After the divorce in Ningbo, it was found that the missing property could be divided again.

After going through the formalities, I thought the dust was settled, but a few months later, I found that the former spouse still had a house, a financial management or a company's equity. This situation is not uncommon in Ningbo's family consultation. The first reaction of many people is that the formalities have been completed and what is done is done. In fact, the law reserves the entrance to re-division for this situation, and the success depends mainly on the determination of the nature of the property, the choice of the basis of the claim and the grasp of the statute of limitations.

1. the difference between missing property and hidden property.

The difference in legal consequences is obvious. Missing points means that both parties do not know or neglect to omit when dividing, and there is no malice subjectively; concealment is that one party knowingly does not declare or inform the existence of property, and has the intention to encroach on the other party's share. Distinguishing between the two directly affects the proportion of re-segmentation.

1. Missing property is divided according to the principle of equality.

In the case of a simple omission, the court usually deals with it in accordance with the general rules of the joint property of the husband and wife, and makes a relatively equal division of the missing part under the premise of taking care of the rights and interests of the children, the woman and the innocent party, and does not make punitive adjustments to either party.

2. Hidden property can be divided less or not.

Article 1092 of the the People's Republic of China Civil Code stipulates that if one of the spouses hides, transfers, sells, destroys, or squanders the joint property of the husband and wife, or forges the joint debt of the husband and wife in an attempt to embezzle the property of the other party, when the divorce divides the joint property of the husband and wife, The party can be divided less or no; after the divorce, if the other party discovers the above-mentioned behavior, it may bring a lawsuit to the people's court, and request.

Two Legal Paths for 2. to Request for Division Again

in practice, the choice of the basis of the claim at the time of prosecution will directly affect the direction of proof and the result of the division, which needs to be thought clearly before filing a case.

1. Path 1: Property Disputes After Divorce

applies to situations where the property does exist but has not been disposed of in the first place, without the need to prove that the other party is malicious. As long as the plaintiff proves that the property was acquired during the marriage, belongs to the common property and has not been divided, the difficulty of proof is relatively low, but it is difficult to obtain more than half of the share.

2. Path 2: Request to split again and claim less points

it applies to situations that can prove that the other party has hidden, transferred, etc. In addition to proving the existence of property, the plaintiff also needs to prove that the other party knowingly and intentionally did not declare at the time of divorce, such as the property declaration form was not filled in, the written promise that there was no other property, and the name of registration was deliberately changed. Ningbo Yinzhou Court has implemented a property declaration system for divorce proceedings (according to Ningbo Intermediate People's Court's 2014 "Innovative Reform Plan for the Trial of Family Cases"). Records of false declarations at the time of divorce can be used as evidence for concealment. If the proof is successful, you can ask the other party to score less or even no points.

When does the 3. three-year statute of limitations start?

Many people mistakenly think that after three years of divorce, there will be no chance at all. This is a misunderstanding of the statute of limitations. Article 188 of the Civil Code stipulates that the limitation period for requesting protection of civil rights from the people's court is three years, counting from the date when the obligee knows or should have known that the rights have been damaged and the obligor.

1. The starting point is the date of discovery, not the date of divorce.

Therefore, if the existence of undivided common property is discovered only after three years of divorce, the statute of limitations usually starts from the day after the discovery, not from the date of receipt of the divorce certificate or the effective date of the judgment. This is also the institutional reason why a divorce can still be sued after many years.

Objective judgments that should be known

it should be noted that this expression should be known. If the property status is already available through public channels, or if one party has already accessed relevant information through chat records, bills, etc., the court may determine that it should know, thus moving the starting point forward. Therefore, it is not advisable to wait and see for a long time after discovering clues.

The six most frequently missed categories of property in 4. practice

judging from the high-frequency types of family disputes, the following types of property are most likely to be ignored when dividing because they are not reflected in daily life. According to the Yinzhou Court's White Paper on the Trial of Marriage and Family Cases (2019-2021), more than 99% of divorce cases in Ningbo involve the division of property, and new types of property such as pets, game equipment and virtual currency continue to enter the scope of division, with an increase in the number of risk points of leakage.

1. Equity property outside the books

this includes year-end bonuses and performance that have not actually been paid, the cash value of commercial insurance that has not yet expired, the balance of corporate and occupational annuity accounts, the balance of housing provident fund accounts, unregistered equity interests, and options that have not yet been exercised. These interests are often invisible in divorce, but have a clear property value.

2. Physical assets registered in the name of another person.

Houses, vehicles, and shops registered in the name of parents, siblings, or close third parties can also be included in the division if they can prove that the purchase funds are derived from the joint property of the husband and wife and are actually used by one party. Such claims need to be supported by a complete chain of capital flows.

The method of obtaining and fixing 5. property clues.

The biggest obstacle to another division of litigation is not the application of the law, but the proof that the property actually exists. Since the two parties have dissolved their marriage, the plaintiff's access to each other's property information has been greatly narrowed.

1. Fixed clues before prosecution

before filing a lawsuit, you should try to fix the materials you can get on hand, such as bank statements during the marriage relationship, copies of house purchase contracts, policy numbers, company names and unified social credit codes, and property statements in chat records. The clue need not be complete, but must be specific enough to point to a specific subject.

2. Application for an investigation order after filing a case

after filing the case, you can apply to the people's court to issue an investigation order, and the attorney will go to the bank, real estate registration center, market supervision and management department, and insurance institution to obtain materials; the transaction records of the third-party payment platform usually need to be obtained by direct letter from the court. The name of the institution to be transferred, the account information and the time interval shall be stated in the application.

How the share is determined when the 6. is split again.

When determining the share, the court will also consider the nature of the property, the reason for the omission, the degree of fault of the parties, and the overall division result in the divorce.

1. The impact of the overall arrangement of the divorce agreement.

If the divorce agreement has stated that the property under the names of both parties belongs to each other and there is no other property dispute, the defendant will often defend it accordingly. At this point, the plaintiff needs to explain that the clause was signed on the premise that the other party concealed key information, otherwise the court may find that the parties have made an overall arrangement for the property.

2. Treatment of value added and fruits

from the date of divorce to the date of re-division, the subject property may experience a significant increase in value. For property with obvious fluctuations in value, such as houses and equity, the value at the time of prosecution or the valuation date is generally calculated; rent, interest and dividends generated during the occupation period may be claimed together.

7. case proof

in practice, after a few years of divorce by agreement between the two parties, one party accidentally learned that there was still a house purchased during marriage under the name of the former spouse when going through the children's enrollment procedures, so he filed a post-divorce property dispute lawsuit. The court found that the house was purchased with joint property during the marriage relationship, and the divorce agreement was not dealt with, and it was found that it belonged to the joint property of the husband and wife that had not been divided, and the judgment was divided in accordance with the principle of the two parties, and the market assessment value at the time of the prosecution was used as the basis for the calculation of the discount compensation. In similar cases, the amount of division or compensation is usually in the range of $100000 to $3 million, depending on the size of the property and the circumstances of the evidence.

In practice, one party in the divorce proceedings to fill out the property declaration form did not declare its holding of the company's equity, after the divorce, the other party through the industrial and commercial publicity information found that the equity was acquired within the marriage, the prosecution requested another division and claimed that the other party less. The court, taking into account the contents of the declaration form, the time of acquisition of the equity and the source of the capital contribution, found that it constituted a hidden joint property of the husband and wife, supported the request for re-division, and made an adverse treatment of the concealed party in the share, ordering it to pay the corresponding discount to the other party. In similar cases, the amount of division or compensation is usually in the range of $100000 to $3 million, depending on the size of the property and the circumstances of the evidence.

8. Risk Alert

• if you wait and see for a long time after discovering a clue, you may be deemed to know and move the time limit forward and lose the right to win.
• It is difficult for the court to issue an investigation order based on speculation and prosecution without any specific clues, and the case is easily dismissed due to insufficient evidence.
• The divorce agreement contains general clauses such as whether there are other property disputes or not, and if it fails to provide a specific explanation at the time of prosecution, it may be deemed that the overall arrangement has been made.
• If the other party continues to dispose of the subject property during the litigation and fails to apply for preservation at the same time, it may not be able to actually execute it after winning the lawsuit.
• Illegal means to query the other party's account information, not only the evidence is invalid, but also may bear legal responsibility.

9. FAQ

divorce has been more than three years, can also sue for division?

You can. The statute of limitations runs from the date when the right was or should have been known to have been impaired, not from the date of the divorce. Where joint property that has not yet been divided is discovered after many years of divorce, three years are usually counted from the day following the day of discovery. However, those who do not advocate for a long time after discovery will face the defense of limitation.

The divorce agreement says that the property under their respective names belongs to them. Can they be divided again?

It depends on the specific situation. If the property is not known to both parties at the time of signing the agreement and is an missing property discovered after the fact, it can usually still be claimed to be divided, and if it can be proved that the other party deliberately concealed it at the time of signing, it can also be claimed to be divided or not divided.

What if we can't find each other's property?

First, sort out clues that can point to specific targets, such as bank name and account number, house location, company name, etc. After filing the case, apply to the court to issue an investigation order to be retrieved by a lawyer, or apply to the court to send a letter directly to the relevant agency. The more specific the clue, the more likely it is to get permission.

Can you get half of it again?

If it belongs to a simple omission, it is generally handled according to the principle of close to equality; if it can prove that the other party has hidden, transferred, etc., it may request that the party be divided less or not, and the actual share may be more than half. The specific proportion is determined by the court in the light of factors such as the degree of fault.

Practical Experience of 10. Lawyers

after going through the formalities, I thought it was over. It was only a few months later that I found out that the former spouse still had a house, financial management or equity under his name. In this case, the law left an opening. The key is to distinguish between two natures: omission is that both parties did not know or neglected at that time, and there was no malice subjectively; Concealment is that one party knowingly fails to declare and deliberately occupies the other party's share. This distinction directly affects how much can be divided-those who miss points are usually treated equally, while those who hide may allow the wrong party to score less or even no points. Therefore, after discovery, first judge which one it belongs to, and then decide the direction and strength of the claim.

Re-division is an independent claim, there is no need to overturn the original judgment, the threshold is much lower than applying for retrial. The most likely to be missed, often not on the face of the house and car, but deposit management, provident fund, company equity, insurance policies, external claims, as well as assets registered in the name of others. Check clues can be from the bank running water, industrial and commercial registration, real estate registration, social security provident fund several opening, can be fixed first fixed.

When it comes to the claim, how to determine the share depends on the nature of the property and the adequacy of your proof, so the preliminary investigation should be detailed, and it is better to check a few more clues than to step up the transfer after the other party notices. In particular, it is necessary to prevent the other party from continuing to dispose of it during the litigation period. If it can apply for preservation, it is necessary to apply for preservation and lock the disputed property first. I also remind myself that if you find an abnormality, you should calm down and collect evidence first, and don't startle the snake. Rashly confronting will often only lead to more thorough concealment and more difficult to chase. Once the property is transferred, even if the lawsuit is won, the execution may fail.