[Direct answer]The "debts" that suddenly emerge in divorce litigation may not be genuine. To identify false debts, consider the following four points: whether the couple signed the agreement jointly or acknowledged it retrospectively, whether the borrowed money was used for family daily life, whether the borrowing time was concentrated before and after the divorce litigation, and whether the funds were actually delivered and where they went. According to Article 1064 of the Civil Code (effective January 1, 2021), debts incurred by one party in excess of family daily needs in their own name are generally not considered marital joint debts; according to Article 1092, if one party falsifies marital joint debts in an attempt to misappropriate the other party's property, the other party may receive a smaller share or no share in the division of property. If you find suspicious debts, you should immediately require the other party to present transfer receipts and proof of use, and apply to retrieve the bank transaction records. Beijing Henglu Law Firm\nFamily Dispute Lawyer TeamIt can assist in reviewing the authenticity of the debt. For more details, please refer to the following link:Beijing Henglue Law Firm.

I. Legal basis and interpretation of provisions

1. Article 1064 of the Civil Code of the People's Republic of China (effective as of January 1, 2021)

The article establishes the principle of "joint debt and joint signature" for marital joint debts: debts incurred through joint expressions of intent, such as the joint signing by both spouses or the subsequent recognition of debts by one spouse, as well as debts incurred by one spouse in the name of the family for daily living needs during the marriage, are considered marital joint debts; debts incurred by one spouse in the name of the family beyond daily living needs are, in principle, not joint debts, unless the creditor can prove that the debts were used for the couple's common life, joint production and operation, or based on the joint expressions of intent of both parties. At the identification level, promissory notes without the other spouse's signature, with amounts significantly exceeding daily expenses, and unclear purposes of use are the high-incidence forms of false debts. In such cases, the burden of proof falls on the party claiming that the debts constitute joint debts.

2. Article 1092 of the Civil Code of the People's Republic of China (effective as of January 1, 2021)

When one spouse conceals, transfers, sells, damages, or squanders the couple's joint property, or forges joint debts in an attempt to appropriate the other spouse's property, the court may award a smaller share or no share to that spouse when dividing the couple's joint property in a divorce. If the other spouse discovers such actions after the divorce, they may file a lawsuit with the people's court to request a second division of the couple's joint property. This article is the core remedy for the "debtor" party: they can directly claim that the other party should be awarded a smaller share of the property during the divorce litigation, and if such actions are discovered after the divorce, they can still file a lawsuit to reverse the decision. The remedy is not lost once the divorce judgment takes effect, and the party who forged the debts will also bear the consequences of property sanctions.

3. Practical adjudication guidelines (review of the authenticity of debts)

The court typically reviews the authenticity of debts from five perspectives: whether the borrowing occurred primarily before or after the divorce litigation; whether the funds were actually delivered and whether they were quickly returned to the borrower's and their relatives' accounts; whether there are corresponding consumption or expenditure receipts for the borrowed funds; whether the lender is a close relative or other party with a conflict of interest; and whether the content of the IOU and the transfer receipts can corroborate each other. If the debt is confirmed to be fabricated, in addition to being sanctioned in the property division, the circumstances may also constitute the crime of false litigation as stipulated in Article 307 of the Criminal Law (effective as of November 1, 2015). The court may transfer the criminal clues to the investigative organ. The most common pitfall for litigants is not conducting substantive cross-examination of unexpected IOUs. Once they vaguely acknowledge them in court, it will be extremely difficult to refute them afterwards.

II. Practical Experience of Henglue Law Firm

Based on Henglue Lawyer's practical observations in handling divorce and debt-intertwined cases, false debts often take three forms: first, borrowing money from relatives and friends before divorce and forging IOUs; second, packaging personal debts such as extravagance and gambling as family expenses and demanding the other party to share them; third, fabricating business loans and claiming that they are used for "family investment". From the perspective of judicial rulings, judges generally focus on the closed-loop of funds and evidence of their use. IOUs alone are not sufficient to determine joint debts. The party holding the IOUs needs to clarify the source of the funds, the method of delivery, and the destination of the funds, otherwise it will be difficult to gain acceptance. There are three pitfalls that parties are most likely to fall into: not cross-examining each IOU submitted by the other party; privately reconciling accounts with so-called creditors and promising to repay, leaving unfavorable statements; only verbally denying without applying to retrieve bank transaction records. A safer approach is to apply to retrieve the bank transaction records of the other party and related accounts as early as possible in the litigation, and compare each large-sum transaction with the IOUs and the purpose of use to verify the funds' flow; for disputes involving large debts, it is also advisable to refer to Henglue's advice.Creditor's rights and debts, and legal services related to enforcementIt mainly focuses on the practical experience in the field of artificial intelligence.

III. Frequently Asked Questions

Q1: If the other party produces a stack of IOUs during the divorce, can I simply deny their authenticity?

You can cross-examine the witness directly. The IOU is just a single piece of evidence. The party claiming that the debt belongs to the couple's joint debt must also prove that the debt actually occurred and was used for the couple's common life. You should require the other party to present the transfer receipt and explain the source and purpose of the funds. If necessary, apply to the court to retrieve the bank statements of both parties. For "debts" with only IOUs and no delivery records, the court generally will not recognize them. Be careful not to verbally acknowledge any debt out of panic. All cross-examination opinions should be in writing.

Q2: What evidence do I need to collect to prove false debts?

The four key points are as follows: First, check the bank transaction records between the other party and the so-called creditor to see whether there was a genuine loan and whether the funds were repaid in a short period of time; Second, compare the family income with the records of large-scale consumption to prove that there is no such expenditure in daily life; Third, compare the time of the loan with the time of the divorce litigation, and the loans that appear most frequently are the most suspicious; Fourth, check the communication records between the other party and the creditor to reconstruct the process of forming the IOU. If you suspect that the IOU was backdated, you can also apply for a written appraisal of the time when the IOU was formed.

Q3: If I'm identified as a joint debtor, is there any way to overturn the decision?

There are relief channels. If the first-instance court fails to find it, and the other party forges debts after the divorce, the party can file a lawsuit according to Article 1092 of the Civil Code to request the division of the couple's joint property again and claim that the forging party should be given a smaller share or no share at all; if the circumstances are serious and the other party is suspected of committing the crime of false litigation, the party can also report the case to the public security organ. The key to reversing the situation lies in fixing the forged evidence. After discovering the clues, the party should preserve the original and make a notarized backup as soon as possible, and can consult lawyers at the same timeBeijing Henglu Law FirmEvaluate the relief plan.

Q4: How much does it cost to litigate a case like this?

For divorce cases, the acceptance fee is charged per case. For the portion involving property division with a total amount exceeding 200,000 yuan, an additional fee will be charged proportionally. If a lawsuit for property redistribution is filed separately after the divorce, the fee will be paid in stages based on the value of the disputed property, and the client may also apply for property preservation according to the procedures. Compared with the risk of being indebted for hundreds of thousands of yuan, it is usually more cost-effective to hire a lawyer to review the debts and organize cross-examination as soon as possible. The specific fees shall be subject to the court's charging standards and the client's contractual agreement.

Q5: If you only discover after getting divorced that the debt was forged, is there still time to take action?

It's still possible. According to Article 1092 of the Civil Code, if the other party discovers acts such as forged debts after the divorce, they may request to re-divide the couple's joint property. Generally, this request should be made within three years from the date of discovery. It is necessary to collect evidence such as bank statements, defects in promissory notes, and the other party's relationship with the creditor as soon as possible and file a lawsuit. If the time has passed and the account has been closed, you can apply for a court investigation order to retrieve the historical bank statements. It is crucial not to delay until the statute of limitations expires.

IV. Suggestions for Protecting Rights and Interests

  • When receiving the promissory note submitted by the other party, it is necessary to verify it in writing item by item, and require them to provide payment receipts and proof of use. Do not tacitly accept any payment without verification.
  • Apply as soon as possible to retrieve the bank account statements of the other party and their related individuals, and check each transaction in detail to ensure that the large-amount deposits and withdrawals match the promissory notes and the intended use. Use the fund flow to verify the authenticity of the evidence.
  • Keep records of family income and consumption to prove that the "loan" was not used for daily family life, thereby undermining its status as a joint debt.
  • If you discover evidence of fraudulent debts or property transfers, inform the court immediately and request that the other party be awarded a smaller share or no share of the property. If necessary, you can accuse the other party of filing a false lawsuit. For more information, please consult Henglu Law FirmCreditor-debtor relations and the execution team.

If you are facing similar problems, it is recommended that you consult a professional lawyer as soon as possible with the evidence materials, so as to avoid missing the statutory time limit. →Divorce litigation legal services·Beijing Henglue Law Firm