the court of jurisdiction and the statute of limitations, the starting point is closely related to your repayment time, too long may not even have the opportunity to claim. Considering the possible transfer of property by the other party, it is more effective to consider preservation simultaneously when suing than to wait until the judgment is executed. During the whole process, we should maintain restraint and evidence awareness, and try our best to write down the communication, neither intensifying the contradiction nor leaving room for the other party to push off.

The answer lies in the two variables of "the nature of the debt + the repayment certificate" whether the debt can be recovered for the other party after divorce. For the liquidating party: let the other party or creditor explain the nature of the debt before repayment, and state "repay XX debt on behalf of XX" in the transfer note when repayment is made, and claim compensation according to the divorce agreement in a timely manner after repayment; For the other party: the debt clause in the divorce agreement should be specified (which debt, who will bear it and how to settle it) to avoid "general attribution" in the future. Whether joint or personal debt, written vouchers are the only basis for you to get your money back later, and losing vouchers is tantamount to losing the initiative.

The "last mile" of the recovery is in execution. After winning the case, Ningbo parties should apply for compulsory execution and online investigation and control as soon as possible, and include the other party's salary income, provident fund, pension account and Alipay WeChat balance into the scope of execution. If the other party has a fixed job, it can apply for a certain proportion of monthly salary income to be withheld, transforming "one-time execution cannot" into "continuous performance". In the process of execution, if the other party discovers the transfer of property, it shall promptly apply for the addition of the person to be executed, file an objection to execution or provide clues to refuse execution, so that the recovery judgment can really become the money to the account.