In the case of divorce, it is very important to determine whether the children and property have been properly handled.
If there is no major conflict between ordinary couples, in line with the principle of good reconciliation and good dissolution, more people choose to divorce by agreement.
But whether it is a divorce by agreement or a court-mediated divorce, you must pay attention to one sentence.
That is, "XX waived other litigation claims against XX" or "after the divorce, each other waived all rights and obligations" or "the property has been divided, and there is no other property dispute between the man and the woman".
[Basic Facts of the Case].
In September 2022, the client Li approached lawyer Wang Haiying to consult on the property dispute case after the divorce.
It is understood that Li and Zhong divorced through court mediation in 2019.
The mediation agreement reads as follows:
1. Plaintiff Li and defendant Zhong voluntarily divorced.
2. The daughter Zhong was brought up by Li, and Zhong paid 3,000 yuan per month for child support.
3. The joint property (real estate, car) of both parties has been divided.
4. Plaintiff Li gave up other litigation claims against defendant Zhong.
But in 2021, Li found that Zhong withdrew 300,000 yuan from the provident fund during the existence of the marital relationship.
And during the mediation and divorce between Li and Zhong, it did not involve the handling of the provident fund, company equity, dividends, investment funds, etc. under Zhong's name.
A repartition of that part of the property is now requested.
After learning the basic situation, according to the relevant evidence, agreement and court mediation provided by Li.
Lawyer Wang Haiying proposed that the best choice for this situation is not to resolve it in the form of litigation, because it has been made clear in the mediation letter that Li has waived other litigation claims against Zhong.
This clause can be understood as that Li has waived his claim against Zhong for other claims, including the waiver of claiming the division of other property under Zhong's name.
Among them, the biggest challenge for Li is that there is not enough evidence to prove whether the two parties have considered this part of the property although they did not clearly divide the provident fund under their respective names or investment and wealth management in the mediation agreement.
Because the division of property in the mediation plan is a comprehensive agreement on the division of common property between the parties, this does not mean that this type of property is not considered when the parties reach a mediation agreement.
In the end, under the prompting of lawyer Zai Wang, Li prepared the corresponding evidence, and then went to the court to conduct a lawsuit for the division of property after marriage.
However, the court did not support Li's claim.
Small Seconds Card
As a lawyer, I often encounter such clients.
If you want to save money and are in a hurry to get a divorce, you don't want to find a lawyer to write a divorce agreement or participate in divorce proceedings.
As a result, many people found a template from the Internet and changed it casually, and it became a "divorce agreement". Or study some of the legal texts on your own, and directly participate in the litigation yourself.
But many times, after the divorce, I am dumbfounded, the divorce agreement has taken effect, only to find that the other party still has a bunch of property hidden and undivided!
Although after the divorce, one party can still file a lawsuit in the people's court to request the division of the joint property of the husband and wife that the other party has hidden privately.
However, it is very difficult to collect evidence, and it takes time and energy to fight a lawsuit!
A divorce agreement that can be signed casually can be described as endless.
For many people, after the divorce, they can't wait to have nothing to do with it, even if they see each other for a second more, it is torment.
Therefore, for the divorce agreement or mediation letter, it can be written as much as it can be ruthless.
It is also emotional, human nature is changeable.
But there are a few words in the agreement that you need to be careful.
1. "Waiver of other litigation claims against XX."
A court lawsuit is a case of evidence.
If there is no evidence to prove that the other party is concealing the relevant property, it will be written to waive other claims.
The agreement will be deemed to be a waiver of the relevant rights and a "can but not do" as an agreement between the parties.
The legal consequences of such an act would be deemed to have been waived of the division of the other property of the other party.
Claiming division after divorce would be considered to be contrary to the principle of good faith.
Generally speaking, divorce agreements often explicitly stipulate the ownership of large amounts of property or the property disputed by both parties.
The fact that all common property is not listed does not mean that the parties have not disposed of the property that is not written.
When husband and wife live together, there must be a lot of small property, such as jewelry, clothing, etc., and in the absence of evidence to the contrary, small property can be presumed to be known to both parties.
2. "The property under the names of both parties shall be owned by each other"!
This sentence is not too friendly for the party who wants to transfer or hide the property!
When you write this sentence, it may be the one that the other party appreciates you the most during the divorce process.
Be careful not to write it when signing a divorce agreement!
Once you get divorced, it's okay to talk about the car and house, and it's too difficult for you to prove that the other party hid bank deposits when signing the divorce agreement, etc.
3. "The property has been divided, and there is no other property dispute between the man and the woman"!
If this sentence is written in the divorce agreement, it means that the parties have no objection to the overall property situation and the division method.
The divorce agreement is signed voluntarily by both parties, and if you clearly say that you have no objection, and then find out that the other party has hidden and transferred property after the divorce, even if you sue the other party, you may lose the chance to win the lawsuit!
Finally, it is important to note that a divorce agreement does not take effect once both parties have signed it.
Before the divorce formalities are completed, as long as one of the spouses repents, the divorce agreement will not be legally effective.
Therefore, if you have friends with such related problems, you must find a reliable person to advise before the divorce agreement takes effect.
If you have any legal questions, please contact me.
Marriage needs to be cautious, and divorce needs to be cautious as well.