Insights

Ningbo divorce check each other's property? Investigation order

Ningbo Author：LuXu WANG

"I know he has money, but I can't find anything." This is the most consuming sentence in the division of divorce property. The crux of the problem usually lies not in how deep the other party hides, but in the wrong order of obtaining evidence-first rush to apply for an investigation order, but can't come up with enough preliminary clues to explain what to look for, which one to look for, and which period of time to look for, the application is naturally rejected. An effective property survey is a sequential project, not a single point of breakthrough.

Three legal channels for 1. investigation and evidence collection

in a divorce case, there are three main legal ways to obtain the other party's property information: the parties collect it by themselves, the lawyer obtains it from the relevant unit with an investigation order, and applies to the people's court for ex officio investigation and evidence collection. The threshold of the three channels is different from the applicable object, and mixing will greatly reduce the efficiency.

Why is "clues first, investigation later" an iron law

regardless of the investigation order or the court's investigation and collection of evidence, the application must state the name of the unit under investigation, the matters to be investigated and the facts to be proved. General requests such as "check all bank accounts in his name" are usually not granted because of their lack of directivity. In turn, as long as a specific bank, a specific account number or a specific transaction period can be specified, the permission rate will be significantly higher. Therefore, the focus of the first phase of work is always to translate vague doubts into specific coordinates.

2. first step: self-examination can get public and semi-public information

this step requires almost no cost, but determines the quality of all subsequent applications.

1. Five categories of self-available information

first, real estate registration information: one spouse can go to the real estate registration agency to inquire about the registration status of the spouse with the marriage certificate and ID card, and the acceptance caliber varies slightly from place to place; in Ningbo, you can apply to the real estate registration agency window where the house is located. The specific material requirements are subject to the caliber of each district window; second, industrial and commercial registration information: inquire about the main body and capital contribution of the other party as shareholders, directors, supervisors and senior executives through the national enterprise credit information publicity system; Third, the judgment documents and execution information: searching whether the other party has litigation and execution records can often reverse its capital transactions and related subjects; Fourth, family common information: tax return records, insurance policies, medical examination reports, vehicle insurance policies and property payment forms can provide clues to accounts and assets. Fifth, historical common account: the account flow used by the husband and wife, I have the right to inquire, in which the counterparty information value is very high.

2. Spelling the fragments into a timeline

it is recommended to organize in tabular form: time, matter, amount, counterparty, source of evidence. Large outflows, sudden account closings, and intensive transfers near the point of separation are all anchor points for subsequent application investigations. The clearer the timeline, the easier it is for the judge to form a judgment on the "investigation is indeed necessary.

Step 2 of the 3.: Converting the clues into specific items that can be applied.

The success or failure of the investigation application depends on whether three elements are complete: the unit under investigation is clear, the matters to be investigated are specific, and the facts to be proved are clear.

1. Standard writing as an example of loan repayment details

A standardized application for investigation and evidence collection will state the basic information and cause of action of the applicant and the respondent, and state in the request: according to law, obtain or order the respondent to provide the bank details of repaying the loan for a certain real estate from a certain month to a certain month during the marriage relationship, and attach the loan account information. The facts and reasons section indicates that the details are used to calculate the principal of the joint repayment and the corresponding value-added compensation, which are the key facts to be proved in this case. An application with a standardized format and a clear direction is far more likely to be granted than an oral request.

2. Corresponding objects of different property types.

Bank deposits and financial management correspond to the opening bank; Securities accounts correspond to securities companies or registration and settlement institutions; Equity and capital contribution correspond to market supervision and management departments; Real estate corresponds to real estate registration center; Vehicles correspond to vehicle management departments; The cash value of the policy corresponds to the insurance company; Provident fund corresponds to the housing provident fund management center; The old-age insurance account corresponds to the social security agency. Categorizing each lead to a corresponding agency is a necessary action before writing an application.

Step 3 of the 4.: Key Points of Application for Investigation Order and Court Investigation and Evidence Collection

the investigation order is issued by the judge in charge and obtained from the investigated unit by the attorney in charge of the order, which is usually more efficient than the direct letter sent by the court.

1. The choice of application time

early application, insufficient clues are easy to be rejected, and the grass alarm. The more secure rhythm is: submit the property preservation application as soon as possible after filing the case, and submit the first batch of clear investigation applications simultaneously; After the first hearing, the second batch of supplementary applications will be submitted according to the new clues exposed by the other party's defense.

2. What if the investigated unit does not cooperate

if the unit refuses on the grounds of internal regulations, it may request the court to issue a notice of assistance in the investigation or contact the judge directly; if it still does not cooperate, it may apply in accordance with the law to take corresponding measures against the unit that refuses to assist in the investigation and evidence collection and its directly responsible personnel. In practice, first confirm the list of required materials with the legal or archives department of the investigated unit, which can avoid multiple round trips.

Step 4 of the 5.: The use of property preservation and the rules of obstruction of proof.

Finding property without preserving it is tantamount to giving time to the other party. Preservation and investigation should be carried out simultaneously, not sequentially.

1. The two values of preservation

the first is to lock up the property to prevent it from being disposed of during the litigation; the second is the value of the information-the feedback after the preservation ruling is served on the financial institution, which in itself confirms the existence of the account and the balance range, which objectively plays an auxiliary role in the identification.

2. Consequences of the other party's refusal to provide evidence

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 embezzle the property of the other party, when the divorce divides the joint property of the husband and wife, the other party may divide or divide the joint property of the husband and wife; after the divorce, if the other party discovers the above-mentioned behavior, it may bring a lawsuit to the people to the joint property. In addition, if the party holding the evidence refuses to submit it without justifiable reasons, the court may find that the other party's claim on the content of the evidence is established. Together, these two rules constitute a substantive constraint on the act of concealing property.

6. case proof

in practice, if a party transfers a large amount of funds to the account of a parent or a third party before and after separation, and cannot explain a reasonable use, the court usually finds that it constitutes a transfer of common property and gives the party a small share at the time of division. If the transfer is discovered only after the divorce, the other party may still sue separately and request another division, without being hindered by the res judicata of the original judgment. According to the divorce dispute between Chang mou and Meng mou heard by Ningbo jiangbei court, one party claimed that the other party cheated and transferred the property, but was not accepted by the court due to insufficient evidence-the party claiming to transfer the property must take the investigation and collection of fixed evidence as the premise; According to the property dispute between Chen mou and Xiang mou after the divorce of Ningbo ninghai court (2011) No. 1335 yongning minchuzi, after the unzi, after the unming house was auctioned, the court ruled that the plaintiff received 235000 yuan and the defendant received 285000 yuan, which proved that after divorce, the plaintiff could still sue for division of the missing property.

In practice, if a party holding key evidence such as loan repayment details and company books is ordered by the court to submit it but refuses to submit it without good reason, the court usually presumes that the other party's claim of the facts involved in the evidence is established. Therefore, the submission of a clear application for investigation and evidence collection, even if the other party does not cooperate in the end, can also form a favorable situation in the allocation of the burden of proof. According to Ningbo Intermediate People's Court's "case statement" "Divorced," How to Calculate "?" (August 5, 2014) Public caliber, personal insurance claims personal dependency is personal property, the premium insured by the family during the marriage is common property-the scope of property investigation should cover the cash value of the policy and other asset forms, and the aforementioned "cash value of the policy corresponds to the insurance company" transfer path to confirm each other.

7. Risk Alert

  • cross-border evidence collection: unauthorized installation and positioning, theft of other people's account passwords, illegal purchase of credit or room opening records, evidence may be excluded, and may also lead to separate liability.
  • The application matters are general: most general applications that do not specify the investigated unit, account number and time period will be rejected and delayed.
  • Only check is not guaranteed: check the account but did not apply for property preservation in time, and the balance has been emptied by the time the judgment comes into effect.
  • Missing the time limit for proof: the application for investigation should generally be submitted before the expiration of the time limit for proof, and it is easy to be considered overdue before the hearing.
  • Ignore related subjects: only focus on individual accounts, ignore the accounts of their holding companies, individual industrial and commercial households and close relatives, often missing the largest part of the assets.

8. FAQ

can I check the bank deposit in my spouse's name when I get divorced?

Yes, but you need to go through the procedure. The parties themselves are generally unable to directly inquire about the spouse's account, and may apply to the court for an investigation order to be obtained by the attorney in the litigation, or apply to the court for an ex officio investigation. The bank, account number or identifiable information and the time period to be inquired must be stated at the time of application, and the approval rate of the application with clear direction is significantly higher.

What is the difference between an investigation order and a court investigation?

The investigation order is issued by the judge in charge, and the lawyer acting for the order goes to the investigated unit to obtain it on his own, with strong mobility and short cycle; the court investigation and evidence collection is directly sent by the court or sent to obtain it, which is applicable to the evidence kept by the relevant departments of the state and that the parties and agents cannot collect it on their own due to objective reasons. Both can be used separately by type of evidence.

Can you ask for more points if you find the other party transferring property?

You can. According to Article 1092 of the Civil Code, if one party conceals, transfers, sells, destroys, squanders the joint property of the husband and wife or forges the joint debt, the division may be divided less or not. If it is discovered only after the divorce, the other party may sue separately and request another division of the common property.

How to check and divide the shares of the company under the name of the other party?

Equity information can be preliminarily inquired through the national enterprise credit information publicity system, details such as capital contribution and articles of association can be applied for access to the registration files of the market supervision and management department, and the actual operation and financial data of the company need to apply for access to tax declaration materials, financial statements or judicial audit. The division is usually compensated at a discount to the value of the property interest corresponding to the equity, and the consent and pre-emption rights of other shareholders are also considered for the change of shareholder status.

Practical Experience of 9. Lawyers

"I know he has money, but I can't find anything" is the most humbling sentence in the division of divorce property. The problem often does not lie in how deep the other party hides, but in the reverse order of obtaining evidence: as soon as he comes up, he rushes to apply for an investigation order, but he cannot tell what to check, which one to check and which period of time to check, and the application is naturally rejected. An effective property survey is a sequential set of projects. There are three main legal paths-the parties themselves collect, the lawyers obtain from the relevant units with investigation orders, and apply to the court for ex officio investigation and evidence collection. The thresholds of the three roads are different from the applicable objects. First, put the order right before you can run for nothing.

The first step in the sequence is actually to do it yourself. The information that can be found publicly or semi-publicly is often more than the parties think: the equity and employment of industrial and commercial registration, the registration clues of real estate, vehicle information, social security payment units, traces of external operation and cooperation, as well as the contracts, bills and express orders left at home. Only by sorting out these clues can the vague "he must have property" be converged into specific application matters. When applying to the court or applying for an investigation order, the name of the unit under investigation, the matters to be investigated and the facts to be proved must be clearly stated. The general request of "checking all accounts under his name" will not be approved due to lack of direction. The more specific the direction, the higher the likelihood of approval and the efficiency of the investigation.

Investigation and security should be used in conjunction. To find out a property, consider applying for preservation of the property as soon as possible to prevent the other party from disposing of it during the investigation; at the same time, make good use of the rules of obstruction of proof, and if the other party refuses to provide or conceal relevant evidence without justifiable reasons, it may bear adverse consequences, which in itself is a kind of pressure. Here is another reminder: don't rush to tell all the clues you have in the negotiation stage. As soon as the card is lit, the other party will have room to arrange in advance. If the rhythm of investigation, security and negotiation is well coordinated, the chips available in your hand will obviously increase, and many deadlocks will be loosened in the process.