Some Easily Ignored Property in Divorce in Ningbo
Divorce talks about property, many people only stare at the house, car and deposit, only to find that a large piece is missing after signing. Article 1062 of the Civil Code stipulates that the scope of the joint property of husband and wife is much wider than intuition, and the provident fund, policy cash value, options, intellectual property proceeds and even some virtual property acquired during marriage may enter the scope of division. This article is explained one by one according to the most easily overlooked categories.
1. Provident Fund and Pension Account
the housing subsidies, housing provident funds, and the part of the pension insurance that are actually obtained or should be obtained during the existence of the marriage relationship are the joint property of the husband and wife and can be divided in the event of divorce. The difficulty is that the account information is mostly in the hands of one party, and the passive party often does not know the balance. It is recommended to actively apply for the withdrawal of deposit details in negotiation or litigation, and calculate the divisible share based on the accumulated amount after marriage, rather than just looking at the current visible balance.
To actively apply for details
provident fund centers and social security institutions can check the deposit and balance according to the procedures. If you are unable to obtain it yourself, you can ask a lawyer to apply for an investigation order or request a court call. Don't "believe as much as the other party says", the official details should prevail.
Cash value of 2. policy
the cash value of a policy paid for by the insured with the joint property of the husband and wife during the marriage is the conversion of the joint property and may be included in the division in the event of divorce. This is often misunderstood: some people think that "insurance is the division of personal property", but with common property insurance, the cash value is still common property. It should be noted that the cash value of participating and whole life insurance is higher, while the cash value of consumer short-term insurance is very low or even zero, and the focus of the division is on the former.
Don't just stare at dividend-paying policies.
In addition to dividends and lifetime life, annuity insurance and increased lifetime cash value are also worthy of attention. In practice, it is not uncommon for a party to take out a large amount of insurance in marriage to "transfer" the property, and the passive party may claim that the act harms the interests of the common property and demand the division of the cash value or the return of the corresponding share.
3. unexpired bonuses and options
bonuses obtained after marriage, year-end bonuses, and the portion of equity incentives (options, restricted stock) that are vested after marriage are, in principle, common property. The point of judgment is "right acquisition" rather than "payment": if the assessment cycle is in marriage and the conditions are achieved in marriage, even if the payment is made after divorce, it may still be recognized as marital rights and interests. In other words, look at the assessment cycle, not the delivery time.
Look at the assessment cycle, not the distribution time.
If the option has met the vesting conditions during the marriage, the passive party can still claim the corresponding share only because of the installment unlocking and the account after the divorce. It is suggested that the other party be required to disclose all unexercised incentive and unlocking arrangements at the inventory stage to avoid the omission of rights and interests that "surface" after divorce.
4. intellectual property proceeds
the proceeds of intellectual property rights (remuneration, licensing fees, remuneration for the implementation of patents, etc.) actually acquired or expressly available after marriage are common property. The key is "available"-those that have been signed but not paid, authorized but not settled. If one party is the creator, the passive party needs to know about the project under research, the signed contract and the progress of the payment, and such hidden benefits are most likely to be lost in neglect.
Signed but not paid
the proceeds of intellectual property rights are not based on the sole criterion of "money to account", and if a licensing contract has been concluded and the claim has been determined, it is within the scope of division. It is recommended to keep the contract copy and repayment node as the splitting basis.
5. external claims and loans
the claims enjoyed by one of the parties to the marriage and the money lent to others are common property and shall be dealt with together in the event of divorce. Virtual property can also not be missed: online stores, game accounts, digital currencies, platform rights and interests, etc. have a certain value, can also be used as a property subject assessment division. This type of property is highly hidden and needs to be actively inquired and disclosed during the inventory phase.
1. Virtual property also don't leak
online store management rights, high-value accounts, and digital assets have entered the scope of segmentation many times in practice. If one party operates from the media or e-commerce, the passive party should be required to disclose the account subject, income and binding relationship, to avoid "see no points".
2. There are remedial channels for finding omissions.
If it is discovered after divorce that the property has not been divided in marriage, it may still be sued separately to request the division, and is not subject to the misunderstanding of "settlement after divorce. According to the rules of the class case, if it is found that there is still undivided common property after three years of divorce, it can still apply for division. If the other party has hidden or transferred, it can also claim less or no division according to Article 10
92of the Civil Code.
How to do an inventory before 6. segmentation
before discussing the plan, both parties should make a systematic inventory: list the real estate, deposits, equity, insurance policies, provident funds, creditor's rights, incentives, virtual property and debts, and unify the valuation time point. Inconsistencies in valuation timing can cause two prices for the same property, sowing controversy.
1. Make a list before talking about the plan
there is no "approximate score" of the list, which is the most likely to be missed. It is much safer to suggest that a summary table be used to spread out all assets and debts, and then to talk about attribution and compensation item by item, than to negotiate verbally.
2. Uniform timing of valuation
property, equity, insurance policies, etc. fluctuate with the market, the valuation point should be unified to a certain day (such as the date of prosecution or judgment), to avoid one side with a high point, one side with a low point. The unity of time is the premise of fair division.
7. case proof
according to the rules of the same kind of judgment: three years after the divorce, one party found that there was still an undivided cash value of wealth management insurance and external claims in the marriage, sued the court to request the division, the court found that the common property in marriage did not exceed the statute of limitations, ordered the division of the corresponding share.
According to the rules of the same kind of judgment: one party in the marriage with the common property for himself to insure a large amount of annuation insurance, divorce did not disclose, the other party after the fact to verify the claim, the court found that the insurance behavior derogated from the common property, ordered the cash value as the basis to confirm the share of compensation.
8. Risk Alert
first, "insurance does not divide" and "bonus does not count" is a common misunderstanding, cash value and marital ownership incentives can be divided. Second, virtual property and external claims are highly concealed, and it is easy to omit without active disclosure. Third, inconsistent valuation timing will create new disputes and should be agreed in advance. Fourth, after the divorce found hidden transfer, there is still a remedy and punitive separation channel, do not have to give up.
9. FAQ
can the provident fund be divided?
Can. The common property of housing accumulation metal actually acquired or due after marriage shall be divided on the basis of the accumulated amount after marriage, and the share may be calculated after the details are obtained by procedure.
What can insurance be divided?
The cash value is divided, not the premium paid or the amount of insurance. If the common property is insured within marriage, the cash value is the conversion of common property and can be included in the division.
What about the bonus after the divorce?
Look at the point at which rights are acquired. If the assessment cycle and attribution conditions are achieved within marriage, even if they are issued after divorce, they may still be recognized as marital rights and interests and divided.
Can the missing property be divided?
Can. If, after divorce, it is found that the common property has not been divided within the marriage, a separate application may be filed for division; if the other party hides or transfers, it may also claim less or no division.
Can virtual property be divided?
Valuable online stores, account numbers, digital assets, etc. can be divided as property targets. It is suggested that the divorce inventory stage should be disclosed voluntarily to avoid disputes after the event.
How to systematically inventory property?
Use a summary table to list real estate, deposits, equity, policies, provident funds, claims, incentives, virtual property and debt, and discuss attribution and compensation item by item after unifying the valuation point.
10. operational steps
the first step is to make a full asset list, covering real estate, deposits, equity, policies, provident funds, claims, incentives, virtual property and debt. The second step is to obtain the official details of the application for provident fund, social security and insurance policy, not based on the oral number of the other party. The third step is to unify the valuation point to avoid high and low differences. The fourth step is to require the other party to disclose the unexercised incentive and the proceeds of the intellectual property under research. The fifth step, found missing or hidden, timely consultation with a lawyer to start the supplementary division or punitive division procedures.
Eleven, lawyers actual combat experience
when talking about property, you can't just focus on houses, cars and deposits. The missing piece is often the most valuable. The most overlooked categories include the portion of the provident fund and pension insurance that is paid after marriage, the cash value of the policy, bonuses and options that have not yet expired, proceeds from intellectual property rights, and claims on external loans. The first step is to do a thorough inventory, find out the carrier of each type of property, and see who has it and in what form it exists. It can be written down item by item according to "whose name, in which organization, and whether it can be found.
After counting, the clues should be fixed class by class. Provident funds and social security can apply for deposit details, policies to get insurance contracts, payment records and cash value statements, options and bonuses to have grant documents and payment conditions, claims to have IOUs, transfers and repayment records. Try to get the original voucher for each item, not just an approximate number. A lot of this information is in the hands of one party. Don't expect the other party to take the initiative to explain it. Those who should be investigated by lawyers should be investigated by lawyers. Those who should apply to the court will apply as soon as possible. The more delayed they are, the more difficult it will be to check.
After counting, it will fall on the claim: if the division method can be determined, it will be clearly stated; if it cannot be determined at the moment, the evidence will be fixed first and the right to claim in the future will be reserved. In the negotiation, we should keep an eye on it, and don't show all the property cards at the time of negotiation, especially the assets such as options and creditor's rights that are easy to be cashed or transferred in advance. We should first make preservation and then sit down and talk. Complementing these items that are easily missed can often significantly change the final distribution pattern, which is more valuable than competing for RV deposits.