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Ningbo divorce company dividends, year-end bonus, commission how to divide

Ningbo Author：LuXu WANG

In Ningbo, the income structure is often more complicated than the payslip: foreign trade salesmen settle their annual commission according to the payback, which is often more than 100,000 to 200,000 yuan; Executives of listed companies also pay dividends on options, restricted stocks and shareholding platforms in addition to the year-end bonus; Shareholders of family businesses hang their profits with "other receivables" and collect payments with personal cards, with almost no "salary" on their books ". Once a divorce occurs, these incomes—“unattainable, indefinable, and concealable”—often become the most contentious issue.

To begin with the conclusion: Wages, bonuses, year-end awards, commissions, performance-based pay, corporate dividends, and equity incentive income that are actually acquired during the marriage, or that have been definitively determined to be acquirable during the marriage, are, in principle, marital joint property and shall, in principle, be divided equally upon divorce. The dispute has never been "divided", but three things-"time point" (work in marriage, money in marriage, how to calculate the corresponding part of marriage), "qualitative" (pre-marital equity after marriage to receive dividends, is common property or personal property fruits), "evidence" (by what to dig out the other party's hidden income). The following is clear with six true judgments.

1. First, let's look at the rules: whose money is this exactly?

Article 1062 of the Civil Code lists the joint property of husband and wife as five items: (1) wages, bonuses and remuneration for labor services; income from (II) production, operation and investment; income from (III) of intellectual property rights; property inherited or donated by (IV), except those owned by individuals according to law; (V) other property that should be jointly owned. To determine whether a particular income constitutes marital property, it suffices to consider two factors: whether the income was acquired during the marriage and whether it is derived from labor or investment. It does not change the nature of the registration in whose name or in what name it is issued.

1. Wages, bonuses, remuneration for labor services: least controversial

The actual monthly salary, overtime pay, quarterly bonus, allowance and performance bonus received during marriage are all common property, and the labor remuneration also includes part-time job, lecture fee and consulting fee. It is important to note that “received” does not equate to “earned”: the determining factor is when the labor corresponding to the right to income was performed, not when the money was credited to the account. Pre-marital wages and bonuses that were already determined prior to marriage are considered personal property.

2. Year-end bonus, commission and performance: the nature is labor remuneration, and the dispute is in the "corresponding period"

The year-end bonus belongs to "bonus", and the commission is settled according to the payback or the completion degree of the project, and the performance is distributed according to quarterly, semi-annual or annual assessment. The three are of the same nature, and they are all labor remuneration. The trouble is that the year-end bonus of the previous year is usually paid only in the following year. Due to the long collection period, the commission may not be paid until half a year after the divorce. At this time, it depends on where its corresponding business or assessment period falls, not on which day it is paid. The key evidence lies in the commission plan, settlement statements, payment records, and disbursement policy.

3. Company dividends: First consider the nature of the equity interest, then the date of acquisition.

Dividends are profits distributed to shareholders based on their equity holdings; essentially, they represent the returns from production, operations, and investments. After marriage, the equity acquired by the joint property of the husband and wife, no matter who is registered in the name, the dividend is the common property. The listing of profits as "other receivables", the long-term occupation of shareholder loans, and the replacement of dividends with reimbursements and subsidies do not change the common property attributes of dividends.

4. equity incentive: options, restricted stock and virtual restricted stock have their own caliber

This is the "invisible income" zone for executives of major Internet companies and listed companies. Options are the right to buy shares at an agreed price in the future; restricted shares are "vested" only after they meet the service period and performance conditions; virtual restricted shares (internal shares) can only enjoy dividends and appreciation and cannot be transferred. Marital grant, marital attribution is generally recognized as common property, marital grant, divorce after the attribution, the court usually does not directly divide in the divorce case, but after the attribution according to the "marriage period accounted for the proportion of the attribution (assessment) cycle" by the spouse separately claimed.

5. Exception:interest and natural appreciation remain personal property.

Article 26 of the Interpretation (I) on Marriage and Family of the Civil Code stipulates that the income generated by the personal property of one spouse after marriage, except for the fruits and natural appreciation, should be recognized as the joint property of the husband and wife. Personal property itself and its pure "fruits", natural value-added does not participate in the division, but as long as the incorporation of marital management, management, labor input, the income from the "natural value-added" into "active value-added", into the common property-this is the key to the pre-marital equity after the marriage dividend dispute.

| income type | nature | whether common property | | --- | --- | | | salary, bonus, labor remuneration | labor remuneration | joint property obtained within marriage | | year-end bonus, performance salary | bonus (labor remuneration) | joint property in the corresponding period within marriage | | commission | floating labor remuneration | joint property in the corresponding business period within marriage | | corporate dividends | Investment income | Dividends where equity is common property, I .e. common property; pre-marital equity post-marital dividends to see whether to participate in business | | equity incentives | labor remuneration and investment | marital grant or attribution as common property;

2. Year-end Award: What is the difference between supported and unsupported cases

The six judgments in the knowledge base just form a group of comparisons: the same claim that the year-end bonus, some according to points, some are directly rejected, the watershed is "whether it can be proved to exist, and it belongs to the marriage to determine that it can be obtained".

1. Four cases of support or partial support

If the amount of 1. and the fact of distribution can be found out, the score will be paid. Hunan Zhuzhou Lukou District Court (2021) Hunan 0221 Minchu No. 972 Case: The two parties divorced through court mediation in November 2020. The provident fund and year-end bonus were not handled together, and the woman filed a separate lawsuit. The court found out that the man's 2020 year-end bonus was 11000 yuan, of which 4000 yuan had been paid to the woman, and the balance of the man's provident fund on the day of divorce was 154868.08 yuan. Therefore, the court decided that the year-end bonus of 11000 yuan should be divided into half, namely 5500 yuan, and the paid 4000 yuan should be reduced. The man was sentenced to pay another year-end bonus of 1500 yuan and another half of the provident fund of 77434.04 yuan. As long as the amounts and disbursement facts are clearly verified, year-end bonuses can be distributed, and any portions already paid will not be counted again.

2. The name is changed to "Year-End Performance Bonus," and the distribution remains the same. Guizhou Renhuai City Court (2020) Case No. 173 of the 0382 Republic of China: Both parties agreed to divorce in December 2019. The agreement said that "both parties have no division of common property". Three months later, the woman filed a lawsuit. The court found out that the man received the 2019 year-end performance bonus of 65914.84 yuan in January 2020, the provident fund of 139896 yuan from January 2016 to December 2019, and the bank deposit of 214202.78 yuan as of December 2019 (of which the 110000 yuan wedding banquet gift was treated by the woman's 26000 yuan and the man's 84000 yuan). All three were recognized as the average division of common property, and the man was sentenced to pay the woman's 181006.81 yuan, of which the year-end performance award was about 330

00yuan.

If the 3. is distributed across the year or obtained after divorce, it can also be divided. Shanghai Pudong New Area Court (2018) Case No. 61772 of Shanghai 0115 Minchu: The woman and the man working in Huawei agreed to divorce in January 2018. Both parties verbally agreed to divide the dividend and bonus in 2017, but the man refused to divide it after receiving it. The court found out that the 2017 bonus (including TUP income) was 313027.5 yuan after tax, the 2017 equity dividend was 22985.5 yuan after marriage, and the internal equity valuation after marriage was 224186 yuan, totaling 560199 yuan, and sentenced the man to pay the woman 280000 yuan. The man claimed that "the shares of senior executives cannot be realized while they are in office, and the conditions for division have not been fulfilled", because Huawei's reply proved that the virtual restricted shares can be repurchased and cashed by the trade union, and the defense was not established. He asked for a deduction of 250000 yuan's consumer loan, which was also rejected because the divorce agreement had agreed that "there will be no common debts after marriage and the debts under their respective names will be borne separately.

4. the income is concealed, it can still be pursued after divorce. Beijing Chaoyang District Court (2018) Case No. 58148 of Beijing 0105 Minchu: Both parties agreed to divorce in December 2015. The woman later learned in the lawsuit of changing the dependency relationship that the man's annual income after tax during his work in Alibaba from September 2014 to November 2016 was as high as 1.2 million yuan (the man argued that it was exaggerated for the custody dispute). The court obtained the salary income and equity information from Taobao (China) Software Co., Ltd., found out that it had paid a year-end bonus of 130000 yuan and a 13-year salary of 31500 yuan in April 2016, and was awarded 8000 shares of Alibaba RSU, which actually belonged to 2000 shares, with a 6.7 exchange rate of 102 US dollars per share at the time of sale. The court found that the year-end bonus and 13 salary obtained in April 2016 belonged to "the amount determined to be obtained but not yet obtained at the time of divorce in 2015", and the 2015 bonus, 13 salary and equity belonged to the undivided common property obtained after divorce, and ordered the man to pay the woman 7444

65yuan.

2. Two types of situations that are not supported: both are lost in "cannot be proved"

The 1. cannot prove that the year-end bonus existed at the time of the divorce. Wancheng District Court of Nanyang City, Henan Province (2013) Wan Min Chu Zi No. 155 Case: After the two parties agreed to divorce in February 2011, the woman sued for dividing the missing provident fund of 74784.2 yuan and the year-end bonus of 32000 yuan. The court found out that the balance of the man's provident fund was 73102.2 yuan and ordered to pay half of the 36551.1 yuan. However, the court did not support the 32000 yuan year-end bonus because the woman failed to provide valid evidence of the existence of the bonus at the time of divorce, and the man's evidence showed that the actual bonus amount in that year was very small.

The 2. cannot prove that the other party obtained the year-end bonus after the divorce. Chongqing Nan 'an District Court (2020) Yu 0108 Minchu No. 10724 Case: The woman advocated the division of the man's 2018 year-end bonus. The man claimed that the unit had already canceled the year-end bonus. The court held that the woman did not show valid evidence to prove that the man did get the bonus after divorce and did not support it. The provident fund part of the case was supported.

3. Three Rules of Judgment

The first is that "existence" should be proved-first, the bonus should be proved to be real and the amount can be checked, otherwise the lawsuit will be lost; the second is that "acquisition" depends on the time point of rights-those that have been confirmed to be acquired at the time of divorce but are only delayed and belong to the undivided common property, which can be divided; the third is that "name" does not affect the nature-called year-end bonus, as long as it is labor remuneration, it is handled according to the same rules.

3. Housing Provident Fund: Why is it almost "universally supported"?

1. The basics involved in the provident fund are supported

Luo's case has a provident fund balance of 154868.08 yuan and is awarded half of 77434.04 yuan; Yu's case has a marital provident fund of 139896 yuan and half of 69948 yuan is included in 181006.81 yuan; Li's case has a provident fund balance of 73102.2 yuan and is awarded half of 36551.1 yuan; Yuan and Zhao's case have combined their provident funds and decided to compensate. As long as the documents are complete and the time is clear, the provident fund will hardly be rejected.

2. Rule basis and calculation method

Article 25 of the Interpretation (I) on Marriage and Family of the Civil Code clearly lists "housing subsidies and housing accumulation funds that both men and women actually obtain or should obtain" as "other properties that should be jointly owned". Therefore: Regardless of whether the contributions are made by the individual or the employer, and irrespective of whether the funds can be withdrawn at present, as long as the contribution period falls within the marriage, the funds are considered marital property; the key lies in determining the start and end dates. The calculation is usually halved by the account balance on the date of divorce. If both parties have provident funds, the newly added part of the marriage of the two will be merged and divided equally, and the more one party will make up the difference to the other party.

The algorithm of Chongqing Nan 'an District Court (2020) Yu 0108 Minchu No. 10724 case can be used as a template: the woman did not allocate provident fund 21811.31 yuan (28073.22 minus 6261.91) in marriage, and the man did not allocate 59450.62 yuan (59460.62 minus 10) in marriage, totaling 81261.93 yuan, each of which should be divided into 40630.965 yuan; the woman already has 21811.31 yuan in her account, so only the man needs to supplement 18819.655 yuan to her. The man's defense that "the provident fund is earmarked and cannot be realized" has not been adopted-even if the money cannot be withdrawn, the court will directly award the difference compensation instead of letting you "wait until you can withdraw it".

4. Hidden income and company dividends: the outcome hinges on the evidence presented.

1. Two Hard Rules in Case Handling Guidelines

One is that "wages are not divided after consumption". If the accumulated total amount of marital wages is equal to the income status, and there is no evidence to prove that there is surplus in addition to household expenses, the court will regard it as having been used for daily living expenses and will not divide it (for example, if the wages of nearly 20 years are calculated according to the base of pension insurance payment, it is presumed that they have been consumed except for the balance). Therefore, it is advocated that the division should not only report a total amount, but also fall to specific accounts and specific time points.

The second is "the bank flows according to the source and purpose of funds". Account funds belong to different kinds of things. The court may decide to divide the large amount, short-term expenses without reasonable explanation after mixing (in some cases, 800000 yuan may decide to pay the other party 400000 yuan after mixing); The party who manages each other after separation, whose income is obviously higher and has no evidence of consumption may be awarded compensation; If a large amount of money is transferred out before the lawsuit without reasonable use explanation, it may still be regarded as transfer. Conversely, funds that can prove to be unit reimbursement, parental gifts, pre-marital savings, and entrusted financial management can be eliminated from non-participation in the division.

2. Evidence list: which ones stay and which ones apply for transfer

  1. self-fixed: payslip, labor contract, year-end bonus issuance notice or assessment system, commission scheme and settlement statement, equity incentive award letter and ownership notice, work card; family large consumption, joint loan repayment, children's education expenditure voucher.
  2. Personal Tax APP Self-examination: Log in to the "Personal Income Tax" APP, click [Income Tax Details], or [Office & Check]-[Inquiry]-[Income Tax Details Inquiry] on the home page, select the tax year and income type, and you can check the declaration records of wages and salaries, labor remuneration, business income, etc. I can only access information pertaining to myself; information under the other party’s name must be obtained through a court-ordered investigation during litigation.
  3. Social security and provident fund: the deposit base reflects the income level, and I can inquire through Zhejiang office or provident fund center, while the other part needs to be retrieved; high-income earners will be capped and flattened, which should be used as a reference for the lower limit.
  4. Bank and third-party payment: My own transaction records can be printed independently; accounts under my spouse’s name must be obtained with an investigation order or through court-ordered inquiry. Focus on whether the entry cycle is stable, whether the payer is the employer, whether there is a significant mismatch with the declared income of large expenditures.
  5. Dividend and stock rights of the company: articles of association, register of shareholders, internal files of industry and commerce, resolution of dividend of shareholders' meeting, profit distribution plan, financial or audit report, and agreement of granting equity incentive; if the account book is controlled by one party, it shall apply to the court for access or judicial audit.

What 5. the other party conceals income

1. Article 1092 of the Civil Code: A share may be reduced or no share may be awarded.

If one of the spouses hides, transfers, sells, destroys or squanders the common property of the husband and wife, or falsifies the common debt of the husband and wife in an attempt to encroach on the property of the other spouse, the division of the common property can be divided less or not; if the above behavior is discovered after the divorce, the other spouse can sue separately for another division. The case of Xiao mou in Beijing is typical: the woman discovered Ali's income and equity concealed by her ex-husband only after the divorce, and recovered 744465 yuan through a lawsuit of "property dispute after divorce. It can be seen that the sentence "property has been divided" in the agreement cannot prevent legal recourse afterwards-provided you can find it.

2. Have the other party reveal their hand first: asset declaration combined with an investigation order.

The newly revised Law on the Protection of Rights and Interests of Women (implemented on January 1, 2023) establishes the property declaration system in divorce proceedings. Both parties have the obligation to truthfully declare all the joint property of husband and wife to the court, and bear the adverse consequences of concealing or falsely declaring. For evidence kept by banks, securities dealers, social security, taxation, the other party's employer, companies, etc., an application form for investigation and evidence collection or a lawyer's investigation order may be submitted within the time limit for proof, stating the full name of the investigated unit, the name of the material, the period to which it belongs and the facts to be proved (for example, "transaction details of a certain bank's account from January 2024 to June 2026"). Applications that are overly broad in scope or lack clear specificity are often rejected for failing to demonstrate necessity. If a unit with an obligation to assist refuses or obstructs the investigation, the court may order it to perform and impose a fine; do not use secret photography, stolen passwords, etc. to obtain evidence, otherwise the materials may be excluded as a whole.

case reference: in the case of property dispute after the divorce between chen mou and xu mou, the company shares under the name of the defendant were formed in the marriage, and the court presumed it to be the joint property of husband and wife, and ordered that 11.28 of the shares and cash bonus of 1699830 yuan held by the defendant should be enjoyed by both parties in half. It can be seen that the shares of the company formed in marriage and its dividends are common property and should be included in the scope of division. Trial Court: People’s Court of Cixi City, Zhejiang Province Case Number: (2020) Zhe 02

82Minchu 865 No.

6. FAQ

The year-end award was awarded last year, and the divorce case was only awarded this year. Can it be divided?

Refer to the corresponding period. The nature of the year-end bonus is the remuneration of labor, the benchmark is when the labor corresponding to the income right occurs, and the part of the corresponding period within marriage is still common property in principle. However, if the divorce agreement has stated that "the property has been divided and there is no other common property", the claim will be very passive (the Nanyang case and the South Bank case were rejected due to insufficient evidence). A prudent approach is to specify in the agreement how year-end bonuses and commissions will be handled, or to explicitly reserve the right to do so.

My spouse already held company equity before our marriage. Am I entitled to a share of the dividends received after we got married?

It depends on the situation. If he actually participates in the operation and management of the company after marriage, the dividend belongs to the income of production, operation and investment, which is common property and can be divided. He only has the status of a shareholder and does not participate in the operation, and you cannot give evidence of his participation in the operation. The dividend may be recognized as the fruit of the pre-marital equity and belong to him personally. The focus of proof is on "whether to be in charge after marriage": attendance, appointment and social security records, meeting records, decision-making documents, and external contracts.

The company does not pay dividends for a long time, can I claim to share profits?

Whether a company distributes dividends or not is decided by the company's authority, and the court generally cannot force the company to distribute profits to shareholders. What you can claim is the property rights and interests corresponding to the equity in the spouse's name: the value is determined through negotiation or judicial audit evaluation, and the shareholding will compensate you at a discount.

Practical experience of 7. lawyers

When handling cases like this, the first step isn’t to rush into calculating the damages; instead, you should first thoroughly ascertain the other party’s actual income. Many parties focus solely on the other party’s salary account, thereby overlooking situations such as commission payments being settled based on cash receipts, year-end bonuses being paid in the following year, and dividends being recorded on the company’s books. What you need to do is gather the other party’s individual income tax returns for the past few years, as well as their social security and housing provident fund contribution bases, along with their employer and job level. These figures often provide a more accurate reflection of their actual income than a pay stub. If the other party is a shareholder or senior executive, you should also pay attention to any records of capital contributions, appointments, and dividend distributions in the business registration information. It is far more useful to put these clues together into a book than empty suspicion.

Whether the income is common property or not, two coordinates should be grasped: whether the money is actually acquired in marriage or has been confirmed to be acquired, and whether it comes from performing duties in marriage. If work such as year-end bonus and commission is done in marriage and money is paid out of marriage, the part shall be converted into marriage according to the corresponding performance period, and the whole sum shall not be spared just because the payment time is late. From the case experience, the key to this step is evidence: the other party's name in the bank flow, company payroll, option grant and exercise documents, equity dividend records, can be obtained in the prosecution by applying for a court investigation order or ordering the other party to declare property. You don't need to get the original by yourself, as long as you provide accurate clues, the rest can be done by the court.

When negotiating, don't report the figures as soon as you come up. First, use the deposit base and tax payment records you have to verify the other party's statement. Once the other party's caliber and evidence are not matched, then explain that these can be applied for investigation, which is often more effective than your repeated questioning. At the same time, leave two sets of plans for yourself: the part that can be verified will be divided equally, and the part that cannot be found temporarily can be agreed in the agreement to make another claim after discovery, so as to avoid giving up the unidentified income in advance in order to reach an agreement as soon as possible. Remember, the most feared thing about the division of income property is not the small share, but that you don't even know that this part of the money exists.

Regarding “invisible income” such as company dividends, year-end bonuses, and commissions, the outcome is largely determined before the divorce. First, evidence awareness is in advance: payroll, year-end bonus payment notice, commission settlement document and equity incentive document can be saved as soon as possible, personal tax APP income details are regularly captured, and large household consumption vouchers are kept. Second, don't use the sentence "the property has been divided" in the divorce agreement to give up all the year-end bonus, unvested equity incentive and undistributed company dividends that have not yet been obtained, and specify or make a reservation agreement item by item, which is the lowest way to prevent the cost of missing points. Third, if negotiations fail, proceed with the formal process: upon filing the case, promptly complete the property declaration form; within the evidence‑submission period, submit an application for an investigation order and cross‑verify bank transaction records, social security contribution bases, and individual income tax records. The deeper the other party hides, the greater the scope for the application of article 1,092 of the civil code, "less or no. In a nutshell: The amount of money you end up with depends on the evidence that can be found.