Insights

How to divide the demobilization fee of divorced soldiers in Ningbo

Ningbo Author：LuXu WANG

Do you want to share the demobilization fee and self-employment fee that the retired servicemen receive when they are divorced? Conclusion First of all, it does not belong to the servicemen in full, nor does it belong to the joint property of husband and wife in full, but it is converted according to the age of marriage -- by multiplying the duration of the marital relationship by the average year, the amount obtained is the joint property of husband and wife, and the rest belongs to the servicemen. Families in Ningbo with members who have served in the military are subject to the same calculation rules as those nationwide; the key is to clearly establish the three data points: age at enlistment, years of marriage, and the total cost.

1. First, determine the nature: demobilization fees do not belong entirely to whoever's name is on them.

Many people mistakenly think that the demobilization fee and self-employment fee paid in the name of the soldier are the personal property of the soldier and have nothing to do with the spouse. This understanding is not comprehensive. Military personnel's casualty insurance benefits, disability subsidies, medical living allowances, and pensions that have personal specificity are indeed personal property of military personnel; but demobilization fees and self-employment fees are a one-time economic payment for military personnel for many years of service Compensation, the time value corresponding to the duration of the marriage will be converted into the joint property of the husband and wife.

The legal basis is the Interpretation (I) of the Supreme People's Court on the Application of the Marriage and Family Code of the Civil Code of the People's the People's Republic of China of China (Fa Shi [2020] No. 22) Article 71: If the people's court hears divorce cases involving one-time expenses such as demobilization fee and independent employment fee, the amount obtained shall be the joint property of husband and wife by multiplying the average annual value of the duration of the marital relationship between husband and wife; the annual average value mentioned in the preceding paragraph refers to the amount obtained by dividing the total amount of the above-mentioned expenses paid to the servicemen according to the specific number of years, which is the difference between the average life expectancy of 70 years and the actual age of the servicemen at the time of enlistment. This article is a continuation of Article 14 of the original "(II) of Interpretation of the Marriage Law" and applies uniformly throughout the country, with no special exception in Ningbo.

This rule can be broken down into three requirements: the first is the main requirement, the expenses are paid to the soldier's name, and the soldier has established a marriage relationship with his spouse; the second is the time requirement, only the time share corresponding to the duration of the marriage relationship enters the common property, and the share corresponding to the service time before marriage and after divorce still belongs to the soldier; the third is the calculation requirement, the total cost, age of enlistment and age of marriage are used to calculate the formula, which is indispensable.

2. conversion formula and calculation steps

conversion formula is: annual average = total expenses ÷(70-age of enlistment); joint property of husband and wife = annual average × age of marriage; the balance of total expenses after deducting common part belongs to individual soldiers. There are four points to be made clear when calculating:

  1. Enlistment age: The actual age recorded in the enlistment approval documents (such as the enlistment approval letter or discharge certificate) shall prevail; it is not calculated as “years of service” based on full years of age.
  2. Marriage duration: Calculated from the date of marriage registration to the date the marital relationship is terminated (in cases of divorce by litigation, generally calculated up to the date of the divorce judgment; in cases of divorce by agreement, it is the date of divorce registration). For periods spanning full years, the calculation is based on the actual number of years.
  3. Total expenses: The one-time expense vouchers (issuing verification form, bank entry records) such as the actual demobilization fee and self-employment fee issued at the time of retirement shall prevail, excluding the personal exclusive funds such as casualty insurance, disability allowance and medical living allowance that have been excluded.
  4. Division method: after the common part is determined, this part will be treated according to the rules of joint property of husband and wife-usually one party of the military gets all the money and pays half of the discount compensation of the common part to the spouse; other proportions can also be negotiated.

Deduction Example (Example, Fiction): A soldier enlisted in the army at the age of 18 and retired in 2024 after 16 years of service. The total one-time expenses such as demobilization fee and independent employment fee when he retired are 520000 yuan. He registered for marriage in 2019 and divorced in 2026, with a marriage age of about 7 years. Annual average = 520000 ÷(70-18)= 520000 ÷ 52=10000 yuan/year; Common part = 10000 × 7=70000 yuan; The compensation that spouses can claim is about half of the common part, that is, 35000 yuan, and the remaining 450000 yuan belongs to individual soldiers. If the age of marriage is extended to 15 years and the common part increases to 150000 yuan, it can be seen that the length of marriage has a significant impact on the outcome.

3. segmentation results in different situations

The results of the same rule vary greatly under different time structures, and the common situations can be divided into five categories:

  1. Retirement before marriage and divorce after marriage: if the demobilization fee has been paid before the marriage registration, it belongs to the personal property of soldiers before marriage and does not participate in the division; but if the money is deposited in the bank after marriage to generate interest or used for joint purchase of property, the income and the conversion part will be dealt with according to other rules.
  2. Retired within marriage and divorced within marriage: the expenses are paid during the existence of marriage, and the corresponding part of the marriage age is recognized as common property according to the formula, which is a typical situation applicable to Article 71.
  3. marital retirement, divorce occurs many years after retirement: The marriage age is still calculated from the date of marriage registration to the date of divorce, which has nothing to do with the time point of distribution, and only the corresponding share during the duration of marriage is calculated.
  4. Soldiers and non-soldiers are both soldiers: if both parties have one-off expenses, they will be calculated according to their respective age and total expenses, and then combined.
  5. Divorce by Agreement: Both parties can directly specify the conversion formula and amount in the divorce agreement. As long as they do not violate the mandatory provisions of the law and express their true intentions, the agreement takes precedence; if there is no agreement or the agreement is unclear, the legal formula will still be used for conversion during litigation.

What needs to be pointed out is that military casualty insurance, disability allowance and medical living allowance belong to military personnel's personal property according to Article 30 of the (I) of Interpretation; casualty pension and other personal dependent funds belong to military personnel according to the definition of "compensation or compensation for personal injury by one party" in Article 1063 of the Civil Code. These payments complement each other with the rule that the common part of the demobilization fee is converted according to the age of marriage, and the calculation should be excluded from the total cost first, so as to avoid the conversion of personal payments together.

4. List of Material Evidence and Processing Procedures

When the litigation claims are converted according to the age of marriage, the burden of proof lies on the party who claims division, and it is suggested to fix the following materials:

  1. Enlistment approval document or retirement certificate, which is used to prove the age of enlistment;
  2. the decommissioning certificate and the expense issuing certificate (issuing verification form, bank flow) are used to prove the total amount of expense;
  3. Marriage certificate and marriage registration file are used to prove the starting point of marriage age;
  4. Divorce registration records or court divorce judgments, mediation documents, used to determine the marriage age cut-off point;
  5. military casualty insurance, disability benefits and other payment details, used to exclude personal payments from the total;
  6. A written agreement between the parties (if any) regarding the disposition of the property.

On the process, if the agreement is reached through consultation, the divorce can be registered at the marriage registration office and the conversion formula and amount should be written in the divorce agreement, and notarized if necessary; if the negotiation fails, the divorce lawsuit should be brought to the grass-roots people's court with jurisdiction, which generally follows the rules of the defendant's domicile. If the defendant is a soldier, attention should be paid to the special procedural requirements for the divorce of the active servicemen (the non-servicemen's divorce, generally, pre-coordination procedures such as a certificate of consent issued by the political organ of the military unit are required).

Discrimination of 5. Common Misunderstandings

Misunderstanding 1: The demobilization fee belongs to the individual soldiers. positive solution: only the part corresponding to the duration of the marriage multiplied by the average annual value is the common property, but the longer the marriage age is, the earlier the army is, the higher the proportion of the common part is, which is not "all belong to the individual".

Misunderstanding 2: As long as the cost is in the name of the soldier, it has nothing to do with the spouse. Correct solution: It depends on whether the time period corresponding to the expense falls within the marriage, which has nothing to do with whose name the money is registered in.

Misunderstanding 3: The annual average is the total cost divided by the age of marriage. Positive solution: the annual average value = the total cost ÷(70-the age of enlistment), which is the "corresponding cost per year", multiplied by the age of marriage is the common part, and the two calculations cannot be confused.

Misunderstanding 4: Concealing decommissioning materials can keep more shares. Correct solution: The court can obtain the distribution records retained by the retired servicemen's affairs department and bank according to the application. Concealment and forgery will affect the credit identification and division ratio.

Special Procedures and Duration of 6. Military Marriage Divorce

The divorce involving the division of military demobilization fee must first go through the special procedure of military marriage. Article 1081 of the Civil Code stipulates that when the spouse of an active serviceman requests a divorce, the consent of the serviceman shall be obtained, except if one of the servicemen has made a major mistake-unless one of the servicemen has committed major mistakes such as bigamy, cohabitation with others, domestic violence, abuse and abandonment, and the spouse of an active serviceman unilaterally sues for divorce with the consent of the serviceman; if one of the serviceman files for divorce, in accordance with the relevant provisions of the army, it is generally necessary to have the consent of the political organ at or above the regiment level of the army to which it belongs and to issue a relevant certificate. Procedural, divorce proceedings are generally under the jurisdiction of the court of the defendant's domicile or habitual residence. If the defendant is a soldier, it shall be handled in accordance with the relevant provisions of military-related cases, and if necessary, it may apply to the court for communication and coordination with the army.

The time limit needs to be reminded: the compensation for the demobilization fee discount should be advocated together in the divorce proceedings to avoid "fighting again after divorce"; If it is discovered after divorce that the other party conceals the demobilization fee and omits the common property, it can be sued separately for another division within three years from the date of knowing or should know Article 1092 of the Civil Code. In a divorce by mutual agreement, if a party has explicitly waived any claim to property or has already made arrangements regarding the resettlement allowance, subsequent claims are generally unlikely to be upheld. Therefore, before signing the divorce agreement, it is essential to carefully verify the calculation formula and the amounts involved.

Treatment of 7. lump-sum retirement payment, resettlement subsidy and other related funds

After the implementation of the Regulations on the Placement of Retired Soldiers in 2011, retired soldiers who choose to work independently will receive a lump-sum retirement payment when they retire. Its nature belongs to the government's placement subsidy for retired soldiers, which is the same as the demobilization fee and the self-employment fee ". In practice, there are two calibres for the division of divorce: one thinks that it should be converted according to the age of marriage with reference to Article 71 of the (I) of Interpretation, and the other thinks that the one-time retirement fund has more placement and personal attributes and tends to belong to individual soldiers. Due to the different judgments in different places, it is suggested that Ningbo parties focus on fixing the evidence from three angles: first, whether the distribution time is within marriage; Second, whether the money has been mixed with family funds; Third, the local court's previous handling of similar funds. If it is issued in marriage and has been transferred to the common account of the family, there is more room for division according to the common property.

In contrast, the casualty insurance, disability allowance and medical and living allowance of soldiers belong to personal property according to Article 30 of the (I) of Interpretation; the personal exclusive funds such as pension and honor fund are generally not involved in the division. When calculating the common part of the demobilization fee, these individual payments should be removed from the total cost, and then the conversion formula should be applied to avoid "eyebrows and beards".

Terms Design and Operation Checklist for 8. Agreements and Litigation

No matter in negotiation or litigation, only by putting the rules into words can we avoid secondary disputes. The terms related to demobilization fee in the divorce agreement can be formulated with reference to the following elements: "Both parties confirm that the one-time expenses such as demobilization fee and independent employment fee under the name of ××× (the military party) total ×× yuan, of which the age at the time of enlistment and the duration of marriage are ×× years. According to Article 71 of the Interpretation (I) of Marriage and Family of Civil Code, the part belonging to the joint property of husband and wife is ×× yuan, the military party shall pay the discount amount of x x yuan to the other party before x years x months x days (it can be divided into x periods, and liquidated damages shall be paid by x 10,000 per day if it is overdue); Personal exclusive funds such as casualty insurance, disability allowance and medical living allowance shall be owned by the military party. "The terms clearly state the total cost, age of enlistment, age of marriage, formula and payment arrangement, which can greatly reduce the implementation dispute.

The operation list suggests to follow five steps: the first step is to obtain the enlistment approval documents, the retirement certificate and the fee issuance certificate; the second step is to calculate the enlistment age, marriage age and the total amount of expenses, excluding personal exclusive funds; the third step is to apply the formula to calculate the common part and estimate the discount; the fourth step, if it is agreed upon by consensus, the terms shall be stated in the divorce agreement and retained (if the amount is larger, it can be notarized); In the fifth step, if the negotiation fails, it shall be claimed together as a matter of property division in the divorce proceedings, and the litigation may apply to the court to obtain the distribution record from the retired servicemen affairs department. The results can only be expected if the materials are complete and the caliber is consistent.

9. Frequently Asked Questions

Does the military demobilization fee all go to the military when they are divorced?

No. According to Article 71 of the (I) of Interpretation of Marriage and Family of the Civil Code, the joint property of husband and wife is obtained by multiplying the age of marriage by the annual average, and the corresponding part needs to be divided in the event of divorce, while the rest belongs to the individual military personnel.

How to calculate the annual average?

Divide the total lump sum by (70-actual age at the time of enlistment) to obtain the amount of the annual fee, which is the annual average; then multiply it by the length of the marriage, which is the part of the common property.

Is the self-employment fee divided according to the same rule?

Yes. The same conversion rules apply to the demobilization fee and the one-time expenses such as the independent employment fee; the casualty insurance premium, disability subsidy, medical living allowance and other personal exclusive funds are not included in this list and belong to the individual soldiers.

Can the demobilization fee paid in marriage be divided if the lawsuit is filed many years after the divorce?

Yes. The right of claim for division is aimed at the common property formed during the marriage, and if a property dispute after divorce is filed after divorce, it can still be claimed within the statute of limitations, and the age of marriage is still calculated to the date of divorce.

Should the military casualty compensation be split in half?

No. Pensions, casualty insurance benefits, etc. are personal dependent and belong to the personal property of military personnel and should not be included in the conversion base and should be excluded from the calculation.

10. Practical Legal Insights

The distribution of demobilization fee and self-employment fee is most likely to be biased by the two extreme understandings of "my name is mine" and "this is the money of husband and wife. The basic idea in practice is that the part of the value corresponding to the duration of the marriage belongs to the common property, and the rest belongs to the individual soldier. So the first thing to really do is to fix the three data clearly-the time of enlistment, the time of marriage, and the total cost. Once these three items are cleared, the amount that can be divided can be roughly calculated, and the negotiation will have a benchmark, so as not to be confused by the other party's sentence "I earned this as a soldier.

It is suggested to transfer the demobilization fee, the issuance certificate of self-employment fee, the military certificate, the materials of enlistment and transfer, and the marriage certificate in advance, so as to make a one-to-one correspondence between the time node and the amount. If the money has been recorded and used for house purchase and investment, we should follow the capital to see what property it has turned into, so as to avoid "there is no way to claim if the money is spent". When writing in the agreement, don't just write "half of the demobilization fee", but write clearly the conversion process, specific amount, payment method and time limit, and try to pay off as much as possible at one time, so as to save repeated wrangling in the future.

military-related divorce has its particularity in terms of procedure and time limit, involving the situation that one party of active servicemen does not agree to divorce, and the processing rhythm is different from ordinary divorce. Knowing in advance is helpful to arrange strategies, and don't copy the time expectation of ordinary cases. Military casualty insurance, disability allowance, pension and other personal exclusive funds belong to personal property, do not mix into the scope of division, otherwise it is easy to lose credibility in the negotiation. During negotiations, clearly delineating what should be divided and explicitly clarifying what should not makes it easier for the other party to accept a concrete proposal.

The key to the division of military demobilization fee and independent employment fee lies in the "formula for conversion of marriage age": four types of materials, including fixed enlistment approval documents, retirement certificates, fee issuance certificates and marriage registration information, are calculated according to the annual average value = the total cost ÷(70-the age of enlistment), and the common part = the annual average value × the age of marriage, which can avoid the unfavorable determination of conversion amount caused by incomplete proof. To the extent possible, specify the formulas and amounts in the divorce agreement to minimize disputes over calculations in litigation.