The Importance of Collecting Divorce Evidence
Although divorce cases involve whether the relationship between husband and wife really breaks down, child support, property division and many other aspects.
However, in the process of giving evidence, the parties often feel overwhelmed, the evidence is not easy to collect, or they don't know where to start. However, the trial principle of civil litigation is "whoever advocates, who gives evidence". If a party fails to provide evidence that is beneficial to him within the time limit for adducing evidence, he often has to bear the adverse consequences, or his claim cannot be supported by the court. Therefore, how to collect evidence and use it in divorce cases has become a special concern of the parties and even lawyers.
1. Divorce cases caused by third parties account for more than 1/2 of the cases we accept. In the process of handling divorce cases, the innocent party often cannot grasp the conclusive evidence of the innocent party, but is unwilling to stop there. Therefore, it is necessary to investigate and collect evidence that the other party is at fault, and to investigate and collect evidence and preserve the same property. Only when the parties have direct evidence of the other party's extramarital affairs can it be used as a reason to apply for "the innocent party to divide more property".
2. The parties should pay special attention to the investigation and collection of property evidence before bringing a lawsuit or after receiving a court summons.
It should be said that neither the plaintiff nor the defendant is willing to go to court. And "see you in court" is almost always the result of failure to reach an agreement on property division. Therefore, as a plaintiff, we must pay attention to the pre-litigation preparation before prosecution. Because at present, the court can generally give the plaintiff a time limit for proof in strict accordance with the provisions of the Supreme Court on the time limit for proof. If the plaintiff fails to give evidence within the time limit for giving evidence (summary procedure is generally fifteen days or even seven days, and ordinary procedure is generally one month), the court will certainly not take the initiative to tell you that the right to give evidence has been lost, but experienced opposing lawyers will point out in time, which will put the parties in an embarrassing position and even lose the opportunity of property division. This is pathetic. In addition, we must pay attention to the right to apply to the court for investigation and evidence collection. In divorce cases, a lot of property evidence must be collected. For example, bank deposits generally need to be inquired; Statements of stock funds need to be collected by lawyers. Even now, some units investigate employees' salaries, and the internal files of real estate data need to be investigated and collected. Other appraisal reports, such as price appraisal, paternity test, etc. Therefore, it is very important to use evidence flexibly. Otherwise, it will be too late to go to court after the property transfer.
Key points of evidence in divorce proceedings
1. Evidence to prove the qualification of the party (the original defendant).
1. Evidence that the defendant and the plaintiff are husband and wife, such as marriage certificate, marriage certificate, household registration book, ID card, etc.
2. If a de facto marriage is involved, a certificate issued by the neighborhood committee or village committee shall be submitted.
3. If the defendant's whereabouts are unknown, a certificate from the villagers' committee, residents' committee or public security organ of the defendant's domicile or habitual residence shall be submitted.
Second, evidence to prove the breakdown of marriage relationship.
1. If domestic violence is involved, it shall be submitted to forensic experts and witnesses.
2, such as drug abuse, gambling, should be submitted to the neighborhood committee or village committee or public security organs issued proof; Involving administrative punishment or criminal offences, relevant punishment decisions or judgments shall be submitted.
3. If bigamy is involved or a spouse lives with others, a marriage certificate, a child's birth certificate, a household registration certificate, a photo or a certificate issued by a neighborhood committee, a village committee or a public security organ related to the above acts shall be submitted.
4. In case of divorce due to bigamy, cohabitation of a spouse with others, domestic violence or maltreatment or abandonment of family members, the innocent party has the right to claim damages.
3. Evidence to prove that one party is suitable for raising children.
1. If it proves that one party is in good economic condition, it shall submit a payroll or other proof of legitimate income or proof of living conditions.
2. In case of 10-year-old minor children, relevant certificates that the children are willing to live with their parents shall be submitted.
4. Evidence that there is a relationship between * * and property during the marriage relationship.
1. If it proves that there is real estate, submit the real estate license or purchase contract, payment invoice or proof of capital contribution.
2. To prove that there is a bank deposit and apply for court investigation, submit the bank account number; To prove that there are shares and apply for court investigation, submit the shareholder code and capital account number; If there is a vehicle, submit the driving license and license plate number.
3. To prove that the other party owns the equity in the company, it shall submit the company's industrial and commercial registration, capital contribution certificate, etc.
4. To prove that one party has creditor's rights and debts, it must be supported by relevant evidence in addition to the receipt.
5. To prove that there is an agreement on the property of both husband and wife, relevant evidence such as agreement must be submitted.
6. If the application for court investigation and evidence collection cannot provide the above clues, the application shall be rejected according to law.
5. If there is a specific claim amount, a calculation list of the claim amount shall be submitted.
In addition: 1. Proof of marriage relationship (marriage certificate, ID card, household registration book or certificate of marriage registration department).
2, there have been disputes and have been handled or divorce proceedings, should provide the people's court verdict, mediation, ruling and other legal documents, or the street mediation committee and the relevant units issued proof;
3. Property owned by husband and wife (including the property acquired, inherited and donated after marriage, and the monthly income of both parties), personal property before marriage (the source and value of the property, the service life of the husband and wife) and property owned by family (provide bank deposit account, invoice and other relevant documents, indicating the variety, original value, and.
4. The medical records of the hospital, the certificate of the neighborhood committee and the forensic identification shall be provided for the disputes between husband and wife caused by fighting and injury.
5. Children (indicate whether they are legitimate children, stepchildren or adopted children. Recall the basic situation of the dead children, the children put out for adoption, the current children's household registration location, the certificate of the adopter, and the opinions on raising children.
6. Family housing (who owns it, * * * owns it or rents it, borrows it), and opinions on housing arrangement after divorce (immigration destination, donee's opinions, unit certificate, etc.). );
7. If a third party is believed to be involved, provide the name and basic information of the third party and relevant evidence, witness's name, work unit and address, etc.
8, there are physical defects, provide forensic identification or hospital identification. Suffering from mental illness, dementia, sexually transmitted diseases, etc. It is necessary to provide evidence such as the time of illness, hospital diagnosis and treatment certificate, and whether there is any concealment when getting married.
9. Proof materials that can prove all or part of the facts of the case.
The original and two copies of the above evidence shall be submitted.
If it is a foreign language text, a Chinese translation shall be submitted at the same time. If the evidence comes from abroad, Hong Kong, Macao and Taiwan, it must be certified by China's embassy or consulate in that country or a Hong Kong, Macao and Taiwan law firm recognized by China.
How to obtain evidence for divorce?
1. Provide marriage registration certificate. If one party's whereabouts are unknown and the other party asks for a divorce, it shall provide proof that the missing party left when his relatives and friends did not know his whereabouts. If one party files for divorce without going through the registration formalities, it shall provide proof of age at the time of cohabitation and reasons for not registering.
Second, provide witness testimony of basic marital status or other relevant certification materials. Free love, arranged marriage or business marriage. Are there any twists and turns during the engagement? Is it the first marriage or remarriage?
3. Provide evidence of feelings after marriage, whether feelings after marriage are good or bad or general, whether they are separated, when and why they are separated.
Fourth, provide proof materials and witness clues of the main reasons for divorce. If one party has physical defects or mental illness, it shall provide the diagnosis certificate of hospitals and psychiatric hospitals at or above the county level and the specific time of illness. If one party is sentenced for violating the law or requires a divorce through reeducation through labor, the court judgment and the place of reeducation through labor shall be provided. If one party divorces due to the intervention of a third party, it shall provide the third party's name, unit, address and other relevant certification materials.
5. Provide the number of children, their names, sex, date of birth, whether they are born in wedlock, born out of wedlock or adopted, proof of stepchildren, proof of health status, and proof that adult children cannot live independently.
6. If the woman is pregnant, the date of pregnancy should be stated, and the diagnosis certificate issued by the hospital should be provided.
7. Provide a list of personal property, marital property or other family members' property before marriage. For disputed property, proof materials such as the source and acquisition time of the property, such as invoices, should be provided.
Eight. Provide evidence of economic income and expenditure of both parties, whether there are other burdens, whether there are creditor's rights and debts, if there are creditor's rights and debts, provide evidence such as IOUs, and the name, address or work unit of the debtor or creditor. If there is any deposit, the name, account opening date, account number and deposit amount of the savings office shall be provided.
9. Provide proof of housing situation. Public houses should provide the name of the housing property unit, and private houses should also provide the housing property certificate.
10. If a divorce lawsuit has been filed before, it shall be stated whether to withdraw the lawsuit or mediate, or whether to prohibit divorce. The original or copy of the original judgment, mediation or ruling shall be provided.
Methods and skills of collecting divorce evidence
In divorce cases, there is often a lack of evidence about dowry, bride price, marital property, creditor's rights and debts between relatives, keeping mistresses or even bigamy, which leads to great controversy. Whether we can obtain sufficient and effective evidence and find out the case often has a decisive influence on the outcome of the case.
In a recent divorce case between Lei Mou and Chen Mou, the author, as the agent of Lei Mou, the plaintiff's wife, knew that Lei Mou's statement that her husband Chen Mou and his mistress lived together for a long time in the name of husband and wife (and had a daughter) was highly credible, but it was difficult to obtain relevant evidence and lacked evidence to support it.
Without this evidence, it is not only difficult to prove the fact that Chen Mou married Xiaosan, but also impossible for his wife to share the same property with the innocent party and claim damages. Even the reasons for divorce are not sufficient. There is no doubt that this evidence has become the key to the whole case, and it is also the focus of evidence investigators.
Many things happen. After being searched by many relatives who started Lei, he finally found the hiding place with his mistress-a rented house.
Although people have been found, how to obtain evidence is a headache: although Chen Mou's behavior has constituted a crime of bigamy, his wife Lei Mou does not want him to be sentenced, but only wants him to bear civil liability. Then, it is obviously not the best way to let the public security department come forward to investigate and collect evidence (if the public security department comes forward, it will definitely report bigamy). Finally, the author asked Lei to report to the family planning department where the rented house is located in the name of violating family planning (the daughter born to his second wife certainly has no legal procedures). As family planning is the basic national policy of our country, all localities pay close attention to it. The family planning department immediately sent someone to find out the fact that Chen Mou illegally cohabited with his mistress and violated family planning, and made a detailed record. After the author obtained the transcript of the family planning department according to law, the plaintiff undoubtedly had the ironclad certificate issued by the government. Since then, the case has come naturally and the plaintiff has obtained satisfactory results.
In order to "divorce without loss" or prevent the other party from "taking advantage of divorce", both parties to the divorce must have a large number of legal and effective evidence submitted to the court. Such as: * * property evidence, domestic violence, affair fault, gambling, drug abuse, bigamy and other evidence that affects the feelings of husband and wife.
According to the provisions of Article 63 of the Civil Procedure Law, divorce evidence can be divided into the following categories:
1. Documentary evidence refers to written materials recorded or expressed in the form of words, symbols, graphics, etc., which can prove the characteristics and facts of a case. Such as: real estate license, share certificate, love letter, diary, hotel invoice for opening a room outside, etc.
2. Material evidence refers to everything that can prove the true situation of a case. Such as: condoms for adultery, toilet paper (towel), lipstick on underwear, semen on underwear and related tools.
3. Audio-visual materials refer to the sound and images reflected by audio tapes, video tapes or information stored in computers, which prove the facts of a case. For example, photos, videos and recordings taken by spouses and lovers together.
4. Witness testimony refers to the oral or written statement made by the witness to the people's court on the facts of the case he knows. For example, what illegal behavior of the spouse was observed by relatives, friends, colleagues and neighbors.
5. The statement of the parties refers to the statement made by the parties to the people's court on the facts of the case. For example, the transcript of the conversation between the parties and the judge.
6. Appraisal conclusion refers to the scientific judgment conclusion made by the appraisal department after studying the specialized issues raised by the parties and the people's court with professional knowledge. If the court considers it necessary to identify specialized issues, it shall refer them to the identification department for identification. The appraisal department and appraiser shall put forward a written appraisal conclusion and sign or seal the appraisal book.
7. Inspection records refer to the records made by inspectors during on-site inspection. For example, when the spouse is beaten or poisoned, the public security personnel report the inquest record after reporting the case.
If you want to divorce, you don't lose money. Divorce evidence determines whether the lawsuit will win or lose. It is best to ask legal professionals to "investigate and collect evidence", otherwise it is "alarmist" and "empty talk".
From another perspective, including:
1. Evidence to prove the qualification of the party (the original defendant).
1. Evidence that the defendant and the plaintiff are husband and wife, such as marriage certificate, marriage certificate, household registration book, ID card, etc.
2. If a de facto marriage is involved, a certificate issued by the neighborhood committee or village committee shall be submitted.
3. If the defendant's whereabouts are unknown, a certificate from the villagers' committee, residents' committee or public security organ of the defendant's domicile or habitual residence shall be submitted.
Second, evidence to prove the breakdown of marriage relationship.
1. If domestic violence is involved, it shall be submitted to forensic experts and witnesses.
2, such as drug abuse, gambling, should be submitted to the neighborhood committee or village committee or public security organs issued proof; Involving administrative punishment or criminal offences, relevant punishment decisions or judgments shall be submitted.
3. If bigamy is involved or the spouse lives with others, the marriage certificate, child birth certificate, household registration certificate, photos, audio and video recordings or certificates issued by neighborhood committees, village committees and public security organs related to the above-mentioned acts shall be submitted.
3. Evidence to prove that one party is suitable for raising children.
1. If it proves that one party is in good economic condition, it shall submit a payroll or other proof of legitimate income, or proof of living conditions.
2. In case of 10-year-old minor children, relevant certificates that the children are willing to live with their parents shall be submitted.
3. Evidence to prove that one parent has taken care of and assisted in raising children for a long time.
Four. Evidence that * * * owns the same property during the marriage relationship.
1. If it proves that there is real estate, submit the real estate license or purchase contract, payment invoice or proof of capital contribution.
2. To prove that there is a bank deposit and apply for court investigation, submit the bank account number; To prove that there are shares and apply for court investigation, submit the shareholder code and capital account number; If there is a vehicle, submit the driving license and license plate number.
3. To prove that the other party owns the equity in the company, it shall submit the company's industrial and commercial registration, capital contribution certificate, etc.
4. To prove that one party has creditor's rights and debts, it must be supported by relevant evidence in addition to the receipt.
5. To prove that there is an agreement on the property of both husband and wife, relevant evidence such as agreement must be submitted.
5. If there is a specific claim amount, a calculation list of the claim amount shall be submitted.
What is the key evidence to prove extramarital affairs?
According to the provisions of the Gao Gui People's Court, if one party submits the following evidence and the other party raises an objection but there is no evidence to the contrary, the people's court shall confirm its probative force:
1) Original documentary evidence or copies, photos, duplicates and excerpts verified with the original documentary evidence;
(two) the original material evidence or copies, photos and video materials consistent with the original material evidence;
(3) Audio-visual materials obtained by legal means supported by other evidence, or a copy verified with the audio-visual materials;
(four) the parties apply to the people's court to make material evidence or on-site inspection records in accordance with legal procedures. Therefore, videos and photos from legal sources can be used as valid evidence in court, excluding the phone list and bed photos stolen indoors, because the sources of these evidences are illegal. Of course, a list of telephones from legal sources can be used as evidence.
5) Similar to the "guarantee letter" and "apology letter", the extramarital affair was suddenly exposed, and the wrong party hastily wrote the guarantee letter to express repentance, which is an important evidence of extramarital affairs;
6) whoring incidents, etc. Generally, the police are involved and have a police confession;
7) After verifying the extramarital affairs of employees, the company may deal with their life style problems;
8) Letters, short messages, emails, etc. The exchange between the two parties, in addition to written evidence, should be notarized and submitted to the court;
9) Capture behaviors (such as hugs, kisses, etc.) that are more than ordinary friends. ) and collect evidence by taking photos, videos, etc.
What kind of evidence of extramarital affairs will be accepted by the court in divorce proceedings?
Extramarital affairs litigation is difficult, especially extramarital affairs investigation. Even if the evidence is available, the court will not decide on divorce. The following are commonly used evidences:
1. Email and chat records should be supported by evidence chain.
The evidence of this kind of extramarital affair is generally difficult to be accepted by the court, because it is difficult to ensure that the evidence provided by the parties has not been tampered with. In order for this kind of evidence to be accepted by the court, there must be a complete chain of evidence to confirm each other. For example, who owns the mailbox, who sent the email, and what is the real identity of that person. In addition, the process of extracting emails or chat records must be notarized, and it is difficult for the court to accept the emails or chat records extracted by itself.
It is hard to deny that this guarantee is written in black and white.
At the beginning of extramarital affairs being discovered by spouses, some people will write a letter of guarantee to show their determination to "never do it again" in the future. So can this "black and white" admitted by the other party be used as evidence that the spouse is having an affair? The lawyer thinks so. In a lawsuit, after one party produces a letter of guarantee, the other party may point out that the letter of guarantee is not the true meaning. However, if the other party does not have enough evidence to prove his statement, the reason will usually not be adopted by the court. Because both husband and wife are mostly persons with civil capacity, they should be able to foresee the consequences when writing this guarantee.
3. Photos have limited function and are difficult to "testify"
In order to get evidence that their spouses are having an affair, many people often hire people from "private detective companies" to follow them and take photos. Because the evidence should be obtained legally, it is necessary to investigate the understanding of the evidence of extramarital affairs in the operation process of detective companies to ensure the legitimacy of the evidence.
4. The stolen video can only be taken at home.
If the video taken by the parties in public can be used as evidence, if it is taken in secret, only the video taken in their own home can be used as evidence, while the video taken by the surveillance camera in the hotel and the video taken in other people's home can not be used as evidence.
This kind of evidence is difficult to collect, and it is easy to cause contradictions and infringe on the privacy rights of others, so it is generally not recommended to use it.
The recorded information of marital affairs is mainly collected by the parties themselves, and there is no need to inform each other. If the recordings collected by the parties recognize their ambiguous relationship, then the recorded materials can be submitted to the court as evidence. In addition, because some digital audio recordings have the function of modification, the parties should be able to prove that they have not been modified when providing the audio recordings to the court.
Even if the evidence of extramarital affairs is collected, it will play a certain role in helping the parties achieve the purpose of litigation, but it has little effect, because even if the evidence can prove that the other party has an affair, it can only prove that the fault has only happened once. In addition, having an affair does not mean that the relationship between husband and wife will definitely break down, so the court will not judge divorce. In addition, if both parties agree to divorce, even if one party can prove that the other party is having an affair, it can't get compensation.
The Effectiveness of SMS as Evidence of Divorce
With the development of society and the progress of science and technology, SMS, as a new type of evidence besides the seven types of evidence in litigation, is gradually being put into court by judges and parties for questioning. The evidential effect of mobile phone short messages has aroused widespread concern, but whether mobile phone short messages can be used as evidence is not clearly stipulated in China's current laws.