Insights

Ningbo Divorce Counseling Common Ten Questions and Ten Answers

Ningbo Author：LuXu WANG

When first consulting about divorce, most people are concerned about both the outcome and the process. How to choose between divorce by agreement and divorce by litigation? How to deal with property and children? What if the other party does not agree? These questions have relatively clear answers in law, but whether the answer is in your favor depends on the evidence in your hand and the strategy you choose. The following is a summary of the ten most common questions in divorce counseling in Ningbo for preliminary judgment.

1. the choice of divorce

there are two main paths to divorce: divorce by agreement and divorce by litigation. Agreed divorce requires both parties to reach an agreement on divorce, child support, property division, and debt handling, and to receive a divorce certificate after a 30-day cooling-off period. Divorce proceedings apply where one party does not agree to the divorce or where the parties are unable to agree on the above matters.

The Costs and Limitations of Agreed Divorce

agreed divorce has low cost and short cycle, but only if both parties can fully negotiate. If the property is complex, the debt dispute is large, the child support plan is difficult to implement, the agreement divorce may bury the potential for subsequent disputes. Once the divorce agreement enters into force, it is binding on the division of property and the maintenance of children for a long time, but certain provisions may be invalid because of the violation of the law.

Applicable Scenarios of Divorce Proceedings

if one party firmly disagrees with the divorce, there is a large gap in property division, there is domestic violence, one party conceals the transfer of property, and the dispute over child support cannot be negotiated, it usually needs to be resolved through litigation. The litigation divorce cycle is longer, but the judgment is enforceable and more suitable for complex or confrontational situations.

Basic rules for the division of 2. property

the Civil Code provides that the common property of the spouses is, in principle, divided equally, while taking care of the rights and interests of the children, the woman and the innocent party. Individual property shall be owned by each individual and shall not be converted into common property as a result of the continuation of the marital relationship.

Distinction between common property and personal property

wages, bonuses, income from production and operation, income from intellectual property rights, inheritance or gift income (not expressly attributed to one party) obtained after marriage are common property. Premarital property, compensation obtained by one party for personal injury, property determined to belong only to one party in a will or gift contract, and special daily necessities of one party are personal property.

Particularity of property division

property division is the most complex part of divorce property disputes. If the personal real estate before marriage repays the loan jointly after marriage, the property right belongs to the registered party, but the joint repayment of the loan after marriage and the corresponding value-added are compensated. If the parents contribute to the purchase of the house after marriage, it depends on the time of contribution, registration and the meaning of gift.

3. child support and visitation arrangements

the ownership of custody of children is based on the principle of maximizing the interests of minor children. In principle, children under the age of two shall be directly raised by their mothers; comprehensive judgment over the age of two; and respect the true wishes of their children over the age of eight.

The calculation standard of alimony.

The amount of alimony is determined according to the actual needs of the children, the affordability of both parents and the actual living standard of the locality. If there is a fixed income, it is generally paid in proportion to 20% to 30 of the monthly income; if it bears more than two children, the proportion may be appropriately increased.

Specific arrangements for visitation rights

the manner and time of the exercise of visitation rights shall be agreed upon by both parties, and the court shall decide if the agreement fails. The judgment should be as specific as possible, such as weekly or biweekly, location of handover, holiday arrangements, etc., to facilitate subsequent implementation.

4. fault compensation and debt treatment

where divorce is caused by serious mistakes such as bigamy, cohabitation with others, domestic violence, maltreatment and desertion of family members, the party without fault shall have the right to claim damages. Where debts are fictitious or property is concealed or transferred, the property may be divided less or not.

Determination of common debt

common debt includes co-debt, debt for the daily needs of the family, and debt that creditors can prove to be used to live or operate together. Personal debt that exceeds the daily needs of the family and is not used for living together is not a joint debt.

5. Divorce Cooling-off Period and Litigation Process

agreed divorce has a 30-day cooling-off period, during which either party withdraws its application and the divorce registration is terminated. There is no cooling-off period for litigation divorce, but the court will decide whether to divorce according to whether the relationship is broken and whether the mediation is effective.

What if the first prosecution is not sentenced to divorce?

If the court determines that the relationship has not broken down when the first divorce is filed, the divorce is usually not granted. The court shall grant the divorce if the case is filed again after the judgment takes effect and has been separated for one year. During this period, attention should be paid to retaining evidence of separation and emotional breakdown to prepare for the second prosecution.

6. case proof

according to the rules of the same kind of judgment, after the husband and wife reach an agreement on divorce, property division and child support, one party withdraws the application during the cooling-off period, the other party then files a divorce lawsuit, and the court finds that the relationship has indeed broken down and decides to grant the divorce and divide the property according to law. 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 adjudication rules, one party's first lawsuit for divorce was not granted, and after the judgment came into effect, the two parties continued to be separated for one year, and one party sued again, and the court granted the divorce in accordance with Article 1079 of the Civil Code, and made a decision on the maintenance of children and the division of 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.

7. Risk Alert

  • the agreement on divorce is not clear: property ownership, transfer period, alimony adjustment and visitation plan are written in general terms, and subsequent litigation is easy to re-litigate.
  • Ignore the risk of cooling-off period: either party can withdraw during the 30-day cooling-off period, and the planned divorce by agreement may be suddenly interrupted.
  • Insufficient evidence for the first prosecution: failure to prove emotional breakdown may lead to non-divorce for the first time and lengthen the litigation cycle.
  • Confusing common debt with personal debt: an unexamined IOU that one party suddenly takes out may incur more debt.
  • Ignoring the wishes of the child: if the child has reached the age of eight and clearly expresses his wishes, the court will focus on the reference, and ignoring this factor may be detrimental.

8. FAQ

divorce agreement and divorce proceedings which is good?

If both parties can agree on all matters, the divorce by agreement will be faster and cheaper; if the difference is large or one party does not agree, the divorce can only be filed. If the property is complex, there is domestic violence or hidden property, it is recommended that priority be given to divorce proceedings.

Can the divorce cooling-off period be skipped?

Can't. Agreed divorce must go through a thirty-day cooling-off period. If you want to divorce as soon as possible, you can choose to divorce litigation, litigation divorce no cooling-off period.

Do you have to divide your property before marriage when you divorce?

Premarital property is in principle owned by the individual and does not need to be divided. However, the operating income generated by the pre-marital property after marriage, the joint repayment of the loan after marriage and the corresponding value-added may need to be divided.

Does a child under two years old have to go to his mother?

In principle, it is directly raised by the mother, but if the mother has an infectious disease that cannot be cured for a long time, or if the conditions for raising do not fulfill the obligation to raise it, the father can also raise it directly.

Can I ask for a one-time payment of alimony?

It can be negotiated, but the court usually decides to pay on a monthly or annual basis. A one-time payment requires that the other party has the ability to pay and does not impair its basic life.

Can the other party cheat and let him go out of the house?

Can't. Derailment itself does not necessarily lead to a clean body out of the house. Only in accordance with the statutory fault situation and the existence of hidden, transfer of property and other acts, it is possible to divide less or no property.

Can the divorce agreement be reversed?

The provisions on the division of property in the divorce agreement can be revoked within one year if there is fraud, coercion, etc. But simple regret generally cannot be overturned.

What materials do you need to prepare to sue for divorce?

Generally, complaints, identity certificates, marriage certificates, birth certificates of children, property clues, evidence of emotional breakdown, etc. Where property division is involved, evidence such as real estate certificate, bank flow, vehicle registration, etc. should also be prepared.

If one party does not agree to divorce, will the court give a divorce?

In the first prosecution, if the other party does not agree and the court believes that the relationship is not broken, it may not be sentenced. If a person resues after living apart for one year after the judgment becomes effective, he shall be sentenced to leave.

Can I check the other party's property during divorce?

Public information can be collected on its own, or a court investigation order or an ex officio court investigation can be applied for in the proceedings. Specific property clues need to be stated when applying, and the more specific, the easier it is to be approved.

Practical Experience of 9. Lawyers

in the first consultation, instead of asking "can I win", it is better to think clearly about a few basic questions: whether you plan to leave by agreement or lawsuit, whether there is any disagreement between property and children, and whether the other party may delay or hide. Because these choices directly determine the processes and costs that follow. Agreed divorce is fast and low in cost, but only if both parties can reach an agreement. Once the property is complicated, the difference is big, or there is domestic violence, transfer of property, etc., litigation can protect you better. First, we should distinguish the path before we can talk about the following strategies.

No matter which way you go, the consultation stage starts with two things: a list of assets and debts as complete as possible, and a preliminary plan around child support and visitation. Many people think that "we don't have to worry about it before we reach that point". As a result, we didn't start work until the talks broke down, and the other party turned away what should have been turned. The arrangement of children should be especially specific to the standard of alimony, visiting time, school and residence. General agreements are most likely to cause disputes in the future. Write these down first, judge which can stand up and which need to be supplemented with evidence, and you will have a bottom in your heart.

Consultation should also solve the problem of your rhythm and bottom line: which must be won, which can be compromised to change time or the other party's cooperation, and set the upper and lower limits in mind first. The cooling-off period, prosecution, response to litigation and mediation should be roughly known to avoid being led by the other party's delay. Don't expect all the answers to be determined in one consultation-it is more practical to make clear the next step, such as which evidence should be fixed, whether to apply for preservation, whether to talk about it first, and then adjust it according to the reaction of the other party, which is much more useful than pursuing a "standard answer.

Most of the problems in divorce counseling ultimately boil down to three things: choosing the right divorce path, preparing sufficient evidence, and writing specific enforceable items. Agreement divorce is suitable for couples with small differences, and litigation divorce is suitable for complex or antagonistic situations. Whether it is an agreement or a lawsuit, the core provisions such as property ownership, child support, visitation plan and debt disposal should be put on paper to avoid future troubles left by vague expressions such as separate negotiation. It is suggested that in major property or maintenance disputes, the evidence should be sorted out in advance, the timeline should be sorted out, and the rights should be fixed through litigation procedures when necessary, instead of waiting for the conflict to intensify and then passively deal with it.