Insights

Ningbo divorce for the first time not sentenced to leave how to do? Six months to sue again

Ningbo Author：LuXu WANG

When they got a verdict rejecting the lawsuit, many people thought that they didn't make it clear, or that the person they invited was not effective. In fact, the failure to support the first prosecution is a fairly common result, with a stable referee logic behind it. The real difference lies in how the six months after the judgment pass: whether to wait in situ or to make up for the things needed for the next court session one by one.

Why most of 1.'s first indictments are not sentenced.

Article 1079 of the the People's Republic of China Civil Code sets the criterion for divorce as that the relationship between husband and wife has indeed broken down and mediation is invalid. In the first prosecution, both parties often lack objective facts sufficient to prove the rupture. Based on the consideration of maintaining family stability, the court usually gives a period of observation first, which is also the common expression logic in the judgment. In 2014, Ningbo Intermediate People's Court issued the "Innovative Reform Plan for the Trial of Family Cases", which took the lead in starting the reform of family trials in Zhejiang Province. Yinzhou Court and others implemented mechanisms such as marriage cooling-off period and emotional breakdown degree evaluation. When filing the first lawsuit, the court preferred to give both parties a period of observation (according to the 2014 reform plan for family trials of Ningbo Intermediate People's Court and the practice of Yinzhou Court).

Five statutory circumstances can be directly sentenced to leave.

Bigamy or cohabitation with others; domestic violence or abuse or abandonment of family members; gambling, drug abuse and other bad habits; separation for two years due to emotional discord; and other circumstances leading to emotional breakdown. If one of them is available and the evidence is sufficient, even if the first prosecution is filed, the divorce shall be granted after the mediation is invalid. In addition, divorce shall be granted if, after the decision forbids divorce, the parties have been separated for another year and one of the parties sues again.

2. six-month commences and exceptions

if there is no new situation or new reason within six months after the divorce is not allowed, the court will not accept the case if the plaintiff sues again. This restriction is often misinterpreted as having to wait six months, but there are premises and exceptions.

Determination of starting point and new situation

six months shall be counted from the date on which the judgment takes effect, not the date on which the judgment is pronounced; in the case of an appeal, from the date of service of the judgment of the second instance. The so-called new situations and new reasons refer to the facts that occurred after the original judgment and are sufficient to affect the judgment of whether the relationship is broken, such as new domestic violence, cohabitation of the other party with others, malicious transfer of property, and long-term refusal to perform maintenance obligations. New circumstances are not subject to the six-month limit; if the defendant files divorce proceedings, the same is not subject to the limit.

Three things you must do after the 3. verdict

this half year is not an empty wait, but the whole preparation period for the second prosecution. If three things are done in place, the situation in the second hearing will be completely different.

The simultaneous advancement of separation, consolidation and financial management

the first is to form and maintain a state of separation, which is the most effective objective evidence; the second is fixed property clues, including real estate, vehicles, deposits, financial management, shareholding and insurance policy information, to prevent the other party from transferring during this period; Yinzhou The court implements a property declaration system in divorce proceedings, and the second prosecution is truthfully declared item by item according to the declaration form, which can be a fixed basis for subsequent division; the third is to stabilize the status of children's support, in fact, they take care of themselves and keep records of schooling, medical treatment and daily care, and the determination of custody is highly dependent on the existing stable living conditions.

Evidence Upgrade Path of 4. Second Prosecution

if the second prosecution only hand in the first materials again, the result will probably not change. There must be a substantial change in the direction of proof.

Moving from subjective statements to objective records

for the first time, we rely more on chat records and personal statements. For the second time, we should supplement materials that can be independently verified: respective residence certificates, lease contracts and water and electricity payment records, commuting and working place information, alarm receipts and police records, medical records, and testimony of relatives or communities of both parties during the separation period. At the same time, the submission of the first judgment as evidence shows that the relationship has not been repaired after the observation period given by the court, which has a direct impact on the judge's judgment.

How 5. separation facts are fixed

separation is the most valuable and most likely to fail in the second prosecution. The key is to prove the separation of living, not bad feelings. Ningbo Ninghai Court and others have a family investigator system, which can apply for an investigation report on the separation status, etc., as a third-party verification material (according to China's Ningbo Net 2023-06-03 report on the Ninghai Court Family Trial White Paper).

Four sources of separation evidence

first, the residence certificate, the lease contract, housing registration information, property and water, electricity and gas payment records can reflect the actual residence; The second is written confirmation, the separation agreement signed by both parties or the statement about living separately in the exchange messages; The third is the testimony of the community, property, neighbors and relatives and friends confirmed by the third party. The fourth is the behavior track, their respective commuting records, express delivery addresses and daily consumption locations. Multiple sources point to the same time period, the proof is strong enough.

6. case proof

in practice, in the case where the divorce is not allowed to be decided for the first time, if the parties sue again six months after the judgment takes effect and submit the residence certificate, payment record and third-party testimony of continuous separation, the proportion of divorce granted by the court is significantly higher than that of the first prosecution. In practice, the support rate of the second prosecution is usually more than 70%, among which the case where the evidence structure changes from subjective statement to objective record is the most stable. In similar cases, the amount of division or compensation is usually in the range of $100000 to $3 million, depending on the size of the property and the circumstances of the evidence.

In practice, if the two parties continue to separate for one year after the divorce is not allowed, and one party sues again, the court generally directly determines that the relationship has indeed broken down and grants the divorce, and no longer makes long-term mediation arrangements. In such cases, the proof of the starting time of separation is the focus of the review. If only one party's statement is not confirmed by residence, payment or third-party materials, the starting point is often adjusted backward. In similar cases, the amount of division or compensation is usually in the range of $100000 to $3 million, depending on the size of the property and the circumstances of the evidence.

7. Risk Alert

  • living together again after the judgment: interrupting the state of separation will make the accumulated time zero, which needs to be calculated again.
  • Miscalculation of six months: from the date of sentencing rather than the date of entry into force, liable to be ruled inadmissible.
  • Second prosecution evidence copy: the material is not substantially updated, the outcome of the decision is usually not changed.
  • Empty window period does not stare at property: this half year is the other party to transfer assets of the high incidence period, should be synchronized fixed clues.
  • Give the child to the other party to take care of: once the status quo of raising changes, the difficulty of fighting for custody will increase greatly.
  • Only mention separation but not reason: it needs to be explained that it is due to emotional discord and separation, rather than work assignment and other objective reasons.

8. FAQ

do you have to wait six months for the first time?

Not necessarily. There are no restrictions on new circumstances and new reasons; there are no restrictions on divorce proceedings initiated by the defendant. In the absence of such circumstances, prosecution shall be resumed six months after the judgment has entered into force.

Is divorce automatic after two years of separation?

It is not automatic, but because of emotional discord and separation for two years is a legal situation, the evidence is sufficient and the mediation is invalid, the court shall decide to grant divorce. The key is to prove the start and duration of the separation.

The other party just doesn't agree, can it be delayed?

Can't hold off. Divorce shall be granted if, after the decision forbids divorce, the parties have been separated for another year and one of the parties sues again. The fact of continued separation is more decisive than the other's attitude.

Can we divide the property first in the past six months?

In principle, the common property is not divided during the existence of the marriage relationship, but there are circumstances such as concealment, transfer, sale, etc. that seriously damage the interests of the common property, or if one of the persons with legal maintenance obligations is seriously ill and needs medical treatment and the other party does not agree to pay the relevant expenses, the division may be requested.

Practical Experience of 9. Lawyers

after getting the rejection judgment, don't rush to hand it over again. If there is no new situation or new reason within six months after the judgment is not allowed to divorce, the plaintiff will sue the court again and will not accept it. These six months are not counted from the date of judgment, but from the date of entry into force of the judgment; in the case of appeal, from the date of service of the documents of second instance. Therefore, the first thing is to confirm the starting point and arrange the calendar accurately. The so-called new situations and new reasons refer to the new facts that have occurred after the original judgment and are sufficient to affect the judgment of whether the relationship is broken, such as new domestic violence, cohabitation of the other party with others, malicious transfer of property, etc. There is no such situation. The six-month limit can be started in advance.

The six months after the verdict is the critical period for deciding whether to win or lose the second time. Three things must be done: first, immediately enter and maintain a stable state of separation, and fix the fact of separation and time line with objective traces, which is the hardest starting point for the second prosecution; second, make up the evidence that was not done enough last time, and implement the materials corresponding to the legal situation and the continuous facts of emotional breakdown one by one; the third is to sort out the status quo of property and children to prevent the other party from transferring property and changing the actual status of child support during this period. Waiting in place for half a year and doing nothing is the most passive choice.

The fixation of separation is especially to prevent repetition. Moving back to live for a few days, occasionally living in the same room, and having holidays together may all be taken by the other party to claim that the two sides still have a common life and the separation is interrupted. It is prudent to maintain a stable separation of places of residence, leaving traces of daily contacts, including children's transportation and financial contacts, as far as possible, leaving records that can show that the two have lived separately. At the same time, there should be a plan for the other party's good cards: suddenly showing good wishes, finding relatives and friends to testify, and taking the initiative to undertake housework. These actions are often just to prove in court that the relationship has not broken down. Prepare the facts and evidence first, so that you will not be led away at the second hearing.