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Ningbo divorce fictitious debt prevention and proof 4-step method.

Ningbo Author：LuXu WANG

In divorce proceedings, in addition to fighting for property, there is a more hidden attack and defense-one party suddenly takes out several IOUs, claiming to owe hundreds of thousands of dollars to his parents or friends. Whether these debts are real, when they were borrowed, and where the money went often directly determines whether the other party will share less property or more debt. Identifying fictitious debt cannot rely on intuition, but on a set of replicable cross-examination methods.

Common techniques for 1. fictitious debt

the core purpose of fictitious debt is to reduce the net value of the divisible property by increasing the joint debt of the husband and wife, or simply to get the other party out of the house. Common practices include: signing IOUs with friends and relatives, forging or recycling transfer flows, fictitious business losses or investment failures, and packaging personal debt into family debt.

Replenishment of IOUs and reverse dates

the most common form of fictitious debt is for one party to ask parents, relatives and friends to make up IOUs before and after the divorce, and to reverse the date of the loan to the duration of the marriage relationship. The debit note usually has no corresponding flow of funds, or only a record of unilateral cash withdrawals, lacking traces of a true lending relationship.

Revolving Transfer Manufacturing Flow

by circulating transfers between related accounts, a record of financial transactions is created, and one of them is packaged as a loan. This flow is characterized by a closed loop of funding sources and whereabouts, the same or similar amounts, and a concentration of transfer times, which is significantly different from the flow of funds for real borrowing.

Fictitious operating liabilities

one party claims to have a high external debt on the grounds that the company's operating losses and investment projects have failed. Such debts often lack complete contracts, invoices, tax records, resolutions of shareholders' meetings, etc., and are difficult to identify on the basis of individual statements or agreements with related parties of the company.

Triple review criteria for 2. couple's joint debt

article 1064 of the Civil Code establishes three ways to judge the joint debt of husband and wife, and is also a legal weapon to identify fictitious debts. Any debt can only be recognized as a joint debt if it falls into one of these three paths.

Co-signing and ex post facto ratification

A debt signed jointly by the husband and wife or recognized by one party afterwards is a joint debt. If only one party signs the debit note, the other party does not sign, no after-the-fact confirmation, no joint repayment behavior, in principle can not be considered as a joint debt.

Daily life of the family needs standards

the debt incurred by one party in the name of an individual for the daily needs of the family is a joint debt. However, the scope of daily life needs is usually limited to daily expenses such as food, clothing, children's education, medical care, ordinary household expenses, etc., and large loans, business investments, and luxury consumption clearly exceed this range.

Creditor evidence for common life or business

for debts that exceed the daily needs of the family, the creditor needs to prove that the debt is used for the husband and wife to live together, to produce and operate together, or to express the common will of both parties. The burden of proof is on the creditor, not the non-borrower. This is the most common breach of fictitious debt.

4 Anchors 3. Identifying Fictitious Debt

in the face of the sudden appearance of IOUs, we should cross-examination from four dimensions and gradually dismantle their authenticity.

Step 1: Check the formation time of the IOU.

The writing time of the debit note, the old and new paper, the signed ink, the printed font, etc. can be judged by means of identification. Backdated IOUs often expose traces on paper, ink, and handwriting. In addition, whether the content of the IOU is consistent with the chat records and correspondence between the two parties can also reflect the real formation time.

Step 2: Check the actual flow of funds

real borrowing is bound to have capital flow. Creditors are required to provide complete bank running water to find out where the funds came from, whose accounts they went into, and where they went. If the funds are only idle between the accounts of related parties, or if the whereabouts of the withdrawal is unknown, the authenticity of the loan is in doubt.

Step 3: Check the purpose of borrowing and household benefits.

Where the borrowing is used and whether it is used for family living together or joint business is the core point of examination. If the loan is used for one party's personal gambling, personal investment, personal consumption, or does not enter the family account, even if the loan is real, it is not a joint debt of the husband and wife.

Step 4: Check the relationship between creditors and borrowers.

The authenticity of loans between parents, siblings, and close business partners is more likely to be questioned. It is necessary to review whether the two parties have previously exchanged funds, whether the debit note pays interest, whether there is a repayment record, and whether the collection method is in line with common sense. Large interest-free loans, long-term non-collection, and sudden prosecution near divorce are all red flags.

4. cross-examination and evidence collection strategy

in litigation, the non-borrowing party should not only deny the debt, but should take the initiative to submit evidence and investigation applications, the burden of proof back to the creditor side.

Apply for bank flow and account details.

You can apply for a court investigation order or the court's ex officio to obtain the bank account flow of the borrower and creditor, focusing on the time, amount and counterparty information of the funds in and out. Flowing water can often directly reveal whether the funds are actually lent and whether they are flowing back.

Application for handwriting and formation time identification

apply for appraisal of the writing time and signature authenticity of IOUs and IOUs. Although the formation time appraisal has certain technical difficulty and cost, the appraisal conclusion often plays a decisive role when the amount of dispute is large.

The legal consequences of 5. false debts.

A fictitious debt may not only result in the debt not being recognized as a joint debt, but may also trigger more serious legal consequences. Article 1092 of the Civil Code stipulates that if one of the spouses forges the joint debt of the husband and wife in an attempt to occupy the property of the other spouse, the division of the joint property of the husband and wife may be divided less or not.

Penalty for obstruction of action

if the act of fabricating debts constitutes a false lawsuit, the court may impose a fine or detention according to the seriousness of the circumstances; if the act constitutes a crime, criminal responsibility shall be investigated according to law. Therefore, fictitious debt is a double-edged sword. Once verified, the borrower will not only be unable to share more property, but may also face penalties.

6. case proof

according to similar judgment rules, one party submitted an iou issued by his parents in divorce proceedings, claiming to borrow 800,000 yuan from his parents during the marriage for the purchase of a house. However, the bank flow showed that the money was transferred back to his parents' associated account within a short period of time. The court found that the loan relationship was untrue, did not support the debt as a joint debt of husband and wife, and gave a small share to the borrower's forgery of debt when dividing the property. 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.

According to similar judgment rules, one party claimed to borrow 1.2 million yuan due to the company's operating losses. The creditor sued and demanded both husband and wife to repay together. After examination, the court found that the loan contract lacked real transaction background, the funds did not enter the company's account, and there was no tax payment or invoice evidence. It ruled that the debt did not belong to the joint debt of husband and wife and was borne by the borrower. 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

  • only denying and not giving evidence: simply saying that the iou is false cannot shake the judge's heart and need to take the initiative to apply for water transfer or appraisal.
  • Missed the time limit for proof: the application for investigation and evidence collection should be submitted within the time limit for proof, which may be rejected.
  • Trust the other party's relatives and friends testimony: the testimony of relatives and friends is weak, should focus on reviewing the flow of funds and the use of borrowing.
  • Ignoring property division tilt: once the forged debt is verified, it can be argued that the borrower should be divided less or not divided into property, not just staring at the debt.
  • Concede a debt at will in mediation: Admitting an unknown debt in mediation for the sake of a speedy divorce may be difficult to overturn afterwards.

8. FAQ

the other party took an iou and said that he owed his parents money. should I pay it back together?

Not necessarily. If the IOU is signed only by the other party, you do not sign or ratify it, and the loan exceeds the daily needs of the family, the creditor needs to prove that the loan was used for the couple to live together or operate together. What cannot be proved is not a joint debt.

How do you prove that the IOU was written back?

You can apply for handwriting formation time identification, or you can apply for bank access to check whether the funds are actually lent and whether they are returned. Whether the contents of the IOU are consistent with the chat records of both parties and the economic situation at that time is also the basis for judgment.

What are the consequences of fictitious debt?

If the joint debt of the husband and wife is forged in an attempt to occupy the other party's property, the party may be divided less or not divided when the property is divided by divorce; if the circumstances are serious, it may also constitute a false lawsuit and face fines, detention or even criminal liability.

How to avoid being more indebted when divorcing?

Timely sorting out the family's external debts, focusing on the sudden emergence of IOUs to examine the formation time, capital flow, borrowing purposes, creditor relations.

Practical Experience of 9. Lawyers

one of the most hidden attacks and defenses in divorce proceedings is that one party suddenly takes out several IOUs, claiming to owe hundreds of thousands of dollars to his parents or friends. The experience of handling cases shows that whether such debts are real, when they are borrowed and where the money goes often directly determines whether the other party will share less property or carry more debts out of thin air. Identifying fictitious debts cannot be done by intuition, nor can it be done by saying "I don't recognize". Instead, it must return to the judgment standard of husband and wife's joint debt: any debt can only be recognized as a joint debt if it falls into one of the following paths: joint signature or subsequent ratification, responsibility for the daily needs of the family, and creditors can prove that it is used to live together or operate together. Hold on to this ruler, cross-examination will be methodical.

When it comes to operation, you can examine the debts thrown by the other party along several anchor points: whether there is a corresponding flow of funds in the debit note, or only unilateral cash withdrawal; Whether the capital flow is closed-loop between related accounts, with similar amounts and concentrated time; Is there any supporting evidence such as contracts, invoices, tax records, etc. for the so-called operating liabilities? Is the lender closely related to the other party, or does it only appear before and after divorce. Asking questions along these lines, the difference between real borrowing and fictitious debt usually shows up. The cross-examination should be targeted to ask the other party to explain the purpose of the loan and the whereabouts of the funds, and apply for access to the relevant flow of water, pushing the pressure of proof back, rather than generally questioning.

In the collection of evidence, we should focus on "the funds are not used for the family": the level of the family's daily expenses, the actual income and consumption of both parties, whether the relevant funds flow into the family account, etc., can show that the debt has nothing to do with living together. At the same time, we should also remind ourselves that preventing fictitious debts does not mean that we can falsify evidence in turn-whether it is to make up IOUs, create water or collude with others. Once it is found out, not only will the claim be untenable, but also the corresponding consequences may be borne. Using the rules correctly and making the evidence true is the safe way to keep the property and not cause trouble.

Fictitious debt is one of the most vigilant traps in the division of divorce property, and identifying it cannot rely on feelings, but on systematic cross-examination. Firmly grasping the four anchor points: the time of formation of the debit note, the actual flow of funds, the true use of the loan, and the relationship between the creditor and the borrower, the burden of proof can be pushed back to the other party and the creditor. At the same time, it should be noted that once false debts are verified, not only can they refuse to bear them, but they can also claim less or no property to the borrower. It is suggested that when divorce proceedings are initiated, the family debt situation should be sorted out simultaneously, and the abnormal debt should be investigated and collected in time, so as to avoid passively admitting unknown debts in mediation or trial.