Insights

Can Ningbo apply for freezing each other's accounts before divorce?

Ningbo Author：LuXu WANG

The fear that the other party will turn the money empty during the lawsuit is the reason why many people are dragging their way and dare not sue. The law gives a response tool, that is, property preservation. It does not want to freeze can be frozen, but as long as the material in place, the efficiency is often higher than imagined.

The legal basis for the preservation of 1. property.

If the conduct of one of the parties or other reasons may make it difficult to enforce the judgment, the people's court may, on the application of the other party, order the preservation of his property. In a divorce case, if one party has signs of transfer, the other party has the factual basis for the application.

To have the risk of being difficult to execute

fear alone is not enough. Specific clues such as recent unusually large transfers, property listings for sale, and vehicle transfers are the basis for the court's decision to preserve them.

2. pre-litigation preservation and litigation preservation.

If the situation is urgent, you may apply for preservation before filing a lawsuit, but you must file a lawsuit within the statutory time limit after the court has taken protective measures. If you fail to file a lawsuit within the time limit, the court shall lift the preservation. If a lawsuit has already been filed, an application may be made at any time during the proceedings.

Pre-litigation preservation time limit is very tight

after the pre-litigation preservation, the lawsuit must be filed within 30 days, otherwise all previous efforts will be wasted. Before choosing this path, the indictment and evidence materials should have been prepared.

What guarantees should 3. provide?

Where preservation is applied for, the court may order the provision of security, which is usually equivalent to the amount of the request for preservation. The forms of guarantee include physical guarantees such as cash and real estate, as well as letters of guarantee issued by insurance companies or guarantee companies, which are cheaper and faster to process.

Insufficient guarantee will be rejected

security is a key threshold for preservation applications. Contact the preservation guarantee institution in advance and confirm that the guarantee can be accepted by the court of acceptance, which can avoid getting stuck in this step.

What property can 4. preserve?

Bank deposits, real estate, vehicles, equity, fund shares, and accounts receivable are all within the scope of preservation. In the case of preservation of deposits, it is necessary to provide bank information or account clues; in the case of preservation of real estate, it is necessary to provide ownership information. The more specific the clue, the faster the execution.

Not all clues can be applied for inquiry.

If it is really impossible to obtain account information on its own, it may state in the application and request the court to check and control ex officio, and cover the major banks through the network execution check and control system. Ningbo's grass-roots courts can initiate inquiries through the system after filing a case, but if the applicant can provide clues to the bank or account number, the implementation of investigation, control and freezing will be significantly accelerated.

5. application is wrong and compensation is required.

Preservation is a double-edged sword. If the application is wrong and causes losses to the respondent, the applicant shall compensate. Therefore, it is not appropriate to arbitrarily expand the scope of preservation for the sake of pressure, especially when it comes to the other party's operating accounts.

There are also procedures for lifting security.

If the respondent provides an equal amount of security, the court shall lift the preservation. Therefore, the preservation is not frozen to the end, the other party can restore the liquidity of the property through counter-guarantee, which should be expected when assessing the effect of the preservation.

Duration and renewal of 6. preservation

preservation measures have a statutory time limit: the freezing of deposits and other funds generally does not exceed one year, the seizure of movable property does not exceed two years, and the seizure of immovable property and rights does not exceed three years. It is necessary to apply for renewal before the expiration of the time limit, otherwise the measures will automatically expire. If the trial period of the case is long, the renewal time must be marked on the calendar.

1. Expiration is equal to white freezing

in practice, it is not uncommon for property to be disposed of as a result of forgetting to apply for renewal of preservation. When filing a case, it is safest to keep a diary of the expiration date and prepare a renewal application one month in advance.

2. How to write the application for preservation

the application shall state the identity information of the respondent, the type and amount of property requested for preservation, the reasons and factual basis for preservation, and attach evidence to support the risk of difficult enforcement. The more specific the property clue part, the better. It can directly improve the efficiency of the ruling and execution by stating the opening bank, the location of the house and the license plate of the vehicle. It is often necessary to make up for the general request to preserve the property under its name.

7. case proof

in practice, one party submitted the other party within the past 1 month to transfer a large amount of about 1.2 million yuan of running water after the application for the preservation of the whole, the court ruled on the same day to freeze the corresponding amount of deposits, to avoid the subsequent implementation of the failure.

In practice, in another case, the applicant failed to provide any clues to the transfer and applied for preservation on the sole grounds of concern, which the court did not grant.

In practice, the applicant submits detailed clues about the location of the bank and the house and evidence of the transfer, and the court makes a preservation ruling on the same day and completes the investigation and control within 3 days; the deposit freeze period is 1 year, the real estate seizure period is 3 years, and it is necessary to apply for renewal before expiration.

According to the divorce dispute between Chang and Meng in Ningbo Jiangbei Court, one party claimed that the other party transferred the property, but the court did not accept it due to insufficient evidence-Ningbo Court's claim on the transfer of property is also based on evidence, and the fixed large transfer flow and ownership change record in the preservation stage are more important than the oral claim afterwards.

8. Risk Alert

  • only worry there is no concrete diversion clue.
  • The overdue prosecution was discharged after the pre-litigation preservation.
  • The failure to secure the guarantee resulted in the rejection of the application.
  • The scope of preservation clearly exceeds the amount of the claim.
  • Freezing the other party's operating account raises the risk of compensation.

9. FAQ

can accounts be frozen before prosecution?

You can apply for pre-litigation preservation, but you must sue within 30 days after the court takes measures, otherwise it will be lifted.

Do I have to guarantee to apply for preservation?

The court usually orders the provision of security, which may be in cash, in kind or by guarantee company.

I don't know what to do with each other's account number?

The application may state and request the court to inquire through the enforcement control system.

What are the consequences if the security is wrong?

If an error in the application causes losses to the other party, the applicant shall be liable for compensation.

Can the other party unfreeze it?

You can. If the respondent provides an equal amount of security, the court shall lift the protective measures.

How long can the freeze last?

Deposit freeze is generally not more than one year, real estate seizure is not more than three years, before the expiration of the need to apply for renewal.

Practical Experience of 10. Lawyers

worrying that the other party will turn the money empty during the lawsuit is the reason why many people dare not sue, and the law gives the corresponding tool, that is, property preservation. It does not want to freeze can be frozen, but as long as the material in place, the efficiency is often higher than imagined. It should be noted that simply "I am very worried" does not constitute a reason for the application. What the court wants to see is whether there are risks that make it difficult to enforce the judgment in the future, such as the recent occurrence of abnormally large transfers, the urgent listing of real estate for sale, and frequent changes in the company's assets.

Preservation can be applied for pre-litigation or in litigation, with differences in the degree of time urgency and security requirements. There are three broad categories of things to prepare: clues to the other party's property, including accounts, property, vehicles, and equity; evidence of signs of transfer, the more specific the better, and vague guesses are difficult to pass; and guarantees, which can be cash, guarantees, or property. If the application is wrong, you will be liable for compensation, so the clues should be as accurate as possible, and don't apply with the mentality of "it's no harm to freeze a little more.

Timing is the key to preservation, and it is often necessary to act before formal prosecution, because once the other party detects it, it may quickly transfer the money away. Also remember that there is a time limit for preservation, and you should apply for renewal in time before the expiration. Don't think that freezing can be done once and for all. At the negotiation level, after the account or property is preserved, it is often the turning point of the other party's attitude to soften, at which point the negotiation can be pushed forward. However, do not abuse preservation as a tool of punishment or deterrence. Excessive application may bring compensation risk to yourself.