After the divorce in Ningbo, it was discovered that the other party concealed debts.
A "common debt" comes up only after the divorce, saying that it was borrowed during the marriage and asked you to pay it back-this is a common pit. True or false, should you bear, depends on the nature of the debt and your knowledge.
1. discovers debt after divorce
the claim of marital debt only appears after divorce, and the first thing to do is to calmly identify the authenticity and nature, rather than to recognize it all. Many "sudden debts" are fictitious or exaggerated. Don't panic, also don't rush to recognize, to find out the nature before dealing with, hasty recognition often suffer big losses.
Don't panic.
A creditor or ex-spouse who unilaterally says "has a joint debt" does not mean that you really want to bear it. First look at whether it really happens and whether it is used for living together. The other side said that there is a debt, the law does not recognize, the key lies in the evidence and use.
2. the authenticity of the debt.
Verify loan contracts, transfer vouchers, and whereabouts of funds. If there is no real transaction and the funds are not actually delivered, it may be a forged debt in an attempt to usurp property. There are traces of real debt, fake debt often can not withstand investigation, a pursuit of capital flow on the reveal.
Check the flow of funds
real debts should have traces of funds. Where the money goes, whether it goes into a joint account or for the family, is the key to judge. Money does not go into the family, not to live together, it is difficult to calculate common debt, creditors are difficult to prove that you benefit.
Whether 3. joint debt
judged by the three criteria of co-signing co-debt, daily needs of the family, and use for co-living and business. Large debts that are beyond daily and not used in common are generally not linked to you. These three criteria are firewalls that block most of the inexplicable debt and also draw the associated boundaries. Ningbo District Court holds the same caliber: if the amount of loan exceeds the daily needs of the family, the creditor must prove that it is used for the husband and wife to live together, produce and operate together or have a common intention, otherwise it will not be recognized as a common debt (according to the case of Cixi Court (2018) Zhejiang 0282 Minchu No. 7747 and Ningbo Intermediate People's Court (2019) Zhejiang
02Minzong No. 1524).
Uninformed and without benefit
if you have not signed, not ratified, and the debt is not used to live together, it usually does not constitute your joint debt, and the creditor claims it to himself. If you don't know, benefit, or sign, you're basically out of the joint and several, and you don't have to pay for each other's personal debt.
Response to recovery of 4.
If you are sued, you should actively prove that the debt is false or belongs to the other party, and the agreement on debt commitment in the divorce agreement is only valid within you, not of course against bona fide creditors. Don't be absent when responding to a lawsuit, the defense should fall on the evidence, and silence is tantamount to giving up the defense.
Debt clause in 5. agreement
the divorce agreement stipulates that each of the debts shall be borne separately, which is valid between the two parties, but does not of course bind the creditors externally. If it is a joint debt, the creditor may still demand repayment from either party; after performance by the party being recovered, it may recover from the other party in accordance with the agreement. The agreement can be distributed to the interior and cannot be blocked from the exterior, which is a blind spot that many people ignore.
External recovery may still be possible.
So the real line of defense is not the wording of the agreement, but the bottom line of the debt before the divorce. Have the other party confirm in writing that there are no other external liabilities and retain that written material for future recovery. Written confirmation is much more useful than verbal assurance, and is also a sharp weapon for recovery.
6. to find out the debt base before divorce.
More stable than the defense after the fact, is to find out the debt before the divorce: require the other party to list all external liabilities and confirm in writing, check the credit report, bank loans and common account flow, pay attention to whether there is a sudden new large amount of IOU. The bottom line is clear, the agreement can write the debt boundary to death, but also to avoid being caught off guard after the divorce. When conditions permit, the other party may also be asked to sign a debt confirmation and annex it to the agreement, specifying the list of known liabilities and concealment responsibilities, leaving the most direct evidence for future recovery. This step takes much less time than the cost of responding to lawsuits in the future, and is the most cost-effective prevention.
Written confirmation is better than oral assurance
verbally saying "I have no foreign debt" is not binding. Let the other party confirm the known liabilities one by one in the agreement, promise no other concealment, and agree to conceal the consequences of default of the debt, when later recovered, this confirmation is to the other party back to recover the sharp weapon. Even if you still need to repay the external joint and several, this written confirmation will allow you to smoothly recover from the other party after the compensation, and transfer the internal costs of external joint and several, so as not to lose money. Digesting uncertainty before divorce is more practical and less implicated than litigating after divorce.
7. case proof
according to the cases of Cixi Court (2018) Zhejiang 0282 Minchu No. 7747 and Ningbo Intermediate People's Court (2019) Zhejiang 02 Minzong No. 1524, if the amount of loan exceeds the daily needs of the family, the creditor must prove that it is used for the husband and wife to live together, produce and operate together or have a common intention, otherwise it will not be recognized as the joint debt of the husband and wife-corresponding to the judgment of "no signature, no benefit and no joint.
According to the Ningbo Intermediate People's Court "to the case" "Divorced," how to calculate the "account"? "(2014-08-05): during the marriage loan, the other party's knowledge and for the family to live together, can be identified as a joint debt of husband and wife; the debt agreement in the divorce agreement is invalid for the third party, but after one party's external performance, can be recovered from the other party according to the agreement.
It is on the basis of the above-mentioned caliber that the Ningbo Court discriminates common debts: for debts that are not co-signed and not used for living together, the borrower is sentenced to bear the debt personally; for loans used for family living together, the two parties are ordered to repay jointly and severally (source: the judgment of the Ningbo Court included in the Marriage and Family Knowledge Base and the open case of the Ningbo Intermediate Court).
8. Risk Alert
- panic to recognize the inexplicable debt.
- Do not check the authenticity of funds.
- The misconception that the agreement will block creditors.
- Ignore Unsigned No Benefit.
- Embezzlement of property by fraudulent debt.
- Didn't figure out the debt base before the divorce.
9. FAQ
do you want to pay off debts after divorce?
Not necessarily. First look at whether it is true, whether it is a common debt.
How to judge jointly?
See co-sign, family daily needs or for co-living business.
Is it useful to agree to write debts to him?
Internal effective, not of course against bona fide creditors.
What about being sued?
The proof debt is false or belongs to the other person, and actively responds to the lawsuit.
Practical Experience of 10. Lawyers
after the divorce suddenly appeared a "common debt in marriage", said that the borrowed money to you to pay back, the most taboo is to panic God first admitted. A creditor or ex-spouse unilaterally says that you have a debt, which does not mean that you really have to bear it. The key depends on whether the debt is real and whether it is used to live or operate together. There are usually three criteria for judging joint debt: whether there is a common meaning such as a joint signature or ex post ratification, whether it is necessary for the daily life of the family, and whether large debts beyond the daily life are used for living or operating together. If you have not signed, not ratified, and the debt is not used to live together, it generally does not constitute your common debt and should be borne by the borrowing party. Also remember that the divorce agreement "each debt to each other" is only valid between the two of you, the external can not stop the bona fide creditors.
To deal with it, the first step is to identify the truth and not to rush to recognize it. Let the other party or creditor take out the loan contract, transfer voucher, and then chase the flow of funds: whether the money was actually delivered, whether it went into the common account, whether it was used for the family. If there is no real transaction and the funds are not actually delivered, it is likely that the fictitious debt is an attempt to encroach on common property, and the flow of money is revealed as soon as it is pursued. The second step is to put the defense on these three criteria: whether you know it or not, whether you have signed or ratified it, the nature and use of the money, and organize evidence around transfer records, chat records and family expenses-if the large amount of debt exceeds the daily needs of the family and has nothing to do with you, the creditor must prove that it is used for common life or business, otherwise it is difficult to identify it. The third step, if prosecuted, do not be absent, silence is tantamount to giving up the defense.
Instead of responding to the lawsuit afterwards, it is better to check in advance. It is the most cost-effective prevention to find out the debts before divorce: the other party is required to list all the external debts in writing and sign for confirmation, check the credit report, bank loan and common account flow, pay attention to whether there are any sudden large IOUs, take the list of known debts as the annex to the agreement, specify the concealment responsibility, and then have the most direct proof when recovering in the future. Verbal assurance cannot replace written confirmation, which is where many people have suffered losses. In the case of suspected fictitious debt, it is also necessary to fix the evidence and keep clues as soon as possible, and don't wait for the evidence to be lost before you think of checking it. If you put the three steps of "distinguishing the truth from the false, looking at the use, and leaving the writing" in place, even if a debt of unknown origin comes up one day, you will not be beaten passively.