How to divide the divorce property and who the children are with

After the divorce, the joint property of the husband and wife and the children shall be disposed of by agreement between the two parties, and if the agreement is not reached, the people's court shall make a judgment in accordance with the principles. According to the Marriage Act, the specific provisions are as follows:

Article 36: The relationship between parents and children is not extinguished by the divorce of parents. After divorce, the child remains the child of both parents, regardless of whether they are raised directly by the parent or the parent.

After divorce, parents still have the right and obligation to raise and educate their children.

After divorce, the child who is breastfeeding shall be raised with the nursing mother. If the two parties cannot reach an agreement due to a dispute over the custody of a child after breastfeeding, the people's court shall make a judgment based on the rights and interests of the child and the specific circumstances of both parties.

Article 37: After a divorce, the other party shall bear part or all of the necessary living expenses and education expenses for the children raised by one party, and the amount of the expenses 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.

An agreement or judgement concerning the maintenance and education of the child shall not prevent the child from making a reasonable demand to either parent, if necessary, in excess of the amount originally agreed upon in the agreement or judgment.

Article 38: After divorce, the parent who does not directly raise the children has the right to visit the children, and the other party has the obligation to assist.

The method and time for exercising visitation rights are to be agreed upon by the parties; If the agreement is not reached, the people's court shall make a judgment.

Where a parent's visit to a child is detrimental to the child's physical and psychological health, the people's court is to suspend the right to visit in accordance with law; When the reason for the suspension disappears, the right to visit shall be restored.

Article 39: At the time of divorce, the joint property of the husband and wife shall be disposed of by agreement between the two parties; If the agreement is not reached, the people's court shall make a judgment based on the specific circumstances of the property and the principle of taking care of the rights and interests of the children and the woman.

The rights and interests enjoyed by husbands or wives in the contracting and management of family land shall be protected in accordance with law.

Article 40: Where husband and wife agree in writing that property acquired during the existence of the marital relationship shall belong to each other, and one party has paid more obligations for raising children, taking care of the elderly, assisting the other party in work, etc., they have the right to request compensation from the other party at the time of divorce, and the other party shall make compensation.

Article 41: At the time of divorce, debts originally incurred by the husband and wife while living together shall be repaid jointly. If the joint property is insufficient to be repaid, or the property is owned by each other, it shall be repaid by agreement between the two parties; If the agreement is not reached, the people's court shall make a judgment.

Article 42 At the time of divorce, if one party is in difficulty, the other party shall give appropriate assistance from his or her housing and other personal property. The specific measures shall be agreed upon by both parties.

The joint property of the husband and wife is generally divided equally, and the two parties negotiate the custody of the child in advance, and if the negotiation fails, the court will generally determine which party is more conducive to the child's growth to be raised by the child.

The marital property is jointly owned and divided equally.

Depending on the child's age, family and economic status, and environment.

If both parties are not at fault for the divorce, the property is generally half of the property, and the party without children has to pay child support to the party with children on a monthly or lump sum basis. For the maintenance of children, the wife will be raised under the age of two, and between the ages of two and 10, the court will examine who is conducive to the child's development and decide who will belong to the child.

The distribution of property and child support in the divorce are as follows:

1. Unless otherwise agreed, property and personal property are generally not divided, and the joint property of husband and wife shall be divided by the husband and wife through consultation, and if the negotiation fails, the people's court shall make a judgment according to the specific circumstances;

2. Where children are less than two years old, they are generally directly raised by their mothers, and where they have reached the age of two years, the guardians are to be confirmed in accordance with the principle of the best interests of the minor children, and where the children have reached the age of eight, their true wishes shall be respected.

Legal basis

Article 1087 of the Civil Code of the People's Republic of China.

In the event of a 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.

Article 1084.

The relationship between parents and children is not extinguished by the divorce of the parents. After divorce, the children are still the children of both parents, regardless of whether they are raised directly by the father or mother.

After divorce, parents still have the right and obligation to raise, educate and protect their children.

In the event of a divorce, children under the age of two shall be raised directly by their mothers. For children who have reached the age of two, and the parents fail to reach an agreement on the issue of child support, the people's court is to make a judgment based on the specific circumstances of both parties and in accordance with the principle of the best interests of the minor child. Where children have reached the age of 8, their true wishes shall be respected.

Legal analysis: The divorce property shall be distributed by the parties through negotiation, and the court will make a judgment if the negotiation fails. After the divorce, if the child is breastfeeding, the mother will generally raise the child, and if the child has passed the lactation period, the two parties will negotiate who will raise the child, and if the negotiation fails, the French court will make a judgment.

Legal basis: Civil Code of the People's Republic of China

Article 1076: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 bad habits such as gambling and drug addiction that they have repeatedly taught and not changing;

4) 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 the agreement fails, the people's court shall 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.

There are two options for divorce, the first is a divorce by agreement, and the second is a divorce by litigation. In the case of divorce by agreement, as long as both parties agree, bring the marriage certificate, household registration book, ID card, divorce agreement, ** these materials, and go to the civil affairs bureau where either party's household registration is located to register the divorce. If you just want to divorce and the other party does not agree to divorce, you can only divorce by litigation, but litigation divorce takes a long time, the procedure is complicated, and if there is no statutory divorce, the possibility of the court ruling divorce is very small, and a second lawsuit is needed to divorce the marriage (statutory divorce situation:

Domestic violence, abandonment, abuse, drug abuse, gambling, bigamy, imprisonment, emotional discord and separation for more than two years, physical defects or diseases that are difficult to **, etc.). The two parties can negotiate on the custody of the child, if not, the two parties can sue the court on the custody of the child, and the court will make a judgment according to the actual situation of both parties, such as living environment, working conditions, economic income, educational background, age of the child, etc. Specifically, the court will take into account the working hours of both men and women, their economic income, housing conditions, time spent with their children, whether their family members can help take care of them together, and their educational background.

The special circumstances here refer to long-term domestic violence, abandonment, child abuse, drug abuse, gambling habits, etc. The ownership and division of property is related to the nature of the property. Generally, the personal property before marriage belongs to the individual, and the joint property of the husband and wife is jointly divided.

When dividing the joint property of the husband and wife, the man and woman shall first negotiate and settle the matter, come up with a plan for the division of property, and then the court shall examine and confirm it;If the man and woman cannot reach a settlement through negotiation, the court will first propose a division plan so that the man and woman can reach an agreement on the division of property on the basis of mutual understanding and mutual concession. If a mediation agreement is still not reached, a judgment will be made in accordance with law. The court will follow the following principles when dividing property:

1. The principle of respecting the wishes of the parties. When dividing the joint property of husband and wife, the true and lawful wishes of both husband and wife shall be respected. 2 The principle of equality between men and women.

3. The principle of taking care of the innocent party. In divorce cases arising from acts such as bigamy, adultery, abuse, or violence against the other party and their relatives, due consideration should be given to the innocent party when dividing the joint property of the husband and wife. 4 The principle of taking care of the interests of the woman and the children.

5. The principle of conducive production and convenient life. 6. The principle of not harming the interests of the State, the collective and others. How to divide the specific division and how much each party divides must be determined according to the specific property situation.

Specifically, you can refer to the following legal opinions: 1. There are two ways to divorce through negotiation and litigation, if it is a divorce by agreement, after negotiation between the two parties, go to the original marriage registration authority or the civil affairs department of the place of residence of either party to go through the divorce procedures and obtain the divorce certificate with the divorce agreement, marriage certificate and ID card of both parties

If the negotiation fails, you can only sue. The lawsuit must be filed in the court where the defendant is registered or where the defendant has resided for more than one year.

4. In terms of custody, in accordance with the principle that the maintenance of the parent is beneficial to the growth of the child, the court will comprehensively consider the child's current living status, the work income and moral aspects of both husband and wife, and whether the child has been raised by one of the parents when determining the custody to judge.

Children under the age of 2 are generally given to the mother, and children over the age of 10 are given the opinion of the child. If there are two children, one child is raised by one person as a general rule.

The parent who does not have a child should pay child support, which is generally 20-30% of the income of the parent who is not raising the child. Child support includes living expenses, education expenses, medical expenses, etc. The specific maintenance fee is determined based on the local standard of living and the actual living expenses of the child.

5. 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.

6.According to the law, when there is domestic violence, when the injured party divorces, he can request compensation from the domestic violence party, including compensation for material and moral damages, and take appropriate care of the injured party in the division of property!

Pre-marital property is not divided into two parts, and the joint property of the husband and wife is generally divided equally during the existence of the marital relationship, and the woman is taken care of and the children are raised.

Children under the age of 2 are generally raised by the woman; If there are statutory circumstances over the age of 2, priority may be given to custody; Children over the age of 10 should be considered.

Several Specific Opinions of the Supreme People's Court on the Handling of Child Support Issues in Divorce Cases by People's Courts.

1. Children under the age of two generally live with their mothers. In any of the following circumstances, the mother may live with the father.

1) Suffering from incurable infectious diseases or other serious diseases, and the children are not suitable to live with them; (2) The father requires the child to live with him/her; (3) The child is unable to live with the mother due to other reasons.

2. Where both parents agree that a child under the age of two lives with the father and there is no adverse impact on the healthy growth of the child, it may be permitted.

3. For children over the age of two years, both the father and the mother request to live with them, and one of the following circumstances may be given priority:

1) Have undergone sterilization or have lost their fertility due to other reasons; (2) The child has lived with the child for a long time, and changing the living environment is obviously detrimental to the healthy growth of the child; (3) There are no other children, and the other party has other children;

4) The child lives with him/her, which is beneficial to the child's growth, but the other party suffers from an infectious disease or other serious disease that cannot be cured for a long time, or has other circumstances that are not conducive to the child's physical and mental health, and it is not suitable to live with the child.

4. The conditions for the father and the mother to raise the child are basically the same, and both parties require the child to live with the child, but if the child has lived alone with the grandparents for many years, and the grandparents request and have the ability to help the child take care of the grandchild or grandchild, it may be considered as a priority condition for the child to live with the father or mother.

5. In the event of a dispute between the parents over the age of 10 over that a minor child over the age of 10 should live with his or her father, the child's opinion shall be taken into account.