Can a husband and wife divorce during the period of being sued for debt? Husband and wife are listed as * * * co-defendants, and it is ok for both parties to divorce, but it does not exempt the husband and wife from joint liability for paying off debts.
The husband has a debt lawsuit, can the wife apply for divorce? Divorce does not affect, but the creditor's rights and debts arising during the marital relationship between husband and wife need to be borne even if divorced.
Whether the debt litigation without contract and debtor's signature can be successful 1, and whether the debt litigation without contract and debtor's signature can be successful depends on whether there is evidence to prove the plaintiff's claim;
2. Legal basis: Article 2 of the Supreme People's Court's Provisions on Evidence in Civil Proceedings, the parties have the responsibility to provide evidence to prove the facts on which their claims are based or to refute the facts on which the other party's claims are based.
If there is no evidence or the evidence is insufficient to prove the facts identified by the parties, the parties with the burden of proof shall bear the adverse consequences.
How should creditors fight debt lawsuits? Get ready for a debt lawsuit:
First, how should creditors fight debt lawsuits?
1. Confirm the defendant: If the husband and wife are in the same debt, have you sued both husband and wife? If the debtor is a company, whether the shareholders have made false capital contribution or made false capital contribution, crossed the bridge or evaded capital contribution, and whether the shareholders have abused the independent status of the company as a legal person and the limited liability of shareholders, thus causing serious damage to the creditors, the shareholders shall be added as defendants. The purpose is to expand the repayment subject and improve the repayment coefficient.
2. Choosing the court of jurisdiction: Debt cases are generally tried by the court where the defendant lives, or by the court where the defendant has his habitual residence (continuous residence for more than one year). For debts arising from the contract, you can also choose a court that is beneficial to you under the guidance of the court lawyer in the place where the contract is performed, so as to facilitate the execution of the judgment. If there are multiple defendants, choose one defendant and choose the court that is beneficial to you.
3. Appeal: A civil appeal refers to a written litigation request made by a citizen, legal person or other organization to the people's court to request the people's court to make a fair judgment according to law when they think that their civil rights and interests have been infringed or have disputes with others.
4. According to the first paragraph of Article 64 of the Civil Procedure Law of People's Republic of China (PRC), "the parties have the responsibility to provide evidence for their own claims", creditors should submit necessary evidence to the court when suing or responding to the lawsuit, otherwise their claims may not be supported by the court and bear the consequences of losing the case.
2. What evidence should be prepared for debt litigation?
1. Provide written evidence such as IOUs, IOUs or loan contracts that can prove the relationship between creditor's rights and debts. If there is no documentary evidence, it shall provide the time, place and amount of the relationship between creditor's rights and debts, and provide irrelevant witness testimony or evidence clues.
2. If there is a guarantor, provide the name, gender, age, work unit and address of the guarantor; If the guarantor is a legal person, the name, legal representative and address of the legal person unit shall be provided. If there is a guarantee agreement, a written guarantee agreement or guarantee clause shall be provided.
3. If there is collateral, the name, quantity, price, storage place and the name of the custodian of the collateral shall be provided.
4. Provide evidence that the debtor fails to perform or fails to fully perform his obligations within the time limit and claims rights during the limitation of action.
5. Regarding the corresponding evidence with the defendant * * *, if the other party of Lev and the defendant are * * *, a certificate of marriage relationship shall be submitted; Evidence of shareholders' insufficient capital contribution, withdrawal of capital contribution, abuse of legal person's independent status, and shareholders' limited liability.
Do two unmarried couples need each other to pay their personal debts? Your marriage law and related judicial interpretations have the following provisions:
1, pre-marital debt of husband and wife
Article 23 of Interpretation II of Marriage Law stipulates that the people's court will not support the creditor's claim to the debtor's spouse for personal debts incurred by one party before marriage. But the creditor can prove that the debt is used for married families to live together. Therefore, in principle, pre-marital debt belongs to personal debt and is borne by the debtor personally. However, if the creditor can prove that the debt is used for the common life of the family, it should be regarded as the husband and wife in debt.
2. Debts incurred by both parties during the existence of the relationship between husband and wife
Article 41 of the Marriage Law stipulates: "At the time of divorce, the debts incurred by the husband and wife living together should be paid jointly. * * * If the same property is not paid off, or the property belongs to each other, it shall be paid off by mutual agreement; If the agreement fails, it shall be decided by the people's court. " It can be seen that the debts incurred by husband and wife in the same life at the time of divorce are legal debts, and both husband and wife should bear the obligation to repay. If the same property is not enough to pay off debts, both parties shall determine it through consultation; if negotiation fails, the court shall determine their respective proportions. However, it should be pointed out that the agreed settlement and judgment commitment here are only binding on both husband and wife, and cannot be against a third person. That is to say, if the debtor sues for repayment obligations, it should still be regarded as the same debt, and the spouse who actually undertakes repayment obligations has the right to ask the other party to share the corresponding share according to the agreement or court judgment.
3. Debts incurred in the name of the individual during the existence of the husband-wife relationship.
Article 24 of the Supreme People's Court's Interpretation on Several Issues Concerning the Application of the Marriage Law of the People's Republic of China (II) stipulates: "Where a creditor claims rights for debts incurred by one of the spouses in his own name during the existence of the marriage relationship, it shall be regarded as debts of the spouses. However, unless one of the spouses can prove that the creditor and the debtor have clearly agreed to be personal debts, or can prove that it belongs to the circumstances stipulated in the third paragraph of Article 19 of the Marriage Law. "
Paragraph 3 of Article 19 of the Marriage Law stipulates that "the property acquired by husband and wife during the marriage relationship shall be agreed to be owned by each other, and if a third person knows the agreement, it shall be paid off with the property owned by husband and wife".
The above two provisions show that the debts incurred by one party in the name of marriage relationship should, in principle, be recognized as joint debts of husband and wife, and should be jointly repaid by husband and wife. However, if one of the husband and wife can prove that the debt is really the debtor's personal debt or the creditor knows that the husband and wife have agreed to manage the property separately, then the parties to the marriage relationship without debt can resist the creditor's request.
From the perspective of judicial practice, other debts that should be borne by individuals during divorce mainly include debts arising from personal illegal acts and exclusive personal debts without the consent of the other party (such as debts arising from one spouse doing sex-change surgery without authorization).
Due to the complexity of debt involved in marriage cases, it is suggested that you choose to consult a professional lawyer before taking action to avoid adverse consequences for you.
Is the personal nominal debt of husband and wife the same debt? The personal debt of husband and wife is 1. According to the provisions of the Marriage Law, the husband and wife agree that both parties will pay off their debts by themselves, except those who evade debts.
2, without the consent of both husband and wife, without funding the debts of relatives and friends who have no obligation to support and support.
3. Without the consensus of both husband and wife, they raise funds to engage in economic activities separately, and their income will not be used for the debts incurred by * * *.
4. Other debts that should belong to individuals, such as personal debts before marriage, debts arising from unreasonable expenses of one party, etc.
The latest judicial interpretation of marital debt
1. Debts jointly signed by both husband and wife or ratified by one of them afterwards. * * * indicates the same meaning, which should be recognized as the debt of husband and wife.
2. The people's court shall support the debts incurred by one of the husband and wife in their own name for the daily life of the family during the marriage relationship, and the creditors claim their rights on the grounds that they belong to the same debt of husband and wife.
3. The people's court will not support the debt incurred by one of the spouses in his own name during the marriage relationship that exceeds the daily needs of the family. If the creditor claims the right on the grounds that it belongs to the same debt, the people's court will not support it, except that the creditor can prove that the debt is used for the life, production and operation of the husband and wife, or because the husband and wife have the same meaning.
Personal debts incurred by husband and wife during the relationship, whether during the marriage or after divorce, or the debtor's disappearance or death, shall be borne by himself, and the other party has no obligation to pay off the debts. Of course, if there is a supplementary agreement between the two parties in the future, the supplementary agreement shall prevail.
What if the husband and wife are summoned by the court? You'd better go to the court to find out the situation. In addition, the debts of husband and wife during the marriage are regarded as the debts of husband and wife. The exception is that there is an agreement between your husband and wife that you are responsible for economic independence, and creditors can only be exempted if they know this agreement.
What debts belong to one spouse's personal debts? -lawyers talk about divorce XIX
(Author: Zhang Zhisheng, Beijing lawyer)
The personal debt of one spouse refers to the debt that the borrower undertakes to repay, which has nothing to do with the spouse. In divorce disputes, the identification of personal debts and debts with * * * often becomes one of the focuses of disputes between the two sides. The following is a systematic discussion on the identification of personal debt.
First, personal debt before marriage
Second, personal debt after marriage.
1. Both parties agree that this is a personal debt.
This kind of agreement cannot be aimed at avoiding debts. Unless otherwise agreed by the third party, a bona fide third party may be jointly and severally liable with both parties, and the debtor's spouse may claim compensation from the debtor after paying off the debt.
2, the debtor and the creditor agreed for personal debt.
This agreement is between the debtor and the creditor, and has nothing to do with the debtor's spouse. It is difficult to prove that the debtor's spouse is needed at the time of identification. If there is no evidence, the debt incurred in the name of an individual during marriage is presumed to be the same debt.
3. Personal debts arising from property agreements
During the marriage, both parties agreed that the acquired property would belong to each other, and one of the husband and wife would borrow money in his own name. If creditors know about this agreement, it is personal debt.
4. Paying off debts for aiding relatives and friends without authorization.
Without the consent of the other party, the debt incurred by one party to support or support relatives and friends who have nothing to do with it is the personal debt of the other party.
5. Privately operated (exclusive) debt
If one party raises funds for business privately and the proceeds are not really used for common life, the debts arising from business are his personal debts.
6. One party's illegal debts.
There is no explicit provision in the law. I think this kind of debt should be treated differently: if the illegal income of the offender is used for the same life, it is the same debt, and vice versa, it is a personal debt; If an illegal pedestrian is liable for damages and has no illegal income, his personal property will not be paid off.
In view of incomplete statistics, many of my original articles have been copied 2500 times. These people do not indicate the original author, and some even claim to be original and mark their own names. I'm deeply sorry-reprinting is allowed without payment. I only want the minimum right of authorship in copyright, and these people don't support it. Do you think I should condemn them? Therefore, in the future, I will not inform the plagiarists one by one, but directly notarize the plagiarism and then enter the judicial process. )