How does the court of transferring property before divorce in Ningbo

The legal consequences of one party transferring the joint property of the husband and wife before divorce are clear and unfavorable. 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 falsifies the joint debt of the husband and wife in an attempt to encroach on the property of the other spouse, when the divorce divides the joint property of the husband and wife, the party may be divided less or not. This is the most direct legal basis for "transferring property will be sentenced to less points", and it is also the basis of discretion in practice to tilt to the no-fault party.

Nor is it without relief to find out after the fact. After the divorce, if the other party discovers the above-mentioned acts, it may file a lawsuit in the people's court, requesting another division of the joint property of the husband and wife. The limitation period of action is three years, counting from the date of the party's discovery. Whether it is discovered in the divorce proceedings or only after the divorce, the law has given the corresponding processing channels. What really determines the result is whether it can produce enough evidence for the court to determine.

Legal basis for 1.: Article 1092 and the system of preservation, investigation and evidence collection

in addition to Article 1092 of the Civil Code, Article 1087 stipulates the general principle of dividing the common property of husband and wife in the event of divorce: it shall be handled by agreement between the two parties; If the agreement fails, the people's court shall, according to the specific circumstances of the property, make a judgment in accordance with the principle of taking care of the rights and interests of the children, the woman and the party without fault. In combination, the transfer of property is a typical fault situation, and the court will consider it as a factor to the disadvantage of the wrong party when determining the proportion of the division.

In terms of procedure, the Civil Procedure Law provides for a system of preservation and investigation and evidence collection. The parties may apply for property preservation before or during the lawsuit, and request the court to seal up, freeze, or seize the relevant property; for evidence that cannot be collected by themselves due to objective reasons, they may apply to the people's court for investigation and collection, or in the case of a lawyer holding an investigation order, Financial institutions, real estate registration agencies and other units are transferred. These two systems are the main tools for turning doubt into evidence.

The core point of the 2.: how to judge and whether it can be recovered

1. Discretion scale of little and no division

the legal term is "less or no division" rather than "should be divided", which means that the court has room for discretion. Discretion is usually based on the proportion of the amount transferred to the common property, the degree of correlation between the time of the transfer and the divorce process, whether there was profligacy or malice, whether there was a return afterwards or a statement of reasonable use. The common result is an appropriate tilt to the no-fault party, and it is relatively rare to be completely neutral, except for major malice.

2. Can the property that has been transferred out be recovered

not all of the property that has been transferred out cannot be recovered. If the recipient knowingly or without compensation, or if the transaction price is manifestly unreasonable, the other party may claim that the disposition is invalid and request its return. On the contrary, if it belongs to normal living consumption, reasonable operating expenses or has a legitimate creditor's rights and debts basis, it does not constitute a transfer and will not have the consequences of less points.

3. Boundary Conditions: Time Nodes and Subjective States

identified transfer behavior needs to distinguish between time nodes and subjective states. Large abnormal transfers that occur after the couple's relationship has indeed broken down, entered into separation or filed for divorce are most likely to be identified. Expenditures that occur during the normal existence of the marital relationship and are within a reasonable range of family life are much more difficult to identify. In addition, the transfer of personal property or common property is also crucial, the disposition of personal property does not constitute an infringement of common property.

There is also a boundary situation in which the joint debt of the husband and wife is forged. One party colluded with others to issue IOUs in an attempt to divide debts and dilute common property at the time of divorce, which also fell within the scope of the adjustment of Article 1092. For such debts, the court will focus on examining the timing and reasonableness of the formation of the voucher for the delivery of the payment and the agreement on the loan.

Practical Experience of 4. Lawyers

the legal consequences of one party quietly transferring, selling or squandering the common property of the husband and wife before divorce are clear and unfavorable: when the common property is divided, the party may divide it less or not. In other words, the transfer is not to take advantage of the run, once verified, the cost may be higher than the honest division. Even if the divorce is not discovered at the time of divorce, if the other party discovers and sues after the divorce, he can still request another division, and the relevant request has a corresponding limitation. First of all, make this consequence clear. Those who want to protect their rights or do things should weigh it clearly.

Can not recover, the key is the evidence. Keep an eye on abnormal changes in funds and property: large cash withdrawals in the short term, frequent transfers to relatives or third parties, low-cost transfers of real estate vehicles, and hasty dispositions of company equity are all key points. Combing the bank flow, account details and timeline, and matching the time point of the transaction with the marriage change node can help determine whether there is an intention to transfer. If necessary, you can apply for investigation and evidence collection or property preservation in litigation, and lock the evidence and property at the same time, which is often much more effective than subsequent recovery.

The party defending the rights should take the initiative: apply for property preservation at the same time as the lawsuit, so as to prevent the other party from further disposing of the property during the litigation; for accounts and assets that are not in hand, they can apply to the court for investigation. At the negotiation level, instead of accusing the other party of bad intentions, it is better to put the abnormal flow out and directly change the division plan so that the other party can understand that the benefits of the transfer have been offset by the risk. At the same time, you should also remind yourself not to transfer property in the same way. Once it is identified as malicious punishment, not only may the claim not be supported, but it will also be a reason for the other party to reduce your points.