First, the scope of husband and wife property How to divide the property, we must first know what is the husband and wife property. Husband and wife property refers to the property obtained during the marriage relationship, that is, the property obtained after marriage. At the time of divorce, the division is "marital property", excluding the property jointly owned by husband and wife. According to article 17 of the Marriage Law, the property jointly owned by husband and wife includes:
(1) Wages and bonuses; The wages stipulated by the laws of China refer to the total wages, including standard wages, bonuses, allowances and subsidies. Bonus refers to a certain amount of money awarded by the state, government and authoritative organizations to those who have made special contributions to a specific subject or achieved outstanding results. It's not a bonus in salary.
(2) Income from production and operation; What needs to be pointed out here is that no matter whether you invest in husband and wife's personal property or husband and wife's property, the income belongs to husband and wife's property.
(3) Income from intellectual property rights; Intellectual property rights include copyright and related rights, trademark rights, geographical indications rights, industrial design rights, patents, integrated circuit design rights and undisclosed information exclusive rights. Its income refers to the property income actually obtained or clearly obtainable during the marriage relationship.
(4) Inherited or donated property, except as provided for in Item 3 of Article 18 of this Law;
Article 18, paragraph 3, of the law refers to the property that belongs only to the husband or wife as determined in the will or gift contract. Therefore, testamentary inheritance (different from legal inheritance) and gift are not included. These two kinds of property belong to only one spouse, because the will of the decedent and the donor should be respected. For example, in the gift contract, the donee is only the woman, so this part of the property does not belong to the joint property of husband and wife, and the other party has no right to ask for division when divorcing. (five) other property that should be owned by * * *. 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) clarifies the scope of "other property that should be owned by * * * *": (1) income obtained by one party through personal property investment; According to article 18 of the Marriage Law, "personal property" refers to the pre-marital property of Party A; B. medical expenses, living allowance for the disabled, etc. Obtained by one party due to physical injury; C, the will or gift contract to determine the property that belongs only to the husband or wife; D, one party's special daily necessities; E. other property that should be owned by one party. If one party invests with personal property, then the investment income is the same property. Generally speaking, in real life, it mainly refers to the investment behavior with personal pre-marital property before marriage, for example, the house purchased by one party before marriage, the stock purchased by one party before marriage, etc. And these investment behaviors continue until marriage, all involving the issue of income. (2) Housing subsidies and housing accumulation funds actually obtained or should be obtained by both men and women. Generally speaking, housing subsidies and housing accumulation funds are monetary housing distribution. In fact, get a good understanding, that is, send it to your hand or type it on the card. But how to understand "deserved"? What is the standard of measurement? This should be analyzed and handled according to the actual situation of the case. (three) the old-age insurance and bankruptcy resettlement compensation actually obtained or should be obtained by both husband and wife. Of course, there is also a question of what you should get.
Second, the division of husband and wife's * * * property defines the scope of husband and wife's * * * property, so how to divide the husband and wife's * * * property? According to the provisions of the Marriage Law and related laws, equality between men and women should be observed; Take care of the interests of children and women; Conducive to production and convenient life; The principle of not harming the interests of the state, the collective and others. At the same time, 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) gives clear and operable provisions. The breakdown is as follows:
1, division of real estate
(1) Interpretation of public housing rented by one party before marriage and housing reform after marriage (II) Article 19 stipulates that if a house rented by one party before marriage is purchased with the same property after marriage, and the property ownership certificate is registered in the name of one party, it is deemed as the joint property of husband and wife.
(II) Interpretation of the current price and ownership of the disputed house (II) Article 20 stipulates that if the two parties cannot reach an agreement on the value and ownership of the house in the joint property of husband and wife, the people's court shall handle it separately according to the following circumstances: a. If both parties claim the ownership of the house and agree to bid, it shall be allowed; B. If one party claims the ownership of the house, the appraisal institution will appraise the house according to the market price, and the party that obtains the ownership of the house will give the other party corresponding compensation; C. if neither party claims the ownership of the house, the house shall be auctioned according to the application of the party concerned, and the proceeds shall be shared.
(3) Explanation of Not Obtaining Property Ownership Certificate or Not Obtaining Full Ownership at the Time of Divorce (2) Article 2 1 stipulates that if both parties have disputes over the house that did not obtain ownership or full ownership at the time of divorce, if negotiation fails, the people's court will decide that the ownership of the house is improper and it should be used by both parties according to the actual situation. After the parties have obtained the full ownership of the house specified in the preceding paragraph, if there is any dispute, they may bring a lawsuit to the people's court separately.
(4) How to identify and explain parents' contribution to the couple's house purchase; (2) Article 22 stipulates that if parents contribute to the purchase of houses for both parties before marriage, the contribution shall be recognized as a personal gift to their children, unless the parents explicitly indicate that it is a gift to both parties. After the parties get married, if the parents contribute to the purchase of houses for both parties, the contribution shall be regarded as a gift to both husband and wife, unless the parents explicitly express that it is a gift to one party. Explain (2) treat this contribution as a gift, but pay attention to both before marriage and after marriage.
2. For the division between stocks, bonds, funds and other securities and unlisted stocks, China people like to speculate in stocks, which is a common investment behavior. In divorce cases, most cases will encounter the stock split problem. The general court's handling method is that both parties negotiate the price benchmark first. If negotiation fails, the court will determine a base date and convert it into RMB after finding out the specific amount. If negotiation fails or it is difficult to distribute according to the market price, explain (2) Article 15: When a husband and wife divide securities such as stocks, bonds and investment fund shares in the same property, if negotiation fails or it is difficult to distribute according to the market price, the people's court may distribute them in proportion to the quantity.
3. Division of husband and wife's contribution in the company (1) Division of husband and wife's contribution in the limited liability company.