Can debts be divided after divorce, and how to divide debts after divorce

The property acquired during the marriage is the joint property of the husband and wife, and the joint property and debts of the husband and wife are jointly owned and borne by the husband and wife, generally one and a half, and the joint property of the husband and wife is divided in accordance with the principle of equality between men and women, protection of the legitimate rights and interests of women and children, and consideration of the innocent party.

In the case of divorce, when one party sues for the other to bear the joint debt, if the other party does not accept it, the general view of the court is that because the debt has an interest in the outsider, the facts can only be ascertained after the participation of the outsider, and the creditor should claim it directly against the debtor, and one party can handle it together when the creditor claims the debt, so it will not be dealt with in the divorce proceedings.

Debts owed in the name of one party during the existence of the marital relationship shall, in principle, be recognized as joint debts of the husband and wife (except for illegal debts, debts owed for gambling or illegal and criminal acts are either not protected by law or should be borne by the debtor himself) and should be repaid jointly by the husband and wife. However, if one of the spouses can prove that the debt is indeed a personal debt owed to the debtor, then the unmarried party can oppose the creditor's claim. There are two main situations in which it is a personal debt, one is that the creditor and the debtor expressly agree that the debt is a personal debt; The other is the situation provided for in Article 19, Paragraph 3 of the Marriage Law.

Paragraph 3 of Article 19 of the Marriage Law stipulates that "if the husband and wife agree that the property acquired during the existence of the marital relationship shall belong to each other, and the debts owed by the husband or wife to the outside world are known to the third party, the property owned by the husband or the wife shall be repaid".

If the borrower is unable to prove that the money has been used for the husband and wife to live together after it is determined to be a marital debt, the repaying party may file a separate lawsuit to demand that the borrower repay the money.

If the debt is a personal debt of one of the original spouses, even if the debt was incurred during the marriage, the debt should still be paid back by the individual after the divorce, and the court may only name the individual as the defendant and order him to bear the repayment. If the debt is a joint debt, the liability for the debt shall be determined by one or both parties according to the manner of divorce and the agreement or provision of the debt. When a creditor sues the debtor to repay the debt.

If the court makes a judgment on the apportionment of joint debts in a divorce case, the judgment opinion shall be used to determine who will repay the joint debts, that is, one of the original husband and wife shall bear the debts.

[Legal basis].

Article 1089 of the Civil Code of the People's Republic of China In the event of divorce, the joint debts of the husband and wife shall be repaid jointly. Where the joint property is insufficient to be paid off or the property is owned by each other, the two parties shall settle it by agreement; If the agreement is not reached, the people's court shall make a judgment.

How to divide the debts after divorce depends on the results of negotiation between the two parties, and the joint debts of the husband and wife must be agreed by the creditors to be valid.

Legal analysis: After divorce, debts can be divided, one party's personal debts are repaid by the individual, and the joint debts of the husband and wife are repaid by the husband and wife, but the agreement on joint debts has no external effect. The law stipulates that the husband and wife shall bear joint debts in the following ways:

First of all, it shall be repaid jointly by the common property, and if the joint property is insufficient to pay off or the property is owned by each other, the two parties shall agree to pay it off; If the agreement is not reached, the people's court shall make a judgment.

Legal basis: Article 1064 of the Civil Code of the People's Republic of China Debts borne by the husband and wife jointly signed or by one of the husband and wife as a joint expression of intent, as well as debts incurred by one of the husband and wife in their own name for the daily needs of the family during the existence of the marital relationship, are joint debts of the husband and wife.

Debts incurred by one of the spouses in his or her own name during the existence of the marital relationship in excess of the daily needs of the family are not joint debts of the husband and wife; However, the creditor can prove that the debt was used for the husband and wife's common life, joint production and business, or based on the common intention of the husband and wife.

Legal analysis: The division of divorce debts is: the debts borne by the husband and wife jointly signed or the common intention of one of the husband and wife to be recognized afterwards, as well as the debts incurred by one of the husband and wife in the name of the husband and wife for the daily needs of the family during the existence of the marital relationship, which belong to the joint debts of the husband and wife.

In the event of divorce, the joint debts of the husband and wife shall be repaid jointly. Where the joint property is insufficient to be paid off or the property is owned by each other, the two parties shall settle it by agreement; If the agreement is not reached, the people's court shall make a judgment.

Legal basis: Article 1076 of the Civil Code of the People's Republic of China Where a husband and wife divorce voluntarily, they shall sign a written divorce agreement and apply for divorce registration in person at the marriage registration authority. The divorce agreement shall clearly state the parties' expression of intent to divorce voluntarily and the consensus on matters such as child support, property, and debt handling.

Article 1079:Where one of the husband and wife requests a divorce, the relevant organization may conduct mediation or directly initiate divorce proceedings in the people's court. People's courts hearing divorce cases shall conduct mediation; If the relationship has indeed broken down and mediation fails, the divorce shall be granted. In any of the following circumstances, if mediation fails, a divorce shall be granted:

1) bigamy or cohabitation with another person; (2) Committing domestic violence or abusing or abandoning family members; (3) Having gambling, drug abuse, or other vices that have been repeatedly taught; (4) They have been separated for two years due to emotional discord; (5) Other circumstances that lead to the breakdown of the relationship between husband and wife. Where one party is declared missing and the other party initiates divorce proceedings, the divorce shall be granted. Where, after a people's court has ruled that divorce is not permitted, the parties have been separated for one year, and one party initiates divorce proceedings again, the divorce shall be granted.

Article 1085:After divorce, where children are directly raised by one party, the other party shall bear part or all of the child support. The amount of the cost to be borne and the length of the period shall be agreed upon by both parties; If the agreement is not reached, the people's court shall make a judgment. The agreement or judgment provided for in the preceding paragraph does not prevent the child from making a reasonable demand to either parent in excess of the amount originally set forth in the agreement or judgment when necessary.

Article 1087:In the event of divorce, the joint property of the husband and wife shall be disposed of by mutual agreement; If an agreement is not reached, the people's court is to make a judgment based on the specific circumstances of the property and in accordance with the principle of taking care of the rights and interests of the children, the woman, and the innocent party. The rights and interests enjoyed by husbands or wives in the contracting and management of family land shall be protected in accordance with law.

Divorce debts should be divided through negotiation, but the result of negotiation is only effective between husband and wife, that is, even if it is agreed that the debts will be repaid by one party, the creditor can still ask either party to repay after the divorce. If the parties are unable to negotiate a valid outcome, the court will make a judgment on how to divide the joint debt. Personal debts are still repaid by the individual, and the other party is not liable for repayment.

Legal basis] Article 1089 of the Civil Code provides that in the event of divorce, the joint debts of the husband and wife shall be repaid jointly. If the joint property is insufficient to be repaid or the property is owned separately, it shall be repaid by mutual agreement; If the agreement fails, the people's court shall sentence the cherry blossom to be closed.

1. How to divide debts after divorce.

In the event of divorce, the debts owed by the spouses include the joint debts of the spouses and the personal debts of one of the spouses. In the case of joint debts, even if the parties divorce, they should be paid off jointly. There are three types of specifics:

1) If the joint property of the two parties is sufficient to pay off the joint debts, the joint property shall be used to pay off the joint debts, and the remaining property shall be equally distributed among the two parties.

2) If the joint property is insufficient to pay off the joint debts, the two parties shall agree to pay off, and if the agreement fails, the court shall make a judgment.

3) In the absence of joint property, the debts shall be paid off by agreement between the two parties, and if the agreement is not reached, the court shall still make a judgment. In the event of the death of one of the husband or wife, the surviving spouse shall be jointly and severally liable for the joint debts incurred during the marriage.

2. How to share debts in the event of divorce.

In the case of joint debts, they are generally repaid jointly by both spouses. However, if it is a personal debt of one of the husband and wife, the creditor can only ask the husband and wife of the debtor to return it, and cannot require the husband and wife to jointly bear the debt

1. The creditor and the debtor expressly agree that the debt is a personal debt. For example, if the loan agreement between the creditor and the debtor clearly stipulates that the debtor alone shall bear the responsibility for the performance of the debt, it shall be deemed that the creditor has waived the right to require the debtor and his spouse to repay the debt. However, if the debtor in the written agreement is signed by only one debtor, and the agreement does not expressly stipulate that the debtor alone bears the responsibility for the performance of the debt, the debtor and his or her spouse shall jointly bear the debt.

2. Circumstances provided for in Paragraph 3 of Article 1065 of the Civil Code. That is: "if the husband and wife agree that the property acquired during the marriage relationship shall belong to each other, and the debts owed by the husband or wife to the outside world are known to the third party, the property owned by the husband or wife shall be repaid".

Such knowledge of third parties should be proved by the debtor and his wife.

3. The pre-marital personal debts shall be borne by the individual, unless the creditor can prove that the debt is used for the marital life of the husband and wife, such as proving that the loan is used for the purchase of the joint house of the husband and wife, the decoration of the marital house, the expenses of the wedding, the purchase of household appliances and valuables shared by the husband and wife, the illness of the debtor's spouse**, the sunrise expenses of the debtor's husband and wife living together after marriage, etc.