How did the Ningbo court determine the transfer of common property?

One party suspects that the other party transfers the joint property of the husband and wife, and the court may not support it. Many people do not understand why the court only checks the running water one or two years before the divorce and does not turn over the old accounts. First of all, the conclusion is that the focus of the court's review is the abnormal outflow of funds after the obvious deterioration of the relationship between husband and wife, including large cash withdrawals, frequent transfers to relatives without economic contacts, sudden purchase of insurance and financial management, low-cost disposal of assets, etc.

The reason for the deterioration of feelings is that the daily income and expenditure during the marriage is difficult to restore one by one, and it is unnecessary. Narrowing the scope of the review to a window period when there is a possibility of transfer is not only in line with the law of proof, but also avoids the characterization of normal household consumption errors as transfers. Understanding this logic, the direction of forensics will not deviate.

Legal basis for 1.: basis for less division and ex post relief

article 1092 of the Civil Code stipulates that if one of the spouses hides, transfers, sells, destroys, or squanders the joint property of the husband and wife, or forges the joint debt of the husband and wife in an attempt to encroach on the property of the other party, when the divorce divides the joint property of the husband and wife, the party may be divided less or not. If the other party discovers the above-mentioned acts after the divorce, it may file a lawsuit in the people's court, requesting another division of the joint property of the husband and wife.

The supporting basis is Article 1062 of the Civil Code, which makes it clear that the wages, bonuses, remuneration for labor services and the income from production, operation and investment during the marriage are the common property of the husband and wife and belong to the husband and wife. Only by determining that the property is common property can we talk about whether it has been transferred.

The time limit for ex post facto relief is equally important. Article 84 of the (I) of interpretation of the Supreme people's Court on the application of the Marriage and Family Code of the Civil Code stipulates that the limitation of action period for a party to request another division of the joint property of husband and wife in accordance with Article 1092 of the Civil Code is three years, calculated from the date of discovery of the party. Late discovery does not mean that there is no chance, but delay will significantly increase the difficulty of proof.

What does the 2. court look at and how is the evidence organized?

1. Identified four dimensions of observation of transfer

the first dimension is time. Whether outflows occur before or after emotional deterioration, separation, or prosecution, the closer you get to this window, the more likely the abnormality is to be perceived. The second dimension is the amount and frequency. In the short term, large cash withdrawals, multiple small cumulative amounts, and transfers that are obviously inconsistent with past consumption habits will be highlighted.

The third dimension is where and why. Whether the payee is a close relative but has no legitimate economic dealings, whether it is transferred to another person's holding account, whether it is used to purchase insurance or financial management with cash value. The fourth dimension is the reasonableness of the interpretation, where one party can explain the purpose and provide evidence, such as normal household expenses, repayment of existing debts, business turnover, which the court may not recognize as a transfer.

2. How to prove the ground: investigation order and flow interval

take the materials you can obtain first: the bank account, Alipay and WeChat bills under your name, and lengthen the time interval as much as possible when printing, usually covering the year or even longer before the deterioration of feelings, so as to facilitate the identification of abnormalities before and after comparison. If an account under the name of the other party is involved and cannot be accessed by himself, he may apply to the court for an investigation order after filing the case, and the lawyer shall go to the financial institution to access it with the order.

For changes in real estate and vehicles, you can inquire about the transfer records from the real estate registration center and vehicle management agency of the district (county, city) where the house is located; equity changes can be inquired through the national enterprise credit information publicity system. For electronic transfer records that are easy to lose, screenshots should be taken in time to fix and retain the original carrier, and notarized if necessary to avoid being unable to check in the future.

3. Boundary Conditions: What Doesn't Count as Transfer

daily household consumption, reasonable human relations, children's education and medical expenses are generally not recognized as transfers of property. Even if the amount is not small, as long as the use is reasonable and comparable to the family's standard of living, it is usually not held accountable.

In terms of determination standards, the fact of transfer needs to reach a high degree of probability. A single transfer is often not enough to determine. Multiple records are required to confirm each other and form a chain of funds. In addition, if one party disposes of personal property in his own name in accordance with the law during the existence of the marriage relationship, it is entitled to dispose of it and cannot be confused with the transfer of common property.

Procedurally, attention should also be paid to the claim that the other party's transfer of property should be explicitly raised in divorce proceedings and a request for less or no division of property should be made, and it is usually difficult to obtain support after the judgment takes effect and then to claim separately on the basis of the same fact. What can really be sued separately is the newly discovered transfer after divorce and is subject to the three-year statute of limitations.

4. specific to Ningbo for handling: how to cooperate with filing, transfer and mediation before litigation

for specific handling in Ningbo, the case can be filed online through Zhejiang Court Network or Mobile Micro Court, and an application for investigation and evidence collection can be submitted at the same time, indicating the account, institution and time period to be transferred. The investigation order generally needs to be applied for after the case is accepted and issued by the trial court. The efficiency of lawyers holding the order to obtain bank running water and real estate registration information is much higher than running on their own.

In practice in Ningbo area, family cases are generally first appointed pre-litigation mediation. If it is suspected that the other party is transferring property, the mediation phase can require disclosure of property status and exchange of water, which is often more effective than a court session to identify hidden property.

From the general practice reflected in the public judgment of the Ningbo court, if one party has the act of concealing or transferring common property, the court's tendency to divide it less is more clear, but only if the claiming party can provide evidence sufficient to determine the act, and only doubt or speculation is not enough to affect the share. Ningbo family trial also has a family investigator and psychological counseling mechanism, involving cases of fierce contradictions, the court can entrust family investigators to visit and verify, the advocate party to provide objective and verifiable materials is more beneficial.

5. common mistakes

one of the misconceptions is that the court will retrieve all the accounts since the marriage. The focus of the review is on the abnormal outflow after the deterioration of feelings. Normal expenditures long ago are usually not within the scope of the review. It is often difficult to obtain support if the appeal is based on the entire history of the request.

The second misconception is that buying insurance avoids division, and the cash value of insurance and dividend products with cash value may still be treated as common property. The third misconception is that small and frequent transfers cannot be found, and multiple transfers accumulated without reasonable explanation will also be recognized. The fourth mistake is to focus only on bank deposits and ignore financial management, insurance, equity and debt, these are precisely the high incidence of hidden property.

6. operational steps

the first step is to list the common property of husband and wife, classify them according to real estate, deposit, vehicle, financial insurance, equity, creditor's rights and debts, and mark the known clues. The second step is to print the bank flow and network fund bill under my name, and the time interval is extended to one year before the emotional deterioration. The third step is to sort out specific clues for the known accounts, real estate and vehicles of the other party so as to apply for an investigation order after filing. Step 4, at the time of prosecution, it is clearly stated that the other party has a transfer act and requests less or no division, and at the same time applies for property preservation as the case may be; the fifth step is to require the disclosure of property and exchange of evidence at the pre-litigation mediation stage; the sixth step, if it is discovered after divorce, a separate lawsuit shall be filed within three years from the date of discovery to request another division.

Finally, we must remind that the means of evidence itself must be legal. Materials obtained by stealing equipment and illegally obtaining other people's account information may not only not be adopted, but may also cause new legal risks and weaken their own claims.

Practical Experience of 7. Lawyers

if you suspect that the other party has transferred the common property, don't rush to turn over the old scores of ten or eight years. In practice, the window of the court's real concern is often the abnormal outflow of funds after the obvious deterioration of the relationship between husband and wife-large cash withdrawals, frequent transfers to relatives without economic contacts, surprise purchase of financial management or insurance, low-cost disposal of real estate vehicles and the like. The reason for the deterioration of feelings is that it is difficult and unnecessary to restore the daily income and expenditure in marriage one by one. Understanding this logic, forensics has a direction: to focus on the financial changes before and after the deterioration of the relationship.

The organization of evidence should be based on methods. Bank flow, transfer records, large consumption vouchers, and records of ownership changes in assets are the foundation; more importantly, the word "abnormal" is clear-why the money is abnormal, what is the relationship between the payee and the family, and whether the amount and frequency exceed normal transactions. If a time line can be formed, try to organize it into a table according to time. What needs to be reminded is that there are a lot of normal household expenses and support expenses in daily life. Don't rely on "shifting" every sum. Too broad a proposition will weaken the focus.

Once the determination is established, the transfer party may divide less or even no division, which is an important bargaining chip in your hand. Therefore, the action should be quick: when suing, apply for investigation and evidence collection or property preservation, hold down the assets that may be disposed of first, and don't wait for the judgment to find that the account is empty. At the negotiation level, "whether to pursue the transfer" can also be used as a quid pro quo. If the other party is willing to make concessions on the division and return the money, it will be treated as part of the overall settlement. Only when it is time to be hard and when it is time to talk can we keep our share.