Can the creditor's rights of Ningbo's divorce be claimed?

After several years of going through the formalities, I suddenly found that a loan had not been taken into account. This kind of situation is not completely without opportunity. The law leaves a special channel, but there are requirements for time and evidence.

1. missing property may be divided again

if, after the divorce, it is found that the joint property of the husband and wife has not been disposed of, the parties may file a lawsuit with the people's court to request another division. This is an independent claim, not subject to the original divorce case has been concluded.

No need to overturn the original judgment

the re-division is aimed at the part of the property that has not been processed, and the content that has been processed in the original judgment will not be affected. This makes it much lower than the threshold for applying for retrial.

2. claims are also common property

the external claims formed during the existence of the marriage relationship shall be part of the joint property of the husband and wife. Only the name of one party is written on the debit note, which does not affect the common rights of the other party. If it is not dealt with at the time of divorce, it can also request another division.

To prove the common source of funds

the claim needs to state that the loan comes from common property, and the correspondence between the bank flow and the time of formation of the debit note is the core evidence.

Time limit for the exercise of 3. claims

such claims are also subject to a statute of limitations, which usually runs from the date on which the parties knew or should have known that their rights had been impaired. Long-term non-assertion after discovery of clues may face a defense of limitation, so it is advisable to do so sooner rather than later.

Day of discovery is a key node

it is important to fix the time of discovery, such as the time of receipt of the debtor's notice of repayment and the time of finding the relevant documents, which can provide a basis for the commencement of the statute of limitations.

What evidence 4. need to prepare

the core is three categories: the loan or contract that proves the existence of the claim, the flow of the loan funds from the common property, and the original divorce agreement or judgment that the claim was not processed at the time of divorce. Only when the three are complete can the proposition stand.

The trial white paper of Ningbo local court also suggests that electronic evidence such as WeChat chat records has many defects in proof and is difficult to accept (according to Yinzhou Court's "White Paper on Trial of Marriage and Family Cases (2019-2021)"). The original IOU, bank flow and other documentary evidence should be taken as the core, and electronic records should only be used as auxiliary evidence.

The contents of the original agreement shall be checked one by one.

Some divorce agreements have a bottom-up clause that other property belongs to each party. Such expressions may affect the judgment of whether it constitutes a leakage of points. It is important to compare them one by one before prosecution.

Difference between 5. and retrial

the lawsuit for re-division is aimed at the property that was not disposed of at that time, and a separate lawsuit can be filed. The retrial is aimed at the error of the original judgment itself, with strict conditions and shorter time limit. The two paths are different, and choosing the wrong one will take many detours.

Check the original book before deciding.

Before filing a lawsuit, it is necessary to obtain the original divorce judgment, mediation document or agreement, and check whether there is a general handling clause one by one. This step does not take much time, but it can avoid directional errors.

What 6. claims can no longer be realized?

If the claim is already difficult to achieve due to the debtor's loss, bankruptcy, etc., the practical significance of the re-division will have to be reassessed. In such cases, consideration may be given to claiming a proportionate share of the loss, or to requesting that the right of recourse be expressly vested in one party and that it be recovered on its own. It is unfair to both parties to divide uncollectible claims simply 50-

50at face value.

1. More realistic by realizable value

the carrying amount of the claim is often very different from the actual recoverable amount. Negotiating on the basis of realizable value is easier to reach than entangling face value.

2. Check whether there are other omissions

since you want to start the lawsuit of division again, don't just stare at the one that has been discovered. It is recommended to check the provident fund, policy cash value, equity and other external claims at the same time, and sort out what can be claimed at one time to avoid repeated prosecution and payment in the future.

Ningbo local data also confirms this point: more than 99% of divorce cases involve property division, and the type of property has been extended to provident fund, policy cash value and even virtual property (according to Yinzhou Court's White Paper on Marriage and Family Case Trial (2019-2021)). Don't just focus on deposits and real estate when checking omissions.

7. case proof

in practice, after one party divorced, it was found that there was an outstanding external loan claim of about 430000 yuan during the period of existence, and filed a lawsuit for re-division and submitted a debit note and loan flow. The court supported it and decided to divide it equally.

In practice, in another case, the original divorce agreement contained a clause that other property belonged to each party, and the court found that the claim of about 310000 yuan involved had been dealt with in summary and did not support the re-division.

In practice, when the parties filed the lawsuit for re-division, they also claimed that the previously omitted provident fund was about 75000 yuan and the cash value of the policy was about 60000 yuan. The court tried the case together, and the whole case was processed in one lump sum in about 5 months.

8. Risk Alert

• after the discovery of long-term shelving face the defense of limitation.
• Ignore the bottom line clause in the original agreement.
• It is not possible to prove that the loan funds are derived from common property.
• Mistake another division as an application for retrial.
• The original IOU is missing and has no other supporting evidence.

9. FAQ

can the property that was missed after divorce be divided?

You can. The parties may sue separately for a further division of the unprocessed common property.

Is the money borrowed common property?

If the joint property is lent during the existence of the marriage relationship, the creditor's rights belong to the joint property.

Is there a time limit?

There is. It is subject to the statute of limitations and counts from the time when it knew or should have known that the right was impaired.

What's the difference with applying for a retrial?

Re-division of the outstanding property, a separate prosecution can be.

What to do first before prosecution?

Take the original divorce document and check item by item whether there are any other general clauses that belong to each party.

Can't the creditor's rights be collected and divided?

It may be negotiated to be treated at realizable value, or it may be clear that recourse is vested in one party's own recourse.

Practical Experience of 10. Lawyers

after completing the formalities for several years, it suddenly occurred to me that there was still a loan that had not been taken into account. This was not a complete lack of opportunity. The external claim formed during the marriage belongs to the joint property of the husband and wife, and even if only one person's name is written on the debit note, it does not affect its nature as joint property. This part that was not dealt with at the time of divorce can be claimed through an independent request for re-division, without having to overturn the original judgment that has already taken effect, and the threshold is much lower than applying for a retrial. Note that it is only aimed at the unprocessed part of the property, and the processed content will not be affected.

The real threshold is in time and evidence. Re-division usually has a three-year statute of limitations, generally from the time you know or should have known the existence of the claim, the longer the delay, the more passive, so once you think of it as soon as possible to verify, as soon as possible to claim. In terms of evidence, IOUs, transfer vouchers, collection records, and debtor's identity information are indispensable, especially the collection traces that are still within the statute of limitations, which not only prove the true existence of the creditor's rights, but also affect whether the money can be returned. After a long delay, the evidence will disperse and the time limit will pass. As soon as there is a clue, we should start work.

If it is found that the debtor is no longer able to repay or his whereabouts are unknown, the claim is in fact difficult to realize, and do not give up the claim within the family-it can be used to explain the responsibility of the other party in the division, or the corresponding consequences of the hidden claim, but do not spend all your energy on an account that cannot be recovered. When dealing with such issues, the value and enforceability of the claim itself is judged before deciding whether to pursue the debt directly or to claim the right internally. If you choose the right direction, you won't waste your energy on an empty account.