Divorced, how to divide the property? There are two ways to divorce. One is divorce by agreement, where both husband and wife divorce voluntarily, and after signing the divorce agreement, they go to the marriage registration office for handling; The other is litigation divorce. If one of the husband and wife insists or agrees to divorce, but can't reach an agreement on child support or property division, they can only divorce through court proceedings. The main reason for divorce through court proceedings is that husband and wife can't reach an agreement on the division of property. Marriage law and judicial interpretation give a basically clear statement on the division of marital property. How to divide the property, first of all, we must know what property the husband and wife have. The property owned by husband and wife refers to the property obtained during the marriage relationship, that is, the property obtained after marriage. The division at the time of divorce is "husband and wife have property", excluding the property jointly owned by husband and wife. Then let's take a look at it first: 1. The scope of husband and wife According to Article 17 of the Marriage Law, the property jointly owned by husband and wife includes: (1) salary and bonus; 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. Clear the scope of the husband and wife * * * property, then, how to divide the husband and wife * * * property? Second, the division of marital property According to the provisions of the Marriage Law and related laws, the following principles should be followed when dividing property: equality between men and women; Take care of the interests of children and women; Conducive to production and convenient life; Shall not harm 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. Property division (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 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 considered 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. stock split trading is a common investment behavior of stocks, bonds, funds and other securities as well as unlisted stocks. 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 capital contribution in the company (1) Interpretation of division of husband and wife's capital contribution in a limited liability company (II) Article 16 stipulates that when a divorce case is tried by a people's court, if one of the husband and wife is involved in the division of capital contribution in a limited liability company in the name of one party and the other party is not a shareholder of the company, the following treatment shall be taken: a. Both husband and wife agree to transfer part or all of their capital contribution to the spouse of the shareholder through consultation. If more than half of the shareholders agree and other shareholders explicitly give up the preemptive right, the spouse of that shareholder can become a shareholder of the company; B. 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. The evidence mentioned in the preceding paragraph to prove the consent of more than half of the shareholders may be a resolution of the shareholders' meeting or a written statement of the shareholders obtained by the parties through other legal channels. In practice, in addition to the above provisions, we should also refer to the provisions of the Company Law. In practice, dealing with divorce cases involving the company's equity is relatively complicated, and often the court's decision has to wait for the company's shareholders' meeting to decide. It is often difficult for the parties to grasp this situation, and hiring a lawyer can protect their rights and interests to the maximum extent. Article 17 stipulates that divorce cases tried by the people's court involve the division of capital contribution of one spouse in the partnership, and the other spouse is not a partner of the partnership. When the husband and wife agree to transfer all or part of their respective property shares in the partnership to each other through consultation, it shall be handled according to the following circumstances: a. The other partners agree unanimously. B. If the other partners do not agree to the transfer, they can exercise the preemptive right under the same conditions and divide the transferred property; C, other partners do not agree to the transfer, nor exercise the priority, but agree that the partner withdraws from the partnership or returns part of the property share, and can divide the returned property; D. If the other partners neither agree to the transfer, nor exercise the preemptive right, nor agree that the partner withdraws from the partnership or returns part of the property share, it shall be deemed that all partners agree to the transfer, and the spouse has obtained the status of partner according to law. Because the company law is different from the partnership law, especially the company law stipulates that the company's equity can only be transferred, and the partnership enterprise can withdraw its capital. Therefore, allowing partners to withdraw from the partnership and allowing the court to deal with the assets withdrawn from the partnership is different from the company's equity treatment, and the other points are the same. (3) The separation of a sole proprietorship enterprise invested by one spouse in the name of one spouse is relatively easy to handle because the sole proprietorship enterprise does not involve the interests of a third party. Interpretation (2) Article 18 stipulates that if a husband and wife invest in the establishment of a sole proprietorship enterprise in the name of one party, the people's court shall deal with the joint property of the husband and wife in the sole proprietorship enterprise according to the following circumstances: a. If one party advocates operating the enterprise, after evaluating the assets of the enterprise, the party that has obtained the enterprise shall give the other party corresponding compensation; B. If both parties advocate operating the enterprise, on the basis of bidding by both parties, the party that obtains the enterprise will give the other party corresponding compensation; C. If both parties are unwilling to run the enterprise, it shall be handled in accordance with the Law of People's Republic of China (PRC) Municipality on Wholly Owned Enterprises and other relevant regulations. The above three situations only involve the division of one spouse's contribution in the company. If both husband and wife have capital contributions in the company, they can be divided according to the above provisions. The above provisions on property division can't exhaust the problems in reality, so let's pay attention to these problems again. 4. Explanation on the Division of Military Property (II) Article 13 stipulates that the casualty insurance, disability allowance and medical living allowance of military personnel belong to personal property. Article 14 stipulates that when the people's court hears divorce cases involving one-time expenses such as demobilization fees and self-employment fees paid to military personnel, the duration of the marital relationship between husband and wife is multiplied by the annual average, and the amount obtained is the joint property of husband and wife. How to determine the contribution of parents to the house purchase before the marriage of husband and wife should be considered as a personal gift to their children, unless the parents clearly 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 considered as a gift to both husband and wife, unless the parents explicitly express that it is a gift to one party. Click to enter the photo album and submit it to: job channel copy the title and link and send it to friends.