Who owns the income during Ningbo's separation

moved out for a few years and each earned his own money. Many people default that the income during this period is their own. This notion is not legally sound—wages, bonuses, and business income acquired during the marriage remain, in principle, marital property and are not affected by separation; the consequences of this misunderstanding often become apparent only at the time of property division. First to the conclusion: separation changes the state of residence, not the rules of property, and the only safe way to make the income after separation belong to each other is to sign a written marital property agreement, relying on "time" and "separation" itself to cut the common property relationship.

1. legal basis: property characterization depends on "the existence of the relationship", not "whether to live together"

Article 1062 of the the People's Republic of China Civil Code stipulates that the wages, bonuses, remuneration for labor services, income from production, operation and investment, income from intellectual property rights, inherited or donated property (except those determined to belong to only one party in the will or gift contract) earned by the husband and wife during the existence of the marriage relationship are the joint property of the husband and wife and belong to the husband and wife. Article 1063 stipulates that one party's premarital property, compensation or compensation for personal injury received by one party, property determined in a will or gift contract to belong only to one party, and daily necessities for the exclusive use of one party are personal property.

The key lies in the time coordinate of "the duration of marriage relationship": it starts from the date of marriage registration (or the date of establishment of de facto marriage) to the date of divorce registration or the date of divorce judgment. Separation is only the separation of residence and common life. As long as there is no divorce procedure, this time period will still fall within the "duration. The criterion for determining to whom a particular income belongs is the time it was earned, not whether the parties were living together or financially independent at the time of receipt. Therefore, wages and bonuses, operating income and investment income during the period of separation, in principle, all fall within the scope of common property.

Clarification of 2. Three High Frequency Misunderstandings

Misunderstanding 1: "separation is a factual divorce, each earning his own income". Legally, there are only two ways to dissolve a marriage: registration of divorce and judgment of divorce. No matter how long the separation is, it will not automatically terminate the marriage relationship, nor will it automatically switch to a separate property system. The so-called "de facto divorce" and "automatic divorce" are not legal concepts.

Misunderstanding 2: "After two years of separation, the income will belong to you". Article 1079, paragraph 3, paragraph 4, of the Civil Code stipulates that if the mediation is invalid due to emotional discord for two years, the divorce shall be granted-it solves the problem of "whether the divorce can be sentenced" and does not solve the problem of "who the property belongs". In practice, some people even mistakenly believe that after two years of separation, they will automatically divorce. As a result, one party remarries without authorization after years of separation, which constitutes bigamy and teaches a profound lesson.

Misconception 3: “During our separation, we practiced a ‘split-the-bills’ arrangement, so the court will determine contributions based on each of our incomes.” A “split-the-bill” arrangement is merely a mutual understanding between the parties; in the absence of a written agreement, the court will not, on the basis of the mere practice of each party paying their own expenses, deem that property belongs exclusively to each individual. For an agreement to have legal effect, it must be in the written form prescribed in Article 1,0

65of the Civil Code.

3. Property and investments acquired during separation: ownership is determined by the source of funds.

If you purchase the real estate with the income during the period of separation, since the fund itself belongs to the common property, the purchased real estate is also the common property in principle; if you want the real estate to be owned by the individual, there are only two ways: one is a written agreement between the two parties, and the other is to prove that the purchase capital is all from the personal property (such as pre-marital deposits, gifts or inherited property).

The traceability of the source of funds determines the success or failure of proof: directly transferring and paying from the personal account before marriage and keeping the complete certificate is the clearest way to advocate personal contribution; if the funds first enter the joint account and then transfer out of the house, or if the funds are paid after being mixed with the family income, the difficulty of proof will increase significantly, and the court usually treats them as common property. Similarly, financial products, equity interests, and business investments acquired during the period of separation in one’s individual name are assessed not by whose name they are held, but by the source of the funds and the extent to which they have been commingled. It is worth noting that even if a property acquired during marriage is registered solely in one spouse’s name, it does not alter its status as marital property. Attempting to “rush” and register the property in one’s own name during a period of separation will not change the ownership; on the contrary, such actions may be construed as concealment or transfer of assets, potentially resulting in a smaller share in the division of property.

4. debt is also determined according to the common rules

Property is common, and the rules of recognition of debt are not overridden by separation. Article 1064 of the Civil Code stipulates that the debts incurred by one spouse in the name of the individual for the daily needs of the family during the marriage relationship are joint debts of the husband and wife; debts that exceed the daily needs of the family are not in principle It belongs to a joint debt, unless the creditor can prove that it is used for the joint life of the husband and wife, joint production and operation, or based on the joint intention of both parties.

After separation, it is worth to subdivide two situations: first, the expenses for children's education, elderly medical care and so on, even during the period of separation, are often regarded as belonging to the scope of "family daily life needs", which may constitute common debts; second, the debts borne by one party for personal profligacy, gambling and investment failure after separation are generally regarded as personal debts because they have nothing to do with family life, however, creditors may still break through if they can prove that the money was actually used for joint production and operation (e. g. the pre-separation partnership is still in operation). For the separated party, the large amount of debt should not be signed with the other party as far as possible, so as to avoid being later regarded as a common debt; for creditors, the direction of proof should be "where the money is spent".

5. Stop-loss and protective measures during the separation period

The value of separation is to prove the breakdown of the relationship and provide a factual basis for the decision to divorce, rather than cutting off property in advance. There are four things you can do when you are temporarily unable to divorce:

1. Sign a written agreement on marital property (Article 1065 of the Civil Code): Make it clear that after separation, each person's income belongs to each person and each person's debt is borne by each person. This is the most effective way to turn "AA tacit agreement" into a legal arrangement. Any stage of marriage can be signed, not limited to before separation;
2. For large-amount income and the acquisition and use of separate accounts, retain supporting documentation to prevent commingling with marital/common property;
3. If it is found that the other party hides, transfers, sells, destroys or squanders the common property, or forges the common debt, according to Article 1066 of the Civil Code, it directly requests the division of the common property during the existence of the marriage relationship, and does not need to wait for divorce. In case of emergency, it can apply for property preservation at the same time;
4. Keep the evidence of separation -- the rental contract, the water and electricity records of independent residence, and the chat records of both parties confirming separation, which not only supports the decision of separation, but also restores the whereabouts of funds in property disputes. The same batch of materials can be filed according to time.

6. deduction example (example, fiction)

Example 1: Party A and Party B have been separated for three years due to emotional discord and worked separately. Party A advocates that the income of about 460000 yuan obtained after separation should be owned by individuals. In the absence of a written agreement, the court held that the income during the period was still the joint property of the husband and wife in accordance with Article 1062 of the Civil Code, and ruled that the two parties were equally divided-the fact of separation could not replace the property agreement.

Example 2: C and D signed a written agreement when they separated, and agreed that after that, their respective incomes would be owned by them, and the court dealt with about 320000 yuan of their respective incomes after separation according to the agreement, without making equal division -- the written agreement is the only safe way to change the legal property system.

Example 3: E During the separation period, the personal account was used to directly transfer the purchase of the vehicle and keep all the certificates. At the same time, the independent account flow continuously covering the whole separation period was submitted. The court determined that the purchase fund could be traced back to his personal property, and the vehicle was not included in the division of common property -- the source could be traced back to the key of personal property claim.

The Typical Form and Solution of 7. Property Mixing

The biggest enemy of claiming personal property during the separation period is mixing, and there are four forms of high incidence in practice: first, the income and expenditure of the common account-after separation, the original common account is still used to collect wages and pay expenses, and the funds are intertwined, and it is impossible to restore which one belongs to the individual afterwards; second, joint repayment-the real estate purchased before marriage or separation is continuously repaid by the common account or the other account, the repayment part during the separation period will be included in the joint repayment contribution, and the other party may claim compensation for the corresponding value-added in the event of divorce (refer to the joint repayment compensation rules in Article 78 of the Marriage and Family Code); Third, decoration and attachment-after separation, one party contributes to decorate the common property or adds a large amount of property under the other party's name, without written agreement, the court may deal with it according to joint contribution or unjust enrichment. Fourth, on behalf of the holding and the name-the separation of income to parents, relatives and friends on behalf of the holding, once the other party claims to be the transfer of hidden common property, the holding party must prove the source of funds, the risk of failure to prove a very high. The way to crack is not complicated: the separation is to open an account and receive and pay each other. It is really necessary to use the notes of the common account one by one and keep the explanation. The large amount of purchase goes through the whole process of personal account and keeps the vouchers-the more thorough the isolation is done, the smaller the qualitative dispute is.

8. Special treatment of inheritance and gifts acquired during the period of separation

The property inherited or donated by one party during the period of separation shall be presumed according to the common property first, but there are two kinds of exceptions: one is that the will or gift contract is clearly owned by only one party (the third item of Article 1063 of the Civil Code), for example, the elder's will states that the estate is inherited by one of the separated children, not his spouse; the second is that the inheritance begins before the separation (the decedent dies before marriage or separation) and the estate is divided and acquired during the separation, and the judgment node is the time when the inheritance begins rather than the actual acquisition time, but it must be proven and not confused. There are two operating points: first, if you receive inheritance matters during separation, check the will statement and inheritance documents in time, and handle unilateral registration according to the will for real estate, so as to avoid being regarded as gift conversion under the name of both parties; Second, if you accept the gift from your parents during separation and want to exclude the rights of your spouse, you must obtain a written statement of gift and indicate "gift only to xx individuals", only orally, the fact of separation cannot replace the express meaning of "designated individual", and gifts within marriage may still be recognized as common property.

9. Proof of the fact of separation and allocation of the burden of proof

Separation serves both as a ground for divorce on the basis of marital breakdown and as the temporal benchmark for determining the nature of property and debts; the allocation of the burden of proof in this context warrants separate clarification. The party who advocates the existence of the fact of separation (usually the party who wants to leave after two years of separation or claims property independence after separation) bears the burden of proof. The evidence chain is suggested to be built according to the three lines of "time and space communication": the time line is to use the starting and ending of the rental contract, the registration and cancellation records of the residence permit, and the independent water, electricity and gas bill to lock the starting and ending nodes; the space line uses the commuting records of the two places, the express delivery address, the attendance of the unit and the proof of residence to prove the separation of the actual residence. The communication line uses the chat records of both parties to confirm the separation and the separation agreement to fix the subjective elements of "emotional discord"-if the separation is only due to objective reasons such as working in different places and traveling, it cannot be used as the basis for emotional breakdown. The distribution of evidence in a property dispute is the opposite: the party claiming that a property belongs to an individual is responsible for proving the source of funds and isolation, and the party claiming that the debt is common (mostly creditors) is responsible for proving that it is used for family life or joint business. The rental contract and independent account flow formed during the separation period are often "one material for two purposes"-not only to prove the continuity of separation to support the separation, but also to restore the funds to support the property claim, according to the time to file a copy, be sure to keep the original and payment vouchers.

10. Frequently Asked Questions

Does the money earned after separation count as common property?

. The income earned during the marriage remains, in principle, common property, regardless of whether they live together or whether they spend their own expenses.

What's the use of being separated for two years?

It is one of the legal situations of granting divorce, which solves the problem of "whether or not to grant divorce", does not solve the property ownership, and will not automatically dissolve the marriage.

Who does the house bought during separation belong to?

In principle, the purchase with common property is still common property, unless there is a written agreement or it can be proved that the capital contribution is all derived from personal property.

How can each earn his own?

Entering into a written agreement regarding marital property and clearly specifying the allocation of debts is the only legally recognized and reliable approach.

Can the property be divided first without divorce?

Yes. If one party conceals, transfers, or squanders joint property, or fabricates joint debts, thereby seriously harming the interests of the joint property, the other party may, pursuant to Article 1066 of the Civil Code, request a division of the marital property during the marriage.

XI. Practical Insights from a Lawyer

Separation changes the status of residence, not the rules of property. Many people think that if they move out and earn their own income, their income will belong to them. However, the wages, bonuses and operating income obtained during the marriage relationship are still common property in principle and will not change due to separation. The only safe way to make the income after separation belong to each other is to sign a written marital property agreement, relying on "time" or "separation" itself to cut the common property relationship. The sooner this cognition is established, the less it will suffer at the moment of division.

In terms of operation, the two lines of "separation facts" and "property changes" are fixed first: residence certificate, rental contract and payment record are used to prove the separation status; bank records, real estate and investment records are used to lock the property acquired by each during the separation period. The purchase of real estate or investment during the period of separation, the attribution depends on the source of funds-the use of common funds is usually still common, with the use of personal funds to have the opportunity to claim personal ownership, so the source of funds is particularly critical. Debt is also determined by the same rules, don't think that after the separation of the party alone debt has nothing to do with you.

In terms of strategy, if you want the income after separation to belong to yourself, the most practical action is to propose to sign a marital property agreement as soon as possible, and write down the ownership of each income before and after the separation; if the other party refuses, you should be psychologically prepared, and don't acquiesce in the negotiation that "the income from separation is mine".At the same time, pay attention to stop loss and protection: avoid mixing personal funds with common funds during separation, and do not easily borrow large amounts in common name. Keep the clear boundaries of funds, is the real self-protection of this period of time.

What separation changes is the state of life, not the rules of property: the income, the real estate purchased and even the debts incurred during the separation period are still treated as the common debts of common property in principle. The only reliable way to truly achieve "each earning his own" is to sign a written marital property agreement, rather than relying on the natural formation of separation time. The sooner the arrangements are put on paper, the greater the initiative in future divisions.

Finally, a group of actions are summarized in the form of a list: from the first day of separation, four things are made into habits-income is put into personal accounts and kept in running water, bills and remarks are kept for large-sum expenditures, the common account only handles necessary family expenditures confirmed by both parties, and changes in large-sum properties such as real estate, vehicles, equity, etc. are timely marked and informed in writing to the other party; At the same time, the start and end of separation time, their respective income and income and income and income and expenditure, the children's expenses are recorded separately. If you find that the other party began to transfer property, surprise large consumption, do not wait for divorce, timely fixed water and consider the marital division of the lawsuit and property preservation. The law does not reward the tacit understanding of "each passing his own way", but only recognizes the written agreement and the evidence that can be retained-the longer the separation, the more important the books and vouchers, which are the only "time witnesses" that can be obtained in the final division ".