Ningbo "fake divorce" to avoid debt, divorce agreement to transfer property to the spouse, creditors how to chase.

The bosses who do business in Ningbo are most afraid of two things: one is that the money cannot be collected, and the other is that the person who borrows the money will turn his head and "get divorced and leave the house clean". Factory owners in Yinzhou and Beilun have encountered such situations: the debtor once owned a house, a car, and shares in the factory; yet after the judgment or mediation agreement takes effect and they apply for enforcement, they find that all assets are gone— the house has been transferred to the spouse, the car to the children, and even the bank statements show no transactions whatsoever. After a round of inquiries, I found out that when the lawsuit was going on, I went to register for divorce. The divorce agreement said, "The house belongs to the spouse, the deposit belongs to the spouse, and the debt belongs to myself", and I have "nothing". The creditor stood at the door, empty-handed, with a question burning in his heart: Is this marriage a sham? Will I ever get my money back?

There are two levels of answers. On the first level, the term "false divorce" is not legally valid-as long as the two go to the marriage registration office to register for divorce, or the people's court mediates and decides to divorce, the marriage relationship will be truly dissolved, and the law does not ask you. Is it true that what you think is true. The second layer is the real grip of creditors: divorce is real, but the transfer of property to your spouse almost free of charge, which obviously damages your creditor's rights, can be eliminated. The following is the order in which the parties in Ningbo are most concerned: whether the divorce agreement stipulates that "the debt belongs to one party" can block the creditor, how to use the creditor's cancellation right, how to calculate the time limit, what evidence to prepare, and finally the handling channels and practical points of Ningbo.

1. Ningbo "fake divorce" to evade debt: the divorce is real, but evading debt may not necessarily succeed.

Let’s first clarify the most commonly misunderstood point: there is no such thing as a “sham divorce” under the law. As long as the husband and wife go to the marriage registration office to register for divorce and receive a divorce certificate, or the people's court mediates and decides the divorce, the marriage relationship will be truly dissolved. The registration authority and the court review only the expression of intent regarding whether or not to divorce; they do not examine whether you are divorcing solely to evade debt. So the debtor's defense of "we are a fake divorce, but we still live together" is usually not tenable; similarly, the creditor's expectation that "proving that they are a fake divorce will invalidate the divorce and restore the relationship between husband and wife" is also the wrong way-the divorce registration will not be revoked because of impure motives.

So what does the creditor rely on? Not on “the divorce being invalid,” but on the fact that “the act of disposing of property can be revoked.” In other words, the divorce itself you can't move, but the divorce agreement that "the house, savings are owned by the spouse, debt out" of the property division clause, if the essence is free or obviously not the price of the property transferred out, resulting in the debtor not to pay your money, the court can revoke it in accordance with the law. Some business owners in Ningbo suffered this loss: they thought it would be safe to move all their property to their spouses. As a result, the creditors filed a revocation lawsuit to bring back the division of the property transferred to their spouses in the divorce agreement to the enforceable scope of the property.

2. ningbo creditors the first way: divorce agreement "debt to one party", not effective for creditors

Many people think that when the couple agree in the divorce agreement that "all debts shall be borne by one party and have nothing to do with the other party", the creditor can only find the party who has the debt, and it is useless to find the spouse. This treats an “internal agreement” as having “external legal effect.”

According to Article 3 of the Interpretation (II) for Marriage and Family of the Civil Code and the consistent standard of the trial practice, the agreement on property division and debt assumption in the divorce agreement is essentially the internal arrangement between husband and wife, which has no effect on creditors without their consent. That is to say: internally, this agreement is valid, who paid more money, how much, can later recover from the other party.

This point should be considered in conjunction with the determination of marital joint debts. Article 1064 of the Civil Code defines the circumstances under which a joint debt is owed by the husband and wife, such as the joint signature of the husband and wife, the subsequent ratification of one party, or the debt incurred by one party for the daily needs of the family; large debts that exceed the daily needs of the family usually require the creditor to prove that they are used for joint life, joint production and operation, or based on the common intention of both parties. Why do these two things need to be said together? Because what the creditor wants to revoke is "the debtor's disposition of property", provided that the debtor does owe you money and your claim is true and valid. As to whether the debt is a joint debt of the husband and wife or a personal debt, it does not affect you to exercise the right of revocation of the debtor alone, but if it constitutes a joint debt, you may directly list the spouse as the executed person at the execution stage, and the path will be wider.

Therefore, the conclusion of the first path is very straightforward:When one party “takes on all the debts” in a divorce agreement, it neither protects creditors nor effectively safeguards their interests.. What creditors really need to focus on is the second avenue—creditor’s right of rescission.

3. The second option for creditors in Ningbo: exercising the right of revocation to "recover" the transferred property.

The Civil Code has given creditors two “revocation” tools. Article 538 For gratuitous disposition: if the debtor disposes of property rights and interests without compensation by giving up its claim, giving up the guarantee of the claim, transferring property without compensation, or maliciously extending the period of performance of its due claim, which affects the realization of the creditor's claim, the creditor may request the people's court to revoke the debtor's act. Article 539 For transactions with obvious non-price: if the debtor transfers property at an obviously unreasonable low price, assigns another person's property at an obviously unreasonable high price, or provides security for another person's debt, which affects the realization of the creditor's claim, and the relative knows or should know the situation, the creditor may request the people's court to revoke the debtor's act.

In divorce agreements, property division typically falls into one of two categories: “without consideration” or “with an obviously inadequate consideration.” For example, giving your house and substantial bank deposits to your spouse in their entirety with virtually no consideration, leaving yourself with nothing while your debts remain unpaid—this is a classic case of gratuitous transfer of property. This is exactly the problem to be solved in Article 3 of the Interpretation (II) for Marriage and Family of the Civil Code: if the creditor of one spouse has evidence to prove that the property division clause in the divorce agreement affects the realization of his creditor's rights, he may request to revoke the relevant clause with reference to the provisions of Article 538 or 539 of the Civil Code; The people's court will comprehensively consider factors such as the overall division and performance of the couple's common property, the burden of child support, divorce fault, support in accordance with the law.

please pay special attention to the discretion in this sentence-it is not "one size fits all", but "support according to law after comprehensive consideration". This means that the court will neither allow the debtor to empty the property and leave the creditors aside by divorce, nor will it ignore the legitimate interests of the spouse and minor children because of a creditor's claim. Marital property is indeed mainly earned by one spouse, has always been actually held by the spouse, or has been divided with reasonable consideration for child support, which will be put into the balance together.

4. How to exercise the right of revocation: Key elements, methods of exercise, and time limits that parties in Ningbo should be aware of.

To effectively exercise the right of rescission, first make clear the three key aspects: the constituent elements, the method of exercise, and the time limit.

1. Elements of the offense

To sum it up, four sentences. First, you have a real, effective and unpaid creditor's right to the debtor. Second, the debtor has disposed of the property free of charge or at an obviously unreasonable price (these two types correspond to articles 538 and 539 of the Civil Code respectively); Third, this behavior affects the realization of your creditor's rights-generally speaking, the debtor has been so disposed of that there is no other property to enforce, or obviously not enough to pay you back; Fourth, the object of revocation should fall on the specific property disposition, rather than denying the whole divorce in general.

2. Method of exercise: Must go to the court; cannot be invalidated on one’s own.

Article 538 and Article 539 both state that it is "request the people's court to revoke", so the right of revocation is not effective when the creditor sends a written notice and declares "I don't agree with this division", but must be exercised through litigation. After revocation, the disposed property is returned to the debtor's liability property to the extent appropriate, and you can be paid for the property in execution. In reality, the operation is that the creditor lists the debtor (the party who disposes of the property) and the counterpart of the transferred property (e. g. his original spouse) as defendants and requests the revocation of the corresponding property division clause in the divorce agreement.

3. Deadline: Cannot be delayed

The right of revocation is subject to a time limit, which is a strict statutory constraint. According to the relevant provisions, the creditor shall exercise it within a certain period of time from the date on which it knows or should know the cause of avoidance, and shall not exceed a certain number of years from the date of the debtor's act. The specific number of days is subject to the provisions of the current law, and in practice it is important to start as soon as possible-many creditors lose the case, not because they do not account for the reason, but because they know it too late and have delayed the deadline. If a party in Ningbo is uncertain about the starting point, it is advisable to promptly secure evidence of “when they became aware” and consult with a professional.

5. Presentation of evidence and reverse protection: The respective focuses of the two parties in Ningbo.

In a lawsuit for the right of rescission, the burden of proof is often the decisive factor.

There are three key sets of evidence that the creditor needs to prepare. The first group is the claim itself: the contract, the debit note, the transfer voucher, the statement of account, and the judgment, conciliation or arbitral award that has entered into force, which is used to prove that the debt is genuine, that the amount is clear, and that it has not been paid. The second group is "disposition behavior": the text of the divorce agreement, the record of the transfer of real estate, the change of vehicle registration, and the flow of large bank transfers, which are used to prove that the debtor has transferred the property to the spouse or child in a free or obviously non-priceless manner. The third group is "affecting the realization of the claim": the debtor has no property available for execution in the name of the disposition, the decision to "terminate the execution" in the execution, etc., which is used to prove that the money cannot be obtained without revocation.

Conversely, each spouse also has their own boundaries. At the time of divorce, how the husband and wife's common property is divided as a whole, who bears the child support fee, and which party is at fault in the divorce are all important factors when the court measures whether to revoke and how much to revoke. If the division itself is generally reasonable, the minor children have been taken care of, or the property being disposed of actually belongs to the spouse's personal property (e. g. premarital property, expressly agreed personal property), the space for revocation will be narrowed accordingly. Therefore, this is not necessarily a zero-sum scenario in which “divorce means surrendering all assets”; rather, the court seeks to strike a balance among the legitimate rights and interests of all parties.

In addition to the revocation of the 6., the parties in Ningbo also need to know: less points and no means of execution

Debtors shouldn’t assume that if a “sham divorce” is exposed, the worst that will happen is its annulment. According to article 1092 of the Civil Code, if one of the spouses hides, transfers, sells, destroys, or squanders the joint property of the husband and wife, or falsifies the joint debt of the husband and wife in an attempt to encroach on the property of the other spouse, the party may be divided less or not when the divorce divides the joint property of the husband and wife. This article protects the other spouse who is injured in a divorce-that is, if the debtor transfers the common property by "divorce" and the original spouse later claims a re-division, the court may award him or her a small or non-division.

This point has a clear ruling rule in the Guiding Case No. 66 of the Supreme People's Court: if the joint property of husband and wife is hidden, transferred, sold or damaged during the divorce proceedings, the joint property can be divided less or not (source: Guiding Case No. 66 of the Supreme People's Court). On the creditor side, in addition to the cancellation right lawsuit, it can also use sufficient means in the execution procedure: apply to the court to inquire, seal up, freeze, seize, auction and sell the corresponding shares of the debtor or common property under the name of the debtor and his spouse, apply for additional enforcee and file an execution objection lawsuit depending on the circumstances, and fill in the loophole of "divorce cannot be traced back. The "termination of this execution" in the execution does not mean that the case is closed and abandoned. If new property clues are found, you can apply for the resumption of execution at any time.

class case reference: in the case of property dispute after the divorce between zhao mou and zhu mou, the right of cancellation of the outsider's creditor has come into effect to cancel the transfer of the house in dispute in the divorce agreement, and the court accordingly changed the judgment and rejected the plaintiff's claim for the ownership of the house according to the divorce agreement. It can be seen that if the debtor transfers the property to the spouse by means of the divorce agreement for free or at a low price in order to evade the debt, the creditor may exercise the right of avoidance of the part of the property that damages his claim and recover the transferred property. Trial Court: Intermediate People’s Court of Ningbo City, Zhejiang Province Case Number: (2011) Zhe Yong Min Yi Zhong Zi No. 712

7. Frequently Asked Questions

Question: If the divorce agreement states that “all debts are to be borne by him,” can the creditor still seek repayment from the spouse?

We need to determine whether this debt is a joint liability of the spouses. If it is a joint debt as mentioned in Article 1064 of the Civil Code (e. g. signed by both parties, ratified by one party afterwards, or borne by the daily needs of the family), then the internal agreement of the divorce agreement on who will bear it will not take effect on the creditor without the consent of the creditor, and the creditor can still claim it from both parties and list the spouse as the person to be executed at the execution stage. As to who will pay the final between the two people, it is a matter of their internal recovery according to the agreement. In the case of a personal debt of a debtor, the creditor can in principle only find that party, but can still exercise the right of avoidance for the part of the property that was transferred free of charge in the event of a divorce.

Question: After going through a “sham divorce,” are creditors left with no recourse?

On the contrary. There is no such thing as a "fake divorce" in the law, and as long as the divorce is registered, the marriage relationship is truly dissolved, and the debtor cannot rely on this in turn to claim that the marriage is invalid;However, creditors do not win by "proving a false divorce", but by revoking the property division clause in the divorce agreement that affects the realization of their claims, and pulling the transferred property back to the enforceable property within the corresponding scope. The conclusion is that divorce is really unstoppable, and "fake divorce" cannot protect property.

Q: Can the right of revocation be mentioned at any time, even after several years?

No, the revocation right has a time limit, and it will be eliminated after that. According to the relevant provisions, the creditor shall exercise it within a certain period of time from the date on which it knows or should have known of the cause of avoidance (and not more than a certain number of years from the date of the debtor's act). Once the time has passed, even if the reason is sufficient, the court will not support it. So once you find signs of a debtor's divorce or transfer of property, the first thing is to fix the evidence, the accounting period, and prosecute as soon as possible.

Question: Who should I sue when the debtor transfers all the property to the original spouse?

usually lists the debtor (the party who disposes of the property) and the relative of the transferred property (e. g. his original spouse) as the defendant, requesting to revoke the corresponding property division clause in the divorce agreement. If your claim has been confirmed by the effective judgment, you can apply for control and seizure of the corresponding property simultaneously in the execution.

8. Practical Insights from a Lawyer

After the debtor divorced and went out of the house, the creditor was most likely to fall into a misunderstanding, that is, desperately trying to prove that it was a false divorce, in order to make the divorce invalid and restore the relationship between husband and wife. However, divorce registered or handled by the court is real and effective, and impure motives will not allow the divorce to be revoked, and entanglement on it will only consume litigation resources in vain. The real grip is not on the marriage itself, but on the property arrangement in the divorce agreement, which transfers the property to the spouse almost free of charge and obviously damages the creditor's rights. Only by shifting the focus of the attack from the validity of the marriage to the property disposition act does the line of reasoning become sound, and only then do the subsequent steps have a clear target.

To take the road of revocation, we must keep an eye on the requirements and deadlines. The claim itself should be legal and effective, the disposition should actually affect the realization of the claim, the time of exercise should also be stuck, and the overdue is likely to lose the right directly. Therefore, once it is discovered that a debtor has initiated divorce proceedings or transferred assets en masse during a sensitive period, action should be taken promptly rather than waiting until enforcement has completely failed before seeking recourse. The focus of proof is to restore the line that the property is transferred as a whole, free of charge or obviously without price. The property terms in the divorce agreement, the time point of change of real estate and vehicles, and the flow of funds are all joints on this line. Arrange them according to time, and the context of damaging the creditor's rights will be clear. In cases of this type

, the two parties typically each identify their own key points. Creditors should find out the time of divorce registration and the time of debt formation and dispute outbreak, and find out whether the property change occurred before and after the lawsuit, while the debtor will emphasize that the property is the spouse's personal, the division has a reasonable consideration, and has nothing to do with the debt. In addition to the right of revocation, one may also consider asserting a claim for a smaller share or no share at the division stage, while simultaneously employing enforcement measures to trace concealed assets. It should be reminded that it is always more cost-effective to prevent in advance than to recover afterwards. When lending, pay attention to the borrower's family property structure and marital status, and require the spouse to confirm jointly when necessary, which can save a lot of proof costs in the future.

Condense the entire piece into one memorable sentence: The divorce is real; the debt evasion is fake. Once the divorce is registered, the marriage will be truly dissolved, and no one can turn over the case. However, creditors have their own two solid ways-the agreement of "debt to one party and property to the other party" in the divorce agreement will not take effect on creditors without consent; The property division clause that transfers property free of charge or obviously at no price can be revoked with reference to Articles 538 and 539 of the Civil Code, the court will combine factors such as the overall division, the burden of maintenance, and the fault of divorce to determine whether it is supported. These two roads, one broadens the scope of "who should be asked for", and the other pulls back the "transferred property", which together is enough to make the well-designed "clean-out-of-the-house debt avoidance" a big discount.

The advice given to both sides is very straightforward. Debtor: Don't expect to rely on the divorce agreement to transfer property to avoid the debt that has already occurred. In the example where the right of revocation is supported, the transfer is not only in vain, but the property is still recovered, and it may also be divided or not divided due to malicious disposition in the division. Creditors: Once the debtor is found to have "sudden divorce and property move", don't just wait for execution, fix the creditor's rights certificate as soon as possible, obtain the divorce agreement and transfer flow, calculate the period of revocation right, and file the revocation right lawsuit as soon as possible; At the same time, don't forget to check and control, add and resume execution in the execution, multi-pronged approach.