加载中…
个人资料
divorceinchina
divorceinchina
  • 博客等级:
  • 博客积分:0
  • 博客访问:18,831
  • 关注人气:23
  • 获赠金笔:0支
  • 赠出金笔:0支
  • 荣誉徽章:
相关博文
推荐博文
谁看过这篇博文
加载中…
正文 字体大小:

Evidence, evidence and evidence Part 3 Division of commu

(2014-11-04 15:03:39)
标签:

evidence

community

assets

As the Chinese saying goes a clever house wife can not make a good meal without ice, in China, a lawsuit is all about evidence. (Of courts, it is totally up to the court about what can be considered as valid evidences.) No matter how many assets you believe the other party has had in his or her own name which shall be subject to be divided as they are community assets, I need the evidences to prove the existence of such assets first.

It is impossible for me to exhaust the list of what are qualified evidences for the division of community assets but I will try to give a summarization about what kinds of evidences the court usually will take a look at in the division of community assets.

Based on whether they are accessible or not, evidences can be categorized as: 1. evidences at hand, 2. evidences accessible to lawyers, 3. evidences to be acquired with a court order, 4. evidences to be acquired only through the court

Evidences at hand are the ones the client is able to collect on his or her own. A wise client will at the lawyer’s advice collect as many evidences as possible before the law suit is filed so as to pave the way for the future fight at court.

In China, basically, all the assets acquired after marriage will be considered as husband and wife community assets except for the five situations where the law clearly makes it clear that assets obtained in the those situations belong to the individual: the assets acquired before marriage, the compensation for medical treatment, handicap and etc paid to the party because of the injury he or she has suffered, the asset given to the party only by a valid will or a donation contract as a gift, articles for daily use by the party only and other assets that shall belong to the party only instead of the husband and wife. In No, 3 Judicial Interpretation of Marriage issued by the Supreme Court, the apartment purchased by one party’s parents only and registered under that party’s name only is considered as that party’s individual asset and is not subject to division when divorce occurs. That is for the protection of the parents’ assets from being taken away by the daughter in law or son in law when divorce occurs.

It is to the other party to prove the assets acquired during marriage are individual assets and all the client needs to do is to make a list about the assets acquired after marriage with basic evidences to prove. The purchase contract of an apartment, car, the insurance contract, the share invested by the spouse to the company during the marriage and etc can be used as solid evidence to prove the existence of such assets as long as they are true. It is perfect if the client has the other party’s bank cards’ records, labor contract, stock option contract, records of the pension and housing accounts, share transaction records, fund investment document, invoices for precious asset purchasing and etc. Anything that you believe has something to do with the assets can be given to the lawyer for evaluation.

For accessible to lawyers are the ones a lawyer can obtain with the introduction letter of the law firm and the lawyer practice certificate. Evidences are police records if a domestic violence is reported, the documents like the article of associations of the company the other party is a shareholder to filed at the Administration of Industry and Commerce, court records if possible, real estate information registered at the real estate transaction center as long as the exact address of the real estate is available. At present in China, the lawyer’s access to information is quite limited and do not pin all your hope about evidence collection on your lawyer and try to give the lawyer as detailed information about the assets as possible.

For evidences to be acquired with a court order, such evidences can only be collected by the lawyer with the court order. The court order will works only when the will be invested party or unit cooperates. With the court order, the lawyer can go to the Administration of Industry and Commerce for detailed financial reports filed for record at the bureau, the pension fund and housing fund accounts if the other party’s ID is known and the employer of the other party pays employee social security, the salary or income details to be prepared by the HR department of the other party’s employer, the option contract, the share account, the detailed transaction documents of an apartment or a car, balance sheet of the invested company by the other party filed for record at the tax bureau as long as the exact name of the company is known.

Remember, the court order is not omnipotent and if the will be invested party refuses, there is no way out but to resort to the court to collect the evidences.

For evidences to be acquired only through the court, apart from the evidences the lawyer fail to collect with the court order, evidences from financial institutes or transaction records from the third party payment institutes, or the personal income tax record can not be obtained without the court’s help. Remember, judges are too busy and private secrecy is too important to the clients of the banks. The accurate and complete bank account number, the account opening bank, the accurate third party payment account have to be known to the court.

In real life, lots of clients believe that it is totally the lawyer’s job to collect the evidences. That is completely not true. What the clients have had, have known and have provided with the lawyer will shed the light on where to follow by the lawyer. Even if a divorce is unavoidable, there still remains some trust between the husband and wife, make good use of the trust and get as much information about assets as possible from the other party’s mouth and follow the leads, making good preparation of the assets which you were unaware of, taking photos of the flexible assets which you may have no fixed evidence to prove and can be easily hidden from you, paying close attention to the other party’s job change and etc.

In a word, dig deep, prepare well and find a good lawyer.

0

阅读 评论 收藏 转载 喜欢 打印举报/Report
  • 评论加载中,请稍候...
发评论

    发评论

    以上网友发言只代表其个人观点,不代表新浪网的观点或立场。

      

    新浪BLOG意见反馈留言板 欢迎批评指正

    新浪简介 | About Sina | 广告服务 | 联系我们 | 招聘信息 | 网站律师 | SINA English | 会员注册 | 产品答疑

    新浪公司 版权所有