Ningbo divorce is not all debt to two people? Lawyers say.

"When you get married, the debt is for two people" is a dangerous illusion. The Civil Code categorizes marital debts into two distinct types: joint debts and individual debts. If the boundaries are not clearly defined, one may end up shouldering debts incurred by a former spouse that could take a lifetime to repay. To conclude: Debts incurred by one spouse in their own name during marriage constitute joint marital debt only if they fall under the statutory circumstances; joint debts shall be repaid jointly by both spouses, while individual debts shall be repaid solely by the spouse who incurred them. The first thing to do during a divorce is to clearly determine which spouse is responsible for this debt.

The two accounts and legal basis for 1. the debts of husband and wife

legally, husband and wife debt is divided into joint debt and individual debt. Article 1064 of the Civil Code is the core basis, the original text of which reads: "The debts of the husband and wife, such as the joint signature of the husband and wife or the subsequent ratification of one of the husband and wife, and the debts incurred by one of the husband and wife for the daily needs of the family in their own name during the existence of the marriage relationship, belong to the joint debts of the husband and wife. 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. The three-tiered structure of the provision corresponds to three pathways for determining joint debt: joint signature or subsequent ratification, debts incurred for the needs of daily family life, and debts exceeding such needs where the creditor successfully bears the burden of proof.

The rules for the repayment of joint debts upon divorce are set forth in Article 1,089 of the Civil Code: Upon divorce, joint debts of the spouses shall be repaid jointly; if the joint property is insufficient to cover the debts or if the property is owned separately by each spouse, the repayment shall be determined by agreement between the parties; if no agreement can be reached, the people’s court shall make a judgment. It should also be reminded that the distribution of debts in divorce agreements or court decisions is only valid within the husband and wife-according to Article 35 of the (I) of Interpretation of Marriage and Family, creditors still have the right to claim rights from both men and women over the joint debts of the husband and wife. After one party assumes the responsibility for settlement, it may recover compensation from the other party according to the divorce agreement or the effective judgment.

2. Deconstruction of the three pathways for joint debt

The first pathway is mutual expression of intent: both spouses sign jointly, or one spouse subsequently provides explicit ratification through a verifiable written statement, text message, WeChat message, or other such means. Your signature on the promissory note, your reply stating “We will repay this,” and your subsequent participation in repayment negotiations may all constitute ratification or acquiescence. Note the two forms of “joint signature”: either both borrowers sign, or one party borrows in their own name while the other signs to confirm. Be sure to think about the consequences before signing.

The second path is the daily needs of the family: borrowing for daily food and clothing, children's education, general medical care, household water and electricity property, etc., which is the joint debt of husband and wife. This is an embodiment of “agency for domestic affairs” and does not require the signatures of both parties. To judge whether it is "daily", there are two practical aspects: one is whether it is significantly higher than the family's annual income and consumption level. If a single loan significantly exceeds the family's annual income 1/3, it is usually required to explain the purpose; The second is whether the purpose belongs to daily expenses such as clothing, food, housing, transportation, medical education, etc. A single sum of tens of thousands of yuan of household appliances and tuition fees are generally within the daily range, while the investment funds and operating turnover funds of several hundred thousand yuan are obviously exceeded.

The third path is the creditor's proof: large debts beyond the scope of daily life, if the creditor can prove that the money is used for the couple's common life, joint production and operation, or based on the common intention, it still constitutes a common debt. For example, the funds may actually be deposited into the family account, used to purchase jointly owned property, repay the joint mortgage loan, or finance inventory for a small business jointly operated by the couple. The burden of proof in this path is on the creditor and is an important line of defense for the "indebted" party.

3. party's nominal excess of daily debt: not of course co-debt

A substantial debt incurred by one spouse in their own name is generally deemed to be the personal debt of the borrowing spouse if it was not used for family purposes, the other spouse did not ratify it, and the creditor cannot prove that it was used for common living expenses or joint business operations. This is the key rule to protect the "indebted" party, but also changed the early judicial practice of "marital debt is presumed to be a common debt" of the old caliber-under the current law, the commonality of large debts by creditors to prove, rather than by the spouse to prove innocence.

should do three things immediately after being sued: the first one is to check whether the signature and handprint of the debit note are personal or not, and if in doubt, apply for handwriting identification in court, and the identification period is usually 20 to 30 working days; the second one is to apply for the court to get the transfer voucher between the lender and the borrower, confirm whether the money is actually delivered and whether it is returned on the spot (e. g., transferred back to the lender or its associated account within a short period of time after the loan); and third, comb the income and expenditure of the account in your own name over the same period to prove that the family has not benefited from the loan. All three things must be presented within the time limit for proof, and evidence submitted late may not be cross-checked by the organization.

4. fiction and illegitimate debt not shared

Article 34 of the (I) for the Interpretation of Marriage and Family stipulates that if one spouse colludes with a third person to fabricate debts, and the third person claims that the debt is the joint debt of the husband and wife, the people's court will not support it. Illegal debts arising from gambling, drug use, and other unlawful activities, as well as the portion of usurious loans exceeding the statutory limit, are not protected by law and are therefore not subject to joint repayment. When the other party comes up with an unknown source of the loan claim for co-debt, first question the authenticity and legality: whether the formation time of the loan can be identified, whether the money is actually delivered, and whether the lender and the borrower have any interest. In a divorce proceeding, a party alleging that the other party has fabricated debts may apply for a forensic examination to determine the date of execution of the promissory note and request the court to obtain records of financial transactions between the parties.

5. case confirmation and judgment

According to similar adjudication rules, if a party takes on a large amount of debt in his own name and obviously exceeds the daily needs of the family, and the creditor claims to repay it together, the proof shall be used for common life, common production and operation or based on common intention; if the proof cannot be provided, it shall be deemed as personal debt, and the spouse shall not bear the liability for repayment (example, the failure of creditor's proof in practice is the norm). On the other hand, if the spouses jointly sign the IOU or explicitly ratify it by text message or chat record afterwards, the debt is recognized as a joint debt and the two parties repay it together with the joint property of the husband and wife; the court does not support the sharing of illegal debts such as gambling, drug abuse and fictitious debts by the spouses.

6. Litigation Parties and Allocation of Burden of Proof

If the creditor claims the joint debt of the husband and wife, the debtor and his spouse can be listed as the joint defendant to sue together; during the existence of the marriage, even if the two parties have divorced, the creditor can still claim the joint debt to both parties. The allocation of the burden of proof is the watershed of the outcome of the case: debts within the scope of the family's daily needs are presumed to have common attributes, and the spouse's defense needs to explain that the money has not been used for the family; Large debts beyond the needs of the family's daily life shall be proved by the creditor to be used for the couple's common life, joint production and operation or expression of common will. The spouse focuses on providing evidence of "no joint signature, no ratification, no money for the family". Both parties should pay attention to the boundary of the court statement-the debtor should not respond vaguely with expressions such as "he said he would repay" and "I acquiesced", which may be interpreted as ratification or knowledge, and written defense and evidence are more powerful than oral defense.

7. the validity boundary of the debt clause of the divorce agreement

In the divorce agreement, the agreement that "each shall bear their own debts" and "a certain debt shall be repaid by one party" only takes effect within the husband and wife: the creditor is not bound by the agreement, and can still claim the joint debt from both parties (Article 35 of the (I) for the Interpretation of Marriage and Family); one party can recover the debt from the other party according to the divorce agreement after paying off the debt according to the contract or effective judgment, the basis of the claim for recovery is the agreement. Practical tips: First, the divorce agreement should try to list the common debts one by one (creditors, amount, purpose and payer), so as to avoid the vague expression of "other debts shall be repaid separately" in the recovery. Second, if a common debt has been formed externally, it cannot be "dumped" by the divorce agreement, or one party can actually pay off and cancel the debt with the consent of the creditor, either accept the path of "first commitment, later recovery", and third, if the marriage provides security for the other party's personal debt and signs jointly, the divorce agreement cannot be exempted from the liability for security, and the security arrangement must be changed through separate consultation with the creditor.

8. Risk Details in Joint Borrowing, Guarantees, and Private Lending

marital debt disputes are often related to the confusion of the three identities of "co-borrower", "guarantor" and "witness. Signing in different identities on IOUs and loan contracts has different legal consequences: the signature of a co-borrower means to assume joint liability for repayment of debts, which belongs to the common meaning of item 1 of article 1064 of the civil code, and it is almost impossible to defend "unused money"; The guarantor's signature bears the guarantee liability, and the creditor can claim according to the guarantee relationship, regardless of whether it is used for the family. The witness's signature only proves the existence of the loan, no repayment obligation arises. In practice, spouses often sign passively without understanding the meaning of the identity column, and the risk is extremely high-before signing any loan document, it is important to see whether the position of their signature is "borrower", "co-borrower", "guarantor" or "witness", and identify them on the spot if necessary. In addition, it should be noted that private lending and financial institution loans have the same rules in determining co-debt, but the interest rate protection is different: the private lending interest rate is subject to the judicial protection upper limit (limited to four times the one-year loan market quotation rate LPR when the contract is established), and more than some courts do not support it. The high-interest part involving the spouse's claim for co-debt is also calculated according to the legal upper limit-the interest part of the debt, don't take all orders.

9. Scenario Simulation: The Fates of Three Promissory Notes

Scenario 1 (Jointly Signed Renovation Loan): A married couple jointly applies to a bank for a renovation installment loan to renovate their newlywed home. Both spouses sign the loan agreement, and the funds are paid directly to the renovation company. Conclusion: It is a common debt formed by a common meaning, which is treated as a common debt at the time of divorce, and both parties bear half of it, and one party can recover it from the other party after paying off. Scene 2 (one party squandered the loan): The husband borrowed 500000 yuan from the small loan company in his own name for the turnover of the store, and then lost money and partly used it for personal high consumption. The wife never signed or knew about it. If the creditor sues the husband and wife for joint repayment, it must prove that the money is used for the husband and wife to live together or jointly produce and operate; If the shop is the main source of income of the family and the wife participates in the operation, it may be determined that the joint operation is used; it is not sufficient to presume that "the husband has opened the shop" alone, and if the evidence cannot be given, it shall be treated as a personal debt. Scene 3 (reverse signing of IOUs and false debts): on the eve of divorce, one party and relatives and friends reverse signing of large IOUs to claim common debts. the spouse applies for judicial appraisal of the formation time of IOUs. it is found that the aging time of ink does not match the date of deposit. the court, in combination with the facts such as no actual transfer and no agreement on borrowing, determines that the fictitious debts are not responsible and the spouse can be held responsible for malicious collusion. The three scenarios correspond to three paths: the common signature is difficult to escape the common debt, the daily scope of the family presumes the common debt, beyond the daily look at the creditor's evidence-the scene into the seat, more than the abstract back law to predict the outcome.

10. Frequently Asked Questions

Does the money borrowed by one of the parties in the marriage count as a joint debt?

Not counting. Look at three paths: whether it is jointly signed or ratified, whether it is the daily needs of the family, and whether large amounts are certified by creditors for joint living and business. Most of the three paths are personal debt.

How do you prove that you are not in debt?

Prove that the loan was not used for the family, not ratified by oneself, and let the creditor bear the burden of proof of "used for living together"; the burden of proof of the use of large debts is on the creditor.

What will happen if you sign a promissory note?

Where a joint expression of intent is formed, the debt shall be recognized as a joint debt and shall be repaid jointly by both parties. The co-borrower's signature, guarantee signature and witness signature are different in nature, and it is important to see the identity column before signing.

Do we have to repay illegal debts together?

Illicit debts, such as those arising from fraud or gambling, are not protected and do not constitute joint debts; the court will not uphold fabricated debts.

It is written in the divorce agreement that the debt belongs to the other party. Can the creditor still find me?

can still be found. The agreement is only valid within the husband and wife and cannot be used against creditors.

Only after the divorce did you discover the joint debt within the marriage, should you pay it back?

to return. The determination of the joint debt is based on the purpose and meaning of the loan, and has nothing to do with whether it is informed or divorced.

How do you get the money back when you pay the debt for the other party?

claim according to two paths: according to the agreement of "the debt shall be borne by the other party" in the divorce agreement, file a claim for recovery; if there is no agreement, according to the internal share of the common debt, the court will determine the share proportion according to the purpose of the loan, the benefits of both parties and so on.

Is it risky for my spouse to ask me to sign "guarantor" on the IOU?

Yes. The guarantor is liable for security rather than joint liability, but the creditor may still recover from the guarantor in the event of non-repayment of the principal debtor.

In private lending, if the interest rate is high, is the spouse also required to repay the debt?

It depends on whether the interest rate is legal. Some courts that exceed the upper limit of judicial protection (four times the one-year LPR at the time of the establishment of the contract) do not protect them, and there is no obligation to pay either the debtor or the spouse who claims to be co-indebted, and the indebted party shall account for the interest on a case-by-case basis.

XI. Lawyers' Practical Experience

The idea that the debt is for two people when they get married is very dangerous. Money borrowed by one of the spouses in his or her own name is considered a joint debt only if it meets the legal requirements: either it is signed jointly by both parties, or it is a common intention clearly ratified by one party afterwards; either it is borrowed for the daily needs of the family; or, although it is beyond the ordinary, the creditor can prove that the money is used for the couple to live together or operate together.Personal borrowing beyond daily life is, in principle, repaid by the borrower himself. Therefore, when receiving a phone call for debts and receiving prosecution materials, the first thing is not to repay the debts in a hurry, but to find out which account the debts should be attributed.

To judge whether it is a daily need, in practice, we will see whether the amount of the loan is commensurate with the family income and consumption level. If it is obviously too high, the creditor will usually be required to provide further evidence. So in the face of debt claims, what you have to do is to check where the money went: whose account it went into, where it was used, and whether it was invested in common housing, common business or household expenses. At the same time, pay attention to the situation of fictitious debts. The IOUs that suddenly appear before and after the divorce, and the loans that only one party signs and cannot explain the purpose, should ask a few more why, and if necessary, apply to the court to transfer funds.

should be more clear: how to divide the debt in the divorce agreement or judgment is only valid between husband and wife. creditors may still claim to both parties that one party can recover from the other party according to the agreement or effective judgment after paying the debt first. Therefore, when divorcing, don't just talk about property and take the debt with you. It is best to write clearly in the agreement what is the common debt, who will bear it, how to share it and how to recover it. In addition, it is reminded that to guarantee the other party's debt, sign the debit note or name on the joint loan agreement, which is basically equivalent to self-admission of co-debt, and must think about the consequences before signing.

The debts of husband and wife are divided into two accounts together with the individual, and the borrowing within marriage is not of course shared. In the face of the common debt proposition, first distinguish the path and the burden of proof: the common signature recognition of the difficult to escape the common debt, the family's daily needs of the scope of the difficult to resist the common debt, beyond the daily large debt is to see the creditor's evidence. Concerned about the party being indebted, it is recommended that three types of evidence be retained from now on: unrecognized evidence (proof of never signing a debit note or statement), evidence of unrelated use (family expense records, personal income flow), and evidence of the other party's use of debt (chat records, transfer whereabouts). After being sued, respond to the lawsuit as soon as possible and apply for handwriting identification. Do not treat it negatively as "uninformed and unrecognized" and miss the time limit for proof.