For example, the agreement stipulates: "Both parties agree to divorce; The daughter is raised by the woman; The property of both parties has been divided and both parties have no objection to this. "
The issue of child support is not controversial, and even if it is controversial, it can be easily resolved through the court. However, there is a big loophole in the property issue. "Property has been divided" means that the two parties have reached an agreement on the amount of property, division scheme and distribution quantity, and the disposal has been completed. However, what property and how to divide it are not reflected in the agreement. In this way, there will be two opposing views:
First, since the division of property has been completed, it means that there is no need to divide the property, and whoever has the name will own it;
Second, since there is no clear agreement on the specific items and disposal methods of property, it should be regarded as unclear and indivisible and should be divided according to law.
Because of the great controversy, it is difficult to negotiate, so the general solution can only be resorted to the court.
2, divorce agreement, some general terms are too broad, which may hurt vulnerable groups.
For example, the agreement stipulates that "other property under the names of both men and women belongs to each other" or "there is no other property dispute between men and women". In general, the agreement signed by both parties at the time of divorce by agreement is based on their understanding of each other's property at the time of signing. However, after the divorce, one party finds that the other party has hidden property or deposits, but according to this clause, it is very likely to lose the chance of winning the case. So this clause is risky.
3, the divorce agreement, the agreement and handling of the loan house.
Generally speaking, as long as the husband and wife reach a divorce agreement on the division of real estate and change the main lender, the bank will generally agree and cooperate with the loan contract change procedures. However, some couples have a long loan period, such as a repayment period of 30 years and a high monthly repayment amount, such as more than 4,000 yuan. The monthly salary of the changed borrower is less than twice the loan amount. Unless the parties provide another guarantor or take other insurance measures, banks will generally not agree to change the main lender or reduce the co-mortgagor. Therefore, couples should pay attention to whether the bank agrees to change the main lender or reduce the number of mortgagors before dividing the property by agreement.
In addition, in the process of bank loan change, both parties are generally strictly required to be present, and one party refuses to go through the change procedures. If one party is not present, it may entrust an agent (including a lawyer) to handle the alteration formalities, and the relevant power of attorney must be notarized.
If it does not involve bank loans, the parties go to the real estate trading center to handle the formalities of property right change, and the real estate trading center generally requires both husband and wife to be present. Therefore, the signing of divorce agreement is important, but the implementation of divorce agreement is more important. After divorce, both sides should be honest and cooperate with each other. But many times, honesty is just empty talk. After divorce, there is often resentment between men and women, and there are many cases where one party fails to fulfill the divorce agreement. Therefore, the divorce agreement should specify the punishment measures for one party's failure to fulfill its obligations, so as to urge the obligor to fulfill his obligations. For example, the penalty for not paying the house payment within the time limit and the legal consequences of not cooperating with the formalities for changing property rights.
Finally, I would like to remind you that according to the Official Reply of State Taxation Administration of The People's Republic of China, People's Republic of China (PRC) on whether to levy deed tax on the change of house ownership after divorce (Guo Shui Han [1999] No.3965438 +065438+June 3, 0999), husband and wife * * * have a house and * * have property. Because of the division of husband and wife's property, the original property right of the house belongs to one party, which is the change of the right of the house, not the transfer of the property right of the house taxed by the current deed tax policy. Therefore, after the divorce, the deed tax is not levied on the original property owner. Therefore, if the property owner changes because of the divorce of husband and wife, there is no need to pay deed tax. This can avoid the deed tax of 65438+ 0.5%-3% of the house price.
4. Divorce agreements, agreements and handling of bank deposits.
In husband and wife's life, the general bank deposits are mainly in the name of one party, while the other party, especially some men who don't care too much and are busy with their careers all day, often don't know which bank their savings are in, or even how much money they have at home. In order to divide property transparently and prevent property from leaking, the divorce agreement also needs to specify the amount of deposit, whose name and which bank. If the payer fails to perform his obligations after the divorce, the other party may bring a lawsuit to the court in time and find out the withdrawal of the deposit and the whereabouts of the money in time according to the deposit information recorded in the divorce agreement.
In many divorce agreements, the handling of bank deposits is often agreed as follows: "The deposits in their respective names belong to their own". We think there are good and bad agreements, and the advantage is that writing saves effort and ink; The disadvantage is that if one party still has deposits unknown to the other party, even if the other party knows that one party still has bank deposits after the divorce, it is difficult to ask for division. After all, it has been agreed that "the deposits in their respective names will be owned by them at the time of divorce". So such an agreement is beneficial to those who have money and don't report it. Therefore, such an agreement may actually lead to unfair division of marital property. Therefore, in order to achieve the goal of fairness and justice, we still suggest that both husband and wife list the bank deposits in their respective names in detail, including the bank, account name, account number, deposit balance, currency, etc. By the time the divorce agreement is signed. In this way, if one party finds that the other party's deposit is not recorded in the divorce agreement after divorce, it can demand division or even demand that the deliberately concealed party get less points or even no points through litigation.
5. Divorce agreement, agreement and stock handling.
In the divorce agreement, the two parties generally only agree on the total market value of the shares under one party's name. In this way, if one party fails to fulfill its payment obligations and the other party brings a lawsuit to the court, it will be more troublesome and difficult to inquire because it does not know the specific stock market information of the other party. Therefore, in the divorce agreement, if the shareholder code, account number, and which stock exchange to open an account in, it will greatly save unnecessary trouble.
In addition, in reality, people are often invited to buy stocks on their behalf, that is, one spouse buys stocks with the same property instead of opening an account in his own name, but uses the funds of both spouses to trade stocks in the name of others. Many parties have noticed this in the divorce agreement, and clearly agreed that this share capital is the same property. However, the court cannot directly adopt such an agreement. If the agent does not recognize the relationship between stock trading or account lending, or has any objection to the amount of funds and the types of stocks, the court will support the request of both husband and wife. Therefore, in the divorce agreement, it is absolutely necessary to make the necessary provisions on the signature of the agent, and even make a separate agreement on the stock signed by the three parties.
6. Divorce agreement, company equity agreement and handling.
More and more marriage disputes involve the division of company equity. If one or both of the husband and wife have shares in the company, the usual practice is that the husband and wife agree that one party holds shares and give the other party compensation for consideration. If so agreed, both parties only need to agree and accept the price and payment method. However, if the husband and wife decide to pay part or all of the company equity owned by one party to the other party through agreement, they must also comply with the relevant provisions of the Company Law.
The Supreme People's Court's "Interpretation on Several Issues Concerning the Application of Marriage Law (II)" stipulates that the trial of divorce cases involves the joint property of husband and wife, and the amount of capital contributed by one party in the name of a limited liability company and the other party is not a shareholder of the company shall be handled separately according to the following circumstances:
(1) Both husband and wife agree to transfer part or all of the capital contribution to the spouse of the shareholder, and if other shareholders explicitly give up the preemptive right with the consent of more than half of the shareholders, the spouse of the shareholder may become a shareholder of the company;
(2) After the husband and wife reach an agreement on the transfer share and transfer price of the capital contribution, if more than half of the shareholders do not agree to the transfer, but are willing to buy the capital contribution at the same price, the people's court may divide the property obtained from the transfer of the capital contribution. If more than half of the shareholders do not agree to the transfer and are unwilling to purchase the capital contribution at the same price, it is deemed that they agree to the transfer, and the spouse of the shareholder can become a shareholder of the company.
7. Handling of divorce agreements, agreements and obligations to pay money.
Generally, in the divorce agreement, the husband and wife only agree on the amount and payment period of each other. For example, the man pays the woman RMB100000 yuan within one month after completing the divorce procedure. However, this agreement does not punish the party who intentionally delays the performance. Therefore, it is suggested to add a sentence: "If the payment is not made on time, the penalty interest will be charged at twice the bank loan interest rate in the same period". In this way, if the payer fails to perform on time, he will feel the pressure of penalty interest, thus achieving the purpose of punishment.
8. Divorce agreement, agreement and handling of child support.
Generally, it can be agreed that alimony will be paid until the child is eighteen or lives independently. According to the judicial interpretation (1) of the Supreme Court, parents are not obliged to pay alimony to their children after they finish their high school education. However, from the reality, they can't live completely independently when they are in college or even after graduation, and parental support is quite common. We believe that in the absence of an agreement on the parental rearing period, the parental rearing period should be applied after the completion of the statutory high school education stage; If parents have a clear agreement on the period of support, the agreement of parents shall apply. For example, parents agree to pay alimony until their children graduate from college. If one of them refuses to perform after the child goes to college, the child has the right to ask for alimony.
In practice, many parties, especially women, want to pay child support in one lump sum. According to the relevant judicial interpretation and practice, this request of the parties is often not supported by the court. The court's decision or mediation to pay child support in one lump sum often meets the following conditions:
1, one party requires a one-time payment;
2. The other party agrees to pay in one lump sum;
3. The other party is fully capable of one-time payment;
4. Do not harm the rights and interests of others.
In other words, if the other party does not agree to pay the child's alimony in one lump sum, it is difficult for the court to support one party's claim for paying the alimony in one lump sum.
9. Handling of divorce agreements, agreements and visitation rights.
According to the marriage law, a childless spouse has the right to visit his children after divorce, and a spouse with children and his family shall not obstruct it. In the divorce agreement, the right of visiting is often ignored by the parties. It is simply stated in the divorce agreement that the child is raised by a certain party, and there is not much clear agreement on the time, place and method of visiting, which leads to the need for the court to reconfirm once a dispute arises after divorce, which increases the economic cost and time cost of the parties. When our marriage lawyers draft divorce agreements for the parties, they often write visitation rights like this:
The married daughter/son (born on) of both parties lives with the woman, and the man pays the maintenance fee of RMB yuan every month until he lives independently. The man has the right to visit his daughter twice a month, and he can visit her at the appointed place on a single Friday every month according to her wishes. In case of special circumstances, the visiting time and method shall be agreed by both parties.
The two sides can also agree that the other side will pick up the children on Friday and return them on Saturday or Sunday. It may be better to specify the specific pick-up place and mode.
Generally speaking, don't visit too many times a month. If visits are too frequent, it will bring a lot of inconvenience to both sides and affect the normal life and study of children. Children 10 years old or older, we can also listen to their opinions and take their independent will as the transfer.
10, divorce agreement, the agreed handling of registered permanent residence.
The migration of household registration after divorce is also a difficult point in divorce cases. For example, after divorce, the woman's household registration is still in the house where the man owns the property. According to the provisions of the divorce agreement, after handling the divorce agreement for a period of time, the woman should move out of the household registration, and the woman refused to move out, causing certain losses or troubles to the man. According to the current household registration management regulations and the court's trial practice, the court generally does not accept infringement cases with compulsory household registration as the litigation request, but refers the parties to the public security management department for settlement on the grounds that the centralized management organ is the public security organ. Public security organs often reply that this kind of request does not conform to the legal provisions of forced relocation, so it is often difficult to handle.
Although such disputes account for a small proportion in divorce cases, they often occur because of the lack of effective relevant regulations, which leads to nowhere for the parties to complain. So, how to prevent such disputes? We believe that there is another way, that is, it is clearly stipulated in the divorce agreement that the party who has the obligation to move out will not perform the obligation to move out. The biggest problems brought by refusing to move out of the household registration are psychological troubles and the inconvenience of house transfer. Might as well stipulate in the divorce agreement:
If the woman can't move out of her household registration within three months after going through the divorce formalities, she shall pay RMB yuan to the man for each day overdue; If the house price is affected because the woman's account cannot be moved out when the man transfers ownership, the woman should compensate the man for the price difference.
It should be noted that overdue compensation should not be written as liquidated damages, because household registration has a personal nature, and it may be difficult to write it as liquidated damages if the court supports it. It is reasonable to write compensation for inconvenience, and it does not violate the law. The possibility of court support is relatively large.
In addition, if the house is transferred by the man and the house price is affected because the woman's account has not moved out at the time of transfer, the specific amount of influence shall be clearly agreed by the buyer and the seller in the house purchase contract, and the woman shall be informed in writing.
Under normal circumstances, with such an agreement, the party who has the obligation to move out will actively cooperate with the other party to move out of the account in the shortest time, and there is no need to go to court. Of course, if the party who has the obligation to move out refuses to join the delay compensation clause, the other party must measure whether it is willing to bear legal risks. If a lawsuit is filed, the court may add a sentence to the judgment that "the woman should move out of her household registration within 30 days after divorce", but the execution of the effective judgment is often difficult to solve. Of course, if the woman has the conditions to move out, it is relatively easy to implement.
Bian Xiao added: The specific process of handling the divorce procedure is agreed by both parties.
(1) The parties submit certificates and relevant supporting materials;
(2) The marriage registrar explains the conditions for registering divorce in the marriage law and asks about the divorce will and the contents of the divorce agreement;
(3) Both parties shall fill in the application for divorce registration, and the signature of the column "Declarer" in the application for divorce registration must be completed by the declarant in front of the Commissioner for Oath;
(4) Both husband and wife personally sign the divorce agreement, and the marriage registrar is the supervisor. One copy of the agreement is held by both husband and wife, and one copy is filed in the marriage registration office. Under normal circumstances, both parties to the divorce agreement should make preparations in advance. There is no uniform requirement for printing or handwriting. It's best to leave the signature area vacant and sign it on the spot. It should be noted that, for example, in Shanghai, some district and county marriage registration authorities require that the divorce agreement of the parties must be written by themselves and cannot be printed, such as Minhang District and Putuo District. Therefore, before going through the divorce registration, it is best to contact the marriage registration authority of the district and county civil affairs bureau, ask about the materials you need to bring, and make all preparations to avoid wasting time.
(five) the marriage registrar shall review the documents submitted by the parties, the declaration of application for divorce registration and the divorce agreement, and fill in the divorce registration review form and divorce certificate if they meet the divorce conditions.
(6) The marriage registrar issues a divorce certificate, and when both parties are present:
A. verify the names, dates of birth and divorce intentions of both parties;
B inform both parties of the legal relationship after receiving the divorce certificate, the relationship with their children after divorce, their due obligations, the handling of disputes over divorce agreements and legal remedies;
C witness the personal signature of the party in the column of "signature or fingerprint of the party" in the "divorce registration review processing form"; If the parties can't write their names, they should press their fingerprints;
D affix a strip seal on the marriage certificate, indicating that "the two parties are divorced and the certificate is invalid". The cancelled marriage certificate will be returned to me.
E. Issue divorce certificates to both parties respectively, and both parties shall sign the service receipt after receiving the divorce certificate and notification. The registrar announced to both parties that he would get a divorce certificate and dissolve the relationship between husband and wife.
The procedure of divorce by agreement can generally be completed on the day when the Civil Affairs Bureau fills in the relevant materials. The time required to reach the court depends on the arrangement of the presiding judge, generally 15 days to 6 months.
If the child is a man, the woman also needs to pay alimony, which can be paid in one lump sum to 18 years old or in monthly installments (in this case, both parties will negotiate). Rural areas are generally not limited to the minimum monthly 150 yuan, and towns are generally not limited to the minimum monthly 300 yuan.