How to divide marital property in divorce?

Divorce not only dissolves the personal relationship between husband and wife, but also terminates the property relationship between husband and wife, and naturally raises the issue of the identification and division of marital property.

According to Chinese law, there are two main forms of division of marital property: (1) division of agreed property.

In the case of divorce, the division of the joint property of the husband and wife shall first be seen whether the parties have agreed on the property, and if the husband and wife agree in writing or orally on who owns the property, and there is no dispute between the two parties, and the content is legal and valid, it shall be handled according to the agreement.

However, the agreement to circumvent the law is invalid.

The conditions for the legality and validity of a property agreement are: The subject of the agreement must be legal.

The subject of the agreement can only be the husband and wife.

When agreed, both parties must be persons with full capacity for civil liability.

The will of both parties is expressed to be legal.

The will of both parties shall be genuine and voluntary, and neither party shall use deception, threats, coercion or other means, nor shall the agreement be established that is obviously unfair.

The content of the agreement must be legal.

The content of the agreement must conform to the law and social public morality, and must not harm the interests of the state, the collective, and others.

Any agreement that evades the legal obligations of husband and wife, parents and children is invalid.

The form of the agreement must be legal.

The agreement shall be made in writing, and the oral agreement shall be valid if recognized by both parties.

Only agreements that meet the above conditions can be handled according to the agreement.

2) Division of legal common property.

Where there is no agreement between the husband and wife, or there is an agreement but there is a dispute between the two parties or the content of the agreement is unlawful, it is to be handled in accordance with the legally prescribed method of division, that is, the personal property belongs to the individual, and the joint property of the husband and wife is divided equally under the principle of taking care of the rights and interests of women and children.

Legal analysis: The part belonging to the joint property of the husband and wife shall be divided by the two parties through consultation, and if the negotiation fails, the court shall decide how to divide it, and in principle, the division of the property of the husband and wife shall be divided equally, but if one party is at fault, it may be divided less or not divided. Legal basis:

Article 1076 of the Civil Code of the People's Republic of China Where both 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 can only divide the joint property of the husband and wife, not the pre-marital property. The husband buys the house in full before marriage, and when the divorce occurs, the property belongs to the man; The husband takes out a loan to buy a house before marriage, and the part of the joint loan repayment is divided according to the joint property of the husband and wife.

Legal analysis: Generally speaking, it is half of one person, and if the agreement is not reached, the people's court shall make a judgment according to 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 basis of this law is: Article 1087 of the Civil Code of the People's Republic of China In the event of divorce, the joint property of the husband and wife shall be disposed of by agreement between the two parties; 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 the husband or wife in the contracting and operation of the family's rolling land shall be protected in accordance with law.

Divorce can only divide the joint property of the husband and wife, not the pre-marital property. The male branch digs the full amount of the house before marriage, and when the divorce, the property belongs to the man; The husband takes out a loan to buy a house before marriage, and the part of the loan repayment is divided according to the joint property of the husband and wife according to law.

In view of the situation that some spouses buy a car and a house for Xiao S, how to distribute the divorce and financial draft of the husband and wife? In this case, the spouse has every right to demand the return.

It is possible to sue for divorce directly and request the division of the marital property.

There are indeed many divorce lawyers in Nanjing, but there are not many divorce lawyers who can really handle it well, so I think it is better to find a male lawyer.

The income and property of the husband and wife during the existence of the relationship are all joint property.