Insights

Ningbo divorce each other malicious transfer of property 4 steps to recover

Ningbo Author：LuXu WANG

The divorce proceedings are not over yet, and it is found that the other party has started to transfer large amounts of money, sell houses at low prices and inflate debts. In this case, many people's first reaction is anger and their second reaction is bewilderment. In fact, the law has clear regulations on the malicious transfer of the common property of the husband and wife: in the event of divorce, you can request less or no property to the transferring party, and you can also request another division within the legal time limit if you find it after divorce. But rights will not be realized automatically. The key is to fix the evidence and start the procedure in the right way at the right time.

Common forms of malicious transfer of property by 1.

Common malicious transfers in practice include: large cash withdrawals or transfers to relatives and friends in a short period of time, transfer of real estate vehicles at obviously unreasonable low prices, fictitious debts and voluntary settlement, transfer of company equity free of charge or at low prices, transfer of funds through overseas channels, change of beneficiaries after purchasing high insurance, etc.

The surprise of time

malicious transfer often has obvious time characteristics, which usually occurs before and after emotional deterioration, separation and prosecution. If one party discovers that the other party has large capital movements at these critical time points, it should be vigilant.

Associations on Objects

the whereabouts of the funds are mostly related to each other's parents, siblings, close friends or affiliated companies. These transactions are ostensibly normal economic transactions, but in fact they are the temporary removal of common property through the use of related relationships.

2. legal remedies: less divided and re-divided.

Article 1092 of the the People's Republic of China Civil Code stipulates that if one of the spouses hides, transfers, sells, destroys, or squanders the joint property of the husband and wife, or forges the joint debt of the husband and wife in an attempt to encroach on the property of the other party, the joint property of the husband and wife may be divided less or not. After the divorce, if the other party discovers the above-mentioned acts, he may file a lawsuit in the people's court, requesting another division of the joint property of the husband and wife.

"Can be less or not divided" discretion space

the law uses "can" rather than "should". The court will make a comprehensive discretion according to the amount, proportion, subjective malice degree and impact on the rights and interests of the other party. If the transfer amount is large and the circumstances are bad, the court may order it to divide less or even not divide the transferred part.

statute of limitations for re-division

article 84 of the Interpretation (I) of the Supreme People's Court on the Application of the Marriage and Family Code of the the People's Republic of China Civil Code stipulates that the parties shall file a lawsuit in the people's court in accordance with the provisions of Article 1092 of the Civil Code to request the division of the husband and wife again. The limitation period for joint property is three years, calculated from the date of discovery by the parties. Therefore, the discovery of the other party to transfer property should be promptly prosecuted to avoid exceeding the statute of limitations.

3. 4-Step Path to Recovering Transferred Property

the first step is to fix the evidence. Immediately obtain bank flow, real estate transaction records, equity change registration, chat records, transfer vouchers, etc., to prove that the other party has transferred property and the specific amount. The second step is to apply for property preservation. Apply to the court for the seizure or freezing of the remaining property in the name of the other party before or during the prosecution to prevent further transfer. The third step is to file a lawsuit or increase the lawsuit request. In divorce proceedings, it is claimed that the transferring party should be divided less or not divided into property; if it is discovered only after the divorce, a separate post-divorce property dispute lawsuit should be filed. The fourth step, the implementation of the chase turn. After the judgment has entered into force, the transferred property may be recovered from the transferee through enforcement proceedings, or the transferring party may be required to compensate for other personal property.

Types of property preservation

property preservation is divided into pre-litigation preservation and litigation preservation. Pre-litigation preservation requires the provision of security, and a lawsuit is filed within 30 days after the preservation measures are taken; if the litigation preservation is filed after the case is filed, the court may order the applicant to provide security. The scope of preservation should be equivalent to the claim to avoid excessive preservation.

How to choose a court

if the transfer of property is found in divorce proceedings, it is usually handled together in the same case; if it is found after divorce, it shall be under the jurisdiction of the court of the place where the defendant has his domicile or where the property is located. Where the transfer of immovable property is involved, the court of the place where the immovable property is located shall have exclusive jurisdiction.

4. Pre-litigation Preservation and Property Declaration Order

the property declaration order is a system commonly used in family trials in recent years. The court may order both parties to truthfully declare the joint property of the husband and wife. If one party refuses to declare or makes a false declaration, the court may divide it less or not at the time of division.

Role of property declaration orders

through the property declaration order, the other party can be required to voluntarily disclose bank deposits, real estate, vehicles, equity, funds, insurance and other property information. If the other party conceals or falsely reports, it can be used as an important basis for determining the existence of its fault.

Cooperation of declaration and retrieval

property declaration order is not a panacea, many parties will not take the initiative to truthfully declare. Therefore, it is necessary to compare the contents of the declaration with external evidence such as bank flow and real estate registration information, and then investigate in depth after finding obvious differences.

The supplementary application of the right of avoidance of 5. creditors.

If the other party transfers the common property to a third party free of charge or at an obviously unreasonable low price, in addition to claiming less under Article 1092 of the Civil Code, it may also consider filing a creditor's avoidance action or similar path under Articles 538 and 539 to request the revocation of the disposition.

Constitutive elements of the right of revocation

the establishment of the right of avoidance needs to satisfy: the debtor has committed an act of disposition that is gratuitous or manifestly unreasonably low, the act affects the realization of the creditor's claim, and the assignee knows or should have known of the situation. In the case of divorce property division, this right can be used as a supplementary means to recover the transferred property.

Exclusion period for revocation

the right of avoidance shall be exercised within one year from the date on which the creditor knows or should know the cause of avoidance, and if it is not exercised within five years from the date on which the debtor's act occurs, the right of avoidance shall be extinguished. Therefore, the transfer should be detected as soon as possible to avoid the expiration of the right.

6. Evidence Collection and Burden of Proof

proof of a malicious transfer of property by the other party requires a high standard of proof. Common evidence includes: large abnormal transfers in the bank flow, low-cost transaction contracts for real estate or vehicles, equity transfer agreements, chat records with third parties, witness testimony, etc.

Determination of transfer amount

the court will determine whether an expense is reasonable in the context of the transaction. For example, large alimony payments to parents are generally not considered a transfer if it is a long-standing practice and the amount is reasonable; however, a surprise transfer several times the usual amount prior to divorce may be considered without a reasonable explanation.

Defense of Reasonable Expenditure

the party accused of transferring property will often argue that the expenditure is used for normal business transactions, family expenses or debt repayment. At this point, you need to provide evidence such as contracts, invoices, repayment vouchers, etc. If there is no way to prove or the evidence is obviously unreasonable, the court tends to determine the transfer.

7. case proof

according to similar rules, a party transferred the property under his name to his brother at a significantly lower market price a few months before filing a divorce lawsuit, and transferred large amounts of funds in the bank account to the parents in batches. The other party applies for property preservation after discovery and claims that the other party maliciously transfers the joint property of the husband and wife. After hearing, the court found that the transfer price was obviously unreasonable, the transfer time was highly related to the divorce node and there was no reasonable explanation, and decided that the transferred property should be divided less or not, and required it to pay the corresponding discount compensation to the other party. 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, after a divorce, one party discovers that the other party has transferred the company's equity to a related person free of charge during the marriage, and files a post-divorce property dispute lawsuit within three years from the date of discovery. After reviewing the equity transfer agreement, the company's industrial and commercial registration change record and the transfer consideration, the court found that the transfer constituted a malicious transfer of the joint property of the husband and wife, and decided to cancel the transfer or order the transferor to compensate the other party for the corresponding losses. 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.

8. Risk Alert

  • the discovery of signs of transfer was not preserved in time, resulting in the other party continuing to transfer the remaining property.
  • The evidence is not fixed in time, the bank flow exceeds the retention period or the transfer record is deleted.
  • It took more than three years of statute of limitations to discover and sue, losing the right to split again.
  • Misjudging normal household expenditure as a transfer of property leads to a lapse in litigation strategy.
  • The recovery of property is not handled together with divorce proceedings, increasing the cost and time of litigation.

9. FAQ

find the other party to transfer property, the first step to do?

The first step is to fix the evidence, as soon as possible to obtain bank running water, real estate transaction records, equity change registration and other materials; at the same time, consider applying for property preservation to prevent the other party from continuing to transfer. It is recommended to advance synchronously under professional guidance.

How to transfer property only after divorce?

Within three years from the date of discovery, an action may be brought before the court to request a further division of the joint property of the spouses. Beyond the three-year statute of limitations, the court may not support.

Can the other party transfer the money to the parents to get it back?

If the transfer takes place within a short period of time before the divorce, the amount is obviously beyond the scope of normal support and there is no reasonable explanation, it may be considered as a transfer of the joint property of the husband and wife, and the claim may be made for less or no division, and the corresponding amount shall be recovered.

What conditions are required for property preservation?

Property preservation requires proof of the real risk of the other party transferring or concealing the property, and the provision of security. The pre-litigation preservation shall be brought within 30 days of the preservation. The scope of preservation is generally limited to the amount of the claim.

Practical Experience of 10. Lawyers

when you find that the other party transfers large amounts of money, sells houses at low prices, and pays debts suddenly, the most important thing to do after anger is to stop losses. The law regulates the malicious transfer of common property: in the event of divorce, it is possible to request a small or no division of the transferring party, and it is only discovered after the divorce, and it is also possible to request a re-division within the statutory time limit. However, these rights will not be realized automatically. The key lies in the early-the earlier the evidence is fixed and the earlier the procedure is started, the greater the hope of recovery. Delay will only make the property continue to be lost, and when you think about it, there may be very little left.

The action can be divided into several steps: first, fix the abnormal transaction, and organize the bank flow, transfer record, real estate transfer, equity change, etc. into a clear timeline; Then judge the whereabouts of the property, focusing on the other party's parents, relatives, affiliated companies and obviously unreasonable low-price transactions; At the same time, consider property preservation before or during litigation, freeze accounts, seal up real estate, and prevent further punishment; if the other party discovers fictitious debts and voluntarily pays them off, the authenticity of such debts should also be found out. Evidence to be standardized, electronic data to retain the original carrier.

In addition to claiming less points in divorce cases, property that has been disposed of free of charge or at a low price can also be recovered through the right of revocation and other means if the conditions are met; if concealment or transfer is discovered after divorce, it shall be divided again in a timely manner, and be careful not to miss the deadline. When negotiating, it is often useful to make the evidence advantage clear than to shout: once the other party realizes that you are checking the capital chain, the possibility of active concessions will rise. Finally, I remind you not to use illegal means to check the other party. Cross-border evidence collection may bite you and hand over the facts and evidence to the procedure to solve the problem more stably.

In the face of one party's malicious transfer of the husband and wife's common property, the most effective response is fast, accurate and complete: quickly fix the evidence, accurately choose the relief path, and fully preserve the remaining property. The legal basis is mainly the rule of little or no division in Article 1092 of the Civil Code, as well as the right of claim for re-division within the three-year statute of limitations after the discovery of the transfer after divorce. If necessary, property that has been transferred without compensation or at a low price may be recovered in conjunction with a creditor's avoidance action. Due to the tight time and high evidence requirements in such cases, it is recommended to initiate legal procedures as soon as possible when abnormalities are discovered to avoid property loss or expiration of rights due to delays.