Insights

Ningbo divorce property declaration order does not truthfully declare what consequences

Ningbo Author：LuXu WANG

In the past, when we checked the assets of the other party, we all relied on ourselves to ask around whether we could find out the fate. The court can now require both parties to itemize their property and sign it for confirmation, changing the obligation to state truthfully from a moral level to a procedural obligation. This system changes not only the difficulty of obtaining evidence, but also the price to be paid once lying.

What is a 1. property declaration order and when it was issued

in divorce cases involving the division of the joint property of husband and wife, the people's court may, on the application of the parties or ex officio, order both parties to truthfully declare the property in their respective names and joint names within a specified time limit. The declaration form is signed and confirmed by the parties concerned and has the nature of a promise. After signing, it will not be accepted in the follow-up procedures if it is not known or remembered clearly. 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 simultaneously implemented mechanisms such as property declaration in divorce proceedings. Ningbo parties' application for property declaration orders has been supported by relatively mature local practice.

Timing and writing of application

it is usually made after the filing of the case and before the expiration of the period of proof, the sooner the better, which can compress the time window for the other party to transfer assets. The application shall state the type of property requested to be declared by the other party, the reasons and the preliminary clues already mastered. The more specific the clues, the higher the possibility of the court's adoption. If it is submitted before the hearing, the court may also be requested to specify the time limit for declaration and the legal consequences of false declaration.

Scope of 2. declaration and caliber

the scope is not limited to existing assets, but also includes claims and debts and property that has been disposed of, which is most easily overlooked.

Six categories of content that must be specified

the first is real estate, including houses, land use rights and the purchase rights and interests that have not yet been certified; the second is movable property, including vehicles, valuables and collectibles; the third is financial assets, including bank deposits, financial management, funds, securities, insurance policies, cash value and third-party payment account balance; the fourth is investment rights and interests, including company equity, partnership shares, individual business assets and holdings; the fifth is creditor's rights and debts, includes external borrowings, receivables and joint debts; sixth, significant property disposals in recent years, including large transfers, gifts and low-cost assignments. The name, quantity, location or account information of the subject matter and the time of acquisition shall be indicated. According to the Yinzhou Court's White Paper on the Trial of Marriage and Family Cases (2019-2021), more than 99% of divorce cases in Ningbo involve the division of property and the emergence of new types of property such as pets, game equipment and virtual currency, and the scope of declaration should cover such new types of assets as far as possible.

Three types of consequences of non-reporting or under-reporting of 3.

Many people hold a fluke mentality and feel that they cannot find it without writing. In fact, the consequences are distributed on three levels and superimposed on each other.

The three-tier pressure of procedure, entity and credit.

Procedural, refusing to declare, false declaration or omission of important property, the court may, in accordance with the provisions of the Civil procedure Law on obstruction of civil litigation, take compulsory measures such as fines and detention. Substantially, Article 1092 of the Civil Code stipulates that if one party hides, transfers, sells, damages, squanders the joint property of husband and wife or forges the joint debts of husband and wife, it may be divided less or not divided. Credit, the fact of false declaration will be recorded in the file, which directly affects the judge's judgment on the overall credibility of his statement, and also affects the discretion of custody and other disputed matters.

4. cooperation with inquiry, investigation order and security

the declaration order is to let the other party say that verification and fixation still need other tools to cooperate, and the combination of the three is the best.

Division of Three Tools

first, the court's network inspection and control system can verify real estate, vehicles, bank deposits, securities and some equity information for comparing the authenticity of the declaration contents. Second, the application for investigation and evidence collection and the investigation order are applicable to the parts not covered by the inspection and control system, such as the company's complete account book, third-party payment details, policy details and transaction flow for a specific period. Third, property preservation is used to freeze the identified assets first, avoid new transfers after the declaration and before the judgement. The shorter the time interval between the three steps, the better.

5. found the other side to conceal the claim after the path.

The concealment may be discovered in litigation or may not surface until long after the divorce, and the remedies for the two situations are different.

Two paths in litigation and after divorce

if it is found in the litigation, the comparison materials shall be submitted immediately, and the court shall be requested to deal with the concealer with less or no division, and the relevant property may be applied for preservation measures at the same time. If it is discovered only after divorce, a separate post-divorce property dispute lawsuit may be filed to request another division. The statute of limitations for such requests is three years, calculated from the date of discovery by the parties, so the evidence should be fixed and prosecuted in time after the clues are found, and it is not appropriate to wait and see for a long time.

6. case proof

in practice, if one party omits its its securities account and large amount of financial management in the property declaration, and is verified after the other party applies for investigation, the court usually determines that it constitutes a concealment of common property and makes a small division of the property when dividing the part of the property. The common small division range is between 20% and 40%, and if the circumstances are serious and the amount is huge, the judgment can be divided. 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 a party transfers a large deposit to a relative's account in batches a few months before the lawsuit and cannot explain the reasonable use, even if it truthfully fills in the current balance in the declaration form, it may still be considered as transferring the joint property of the husband and wife. In such cases, the court generally divides the transfer amount into the total amount of common property and then divides it, and divides the transfer party accordingly. 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

  • take the declaration as a form: the signature confirmation is of the nature of a promise, and it is difficult to be accepted if it is changed afterwards.
  • Report only existing assets: omission of large dispositions and external claims in recent years is also a false declaration.
  • Do not apply for preservation after declaration: there is still room for transfer between declaration and judgment, which should be fixed synchronously.
  • Clue general application: no preliminary clues to support the declaration of the request, the court's willingness to adopt is low.
  • Missing the limitation of division again: if a concealment is found after divorce, the prosecution shall be filed within three years from the date of discovery.
  • Obtain the other party's account information by oneself: Materials obtained by improper means may be excluded due to legal defects.

8. FAQ

what will the court do if the other party does not declare?

They can be fined or detained in accordance with the provisions of the obstruction of civil litigation; when the property is divided, it can also be determined that they have concealed acts, and they can be dealt with with less or no division.

To what extent should the declaration form be written?

The name, quantity, location or account information and time of acquisition of the subject matter shall be specified, and shall cover real estate, movable property, financial assets, investment rights and interests, creditor's rights and debts, and major property dispositions in recent years.

I don't know what property the other party has and how to apply?

It is enough to provide preliminary clues, such as banks commonly used by the other party, enterprises in which they work or hold shares, and assets that have been mentioned. The court can check through the network inspection and control system, and the part that is not covered can apply for an investigation order.

Two years after the divorce, it was discovered that the other party had hidden the money. Is it still too late?

It's not too late. A separate post-divorce property dispute lawsuit may be filed for re-division. The statute of limitations is three years, calculated from the date of discovery, but the evidence should be fixed as soon as possible.

Practical Experience of 9. Lawyers

the property declaration order changes the truthful description of property from a moral requirement to a procedural obligation, which is the biggest difference between it and the past. The declaration form should be signed and confirmed by the parties concerned. It has the nature of commitment. After signing, it can't be remembered clearly and without knowledge. It will not be accepted in the follow-up procedures. Therefore, if you are the party required to declare, don't be fooled with the mentality of underreporting if you can underreport. Once you are found to conceal or underreport, the cost is often greater than what you voluntarily confessed. This point will be weighed repeatedly in negotiations and trials.

From the operational rhythm, the application should be made as early as possible, usually after the filing of the case and before the expiration of the period of proof, the earlier the window period for the transfer of assets by the other party can be compressed. The application should state the type of property requested to be declared, the reasons, and the preliminary clues that they have mastered. The more specific the clues, the easier it is to be adopted. The court may also be requested to specify the scope and time limit of the declaration. The scope of the declaration should also be noted that the scope is often not limited to the assets under the current name, but also includes creditor's rights and debts and major property disposals in recent years, such as large transfers, gifts, and low-cost transfers. These are the most easily overlooked, and they are precisely the breakthrough in the investigation and concealment.

If it is found that the other party conceals or fails to declare truthfully, this point can be used as an important basis for claiming that it is less divided or not divided, and it can be used in conjunction with inquiries, investigation orders, preservation and other means: first use the declaration to fix the other party's caliber, and then through banks, Real estate, securities and other channels to confirm, once contradictions are found, the evidence will be fixed in time and reported to the court. The negotiation level also works. The other party knows that it is responsible for concealing the report and is often more willing to sit down and talk. To make good use of the declaration order, the key is to apply early, write down the details and check after getting the caliber.