[Direct answer]The determination of debts shall be based on the specific circumstances. According to Article 1064 of the Civil Code of the People's Republic of China (effective January 1, 2021): debts signed by both spouses, debts subsequently recognized by one spouse, or debts incurred by one spouse for the daily needs of the family belong to the couple's joint debts, which the other spouse must repay; debts incurred by one spouse in excess of the family's daily needs are generally not considered 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 couple's mutual intention. Even if the divorce agreement assigns the debts to one party, it cannot be used to oppose the creditor (Article 35 of the Judicial Interpretation of the Marriage and Family Code). When being chased for debts, first review the purpose of the loan and the flow of funds, and you can consult for more information.Creditor-debtor relations and enforcement case servicesAndBeijing Henglu Law Firm.

I. Problem Background and Typical Scenarios

One of the most common issues in debt-related consultations is when one spouse is suddenly sued by a creditor: the husband secretly borrowed money online or incurred debts in the course of business, and the wife only found out when she received a subpoena; years after the divorce, the creditor presented the borrowing notes from the past; even though the divorce agreement clearly stated that "all debts would be borne by the husband," the wife was still listed as a defendant; after one spouse passed away, the creditor turned to the surviving spouse to recover the debt. Debt identification directly relates to the family's housing, savings, and credit history. Whether to share the debt cannot be determined based on intuition. It is necessary to refer to the identification framework in Article 1064 of the Civil Code and check each item one by one.

II. Key points of contention

  • Determination of the nature of the debt: Whether it is a joint debt signed by both parties, whether it is recognized retroactively, and whether it is incurred for the needs of daily family life. If any of the three conditions is satisfied, it is considered a joint debt; for large-scale loans exceeding daily needs, the determination path is completely different.
  • The allocation of the burden of proof: For loans exceeding the daily needs of the family, the creditor shall provide evidence to prove that the loans are used for common life, joint production and operation, or based on a common intention. If the creditor fails to provide such evidence, the signatory party shall bear the burden of proof himself. This is the most important defense point for non-debtor spouses.
  • Internal agreements and external legal effects: According to Article 35 of the Judicial Interpretation of the Marriage and Family Code (I), the division of debts in a divorce agreement or judgment cannot be used against creditors; the party who assumes more than his or her share can only seek reimbursement from the other party afterwards.

III. Professional analysis by Henglue Law Firm

Henglue Lawyers have observed in handling cases involving marital joint debts that the flow of funds is the key to winning or losing almost all such cases. The main line of defense for the non-borrowing party is "separation": retrieving the transaction records of the account into which the loan was deposited, tracing the whereabouts of the funds, and submitting them as core counter-evidence if the funds were transferred to a third party for personal investment or were clearly unrelated to family expenses. At the same time, they should sort out the family's income structure and major expenditures during the same period to prove that the family's daily expenses did not rely on the loan. For the creditor, the focus is on "jointness": if the loan was used to purchase family property, pay for children's education, or invest in the couple's joint business, even if only one party signed the agreement, it may still be regarded as a joint debt. Evidence should be provided based on the purpose of the funds and the degree of involvement in the business. There are several common pitfalls worth noting: First, thinking that writing a divorce agreement stating that the debt belongs to the other party is safe, but in reality, the creditor may still seek repayment; Second, believing that not signing the agreement necessarily means no liability. If the borrower later acknowledged the debt or received the loan in the account, the nature of the debt may be reversed; Third, ignoring the repayment arrangements. If the debt is indeed a joint debt, it should be repaid first and then retain the relevant evidence to seek repayment from the other party in accordance with the agreement or court judgment. In cases involving divorce and debts, it is advisable to consult with a professional lawyer to avoid legal risks and ensure the legitimate rights and interests of both parties.Divorce litigation and family dispute resolution servicesThe team collaboratively assesses the overall situation.

IV. Practical suggestions and legal basis

At the legal basis level: Article 1064 of the Civil Code of the People's Republic of China (effective January 1, 2021) is the core basis for identifying marital joint debts: debts signed by both spouses, debts acknowledged after the fact, and debts incurred for the daily needs of the family are considered joint debts; except for debts used for the spouses' common life, common production and operation, or based on the common intention of the spouses, the excess part shall be proven by the creditor. Article 1089 stipulates that joint debts shall be repaid jointly upon divorce, and if no agreement can be reached, the court shall make a judgment; Article 1066 allows one party to request the division of marital property when the other party hides, transfers, or sells property, or falsifies joint debts, etc., which seriously damages the interests of the common property. Article 35 of the Interpretation of the Supreme People's Court on the Application of the Marriage and Family Chapter of the Civil Code of the People's Republic of China (effective January 1, 2021) clarifies that the handling of property division in divorce agreements or court documents does not affect the creditor's right to claim against both parties for joint debts. At the practical advice level: After receiving collection or litigation materials, immediately retrieve transaction records and sort out the usage; according to the Civil Procedure Law of the People's Republic of China (amended in 2023, effective January 1, 2024), the defendant shall submit a defense statement within 15 days from the date of receipt of the copy of the complaint, and should not easily fail to appear in court. Specific responses can be made in combination with the above.Creditor-debtor relations and enforcement case servicesEvaluation.

5. Henglue Law Firm's Advice

In marital debt disputes, there are two extremes that should be avoided at all costs: first, blindly admitting the debt, signing the subpoena but not appearing in court or defending oneself, allowing the court to make a default judgment; second, insisting that "it has nothing to do with me" without providing evidence. The correct approach is to refer back to the two criteria in Article 1064 - "whether it was a joint decision" and "whether it was used for joint living" - and organize evidence item by item. If you discover abnormal debt-taking by your spouse during the marriage, promptly preserve evidence and may claim the division of marital property according to Article 1066, and if necessary, initiate divorce proceedings to handle the debt together. If you are currently facing similar problems, it is recommended to consult a lawyer as soon as possible with the promissory notes, transaction records, and property lists, and you can first seek legal advice through the following channels:Beijing Henglu Law FirmMake an appointment for an evaluation.

Q1: The money my spouse borrowed behind my back. Do I have to repay it together with him/her?

It's not necessarily the case. According to Article 1064 of the Civil Code, only debts signed by both parties, acknowledged afterwards, or used for meeting the family's daily living needs are considered joint debts. Debts incurred by one party in excess of the family's daily living needs, in principle, should be repaid by that party personally, unless the creditor can prove that the funds were used for the couple's joint living, joint production and operation, or based on the mutual intention of both parties. Therefore, when being sued, there's no need to blindly admit the debt: check whether the amount is significantly higher than the family's daily consumption level, and track the actual flow of funds. Focus on these two points to provide evidence and defend against the claim. For joint debts, after jointly repaying the debt to the outside party, the party can recover the repayment from the other party according to the agreement or the judgment.

Q2: If the creditor sues both spouses, what evidence should the non-borrowing spouse prepare?

There are three pieces of evidence to support the claim of "non-jointness": 1. Evidence of the signing process, demonstrating that only the other party signed the IOUs and loan contracts, and that the plaintiff never co-signed or ratified them. 2. Evidence of the fund flow, requesting the retrieval of the loan account transaction records to track the transfer of funds to third-party accounts, personal consumption, or speculative purposes. 3. Evidence of household income and expenditure, including salary records and daily spending records, to prove that the family did not need to borrow money and did not benefit from the loan. It is also important to note that the defendant must submit a defense statement within 15 days of receiving a copy of the complaint and appear in court on time. Failure to do so may result in unfavorable factual determinations against the defendant. If it is difficult to obtain evidence, the defendant may apply for a court investigation order.

Q3: Approximately how much does it cost to litigate a case involving a couple's joint debts?

The litigation fees are charged according to the standards for property cases. According to Article 13 of the "Measures for the Payment of Litigation Fees" (implemented on April 1, 2007), the fee for each case is 50 yuan if the amount does not exceed 10,000 yuan, and 2.5% of the amount exceeding 10,000 yuan but not exceeding 100,000 yuan, and so on; the fees for applying for property preservation and the guarantee fees are calculated separately. Lawyer's fees are generally borne by the client. If the case involves complex evidence collection such as retrieving transaction records and tracing the use of funds, it is recommended to hire a lawyer to handle it, and the fees are usually proportional to the effectiveness of the evidence. If the debt identification is handled together with the divorce litigation, it can reduce the cost of separate litigation, but the procedural arrangements should be coordinated by the lawyer based on the evidence situation.

Q4: After the divorce, can the creditors of my ex-spouse still come after me?

Whether you can be found depends on whether the debt is recognized as a joint debt rather than a marital debt. For joint debts formed during the marriage, the creditor can still claim against both parties after the divorce according to Article 35 of the Judicial Interpretation (I) of the Marriage and Family Code. The agreement in the divorce agreement that "the debt belongs to the other party" is only effective within your own relationship. You can first bear the debt and then seek compensation from the other party. For debts that are not joint debts, you can defend them as personal debts according to Article 1064 of the Civil Code, which has nothing to do with whether the marriage is dissolved. Therefore, when getting a divorce, don't just think that writing it down in the agreement is enough. Evidence of the nature of the debt (signing situation, use of funds) should be fixed before the divorce to prevent being sued for repayment afterwards.

Q5: If I discover that my spouse has taken on large debts, what should I do?

Three steps to deal with it: 1. Fix the evidence: Keep the borrower's signed IOUs, copies of the loan contract, account transaction records, and communication logs. 2. Leave a written record: For debts that the borrower is unaware of or does not acknowledge, promptly express your position to the other party and the creditor in writing to avoid being held liable for implied acknowledgment in the future. 3. Evaluate the legal path: If the debt threatens the safety of the family's assets, you can request the division of marital property under Article 1066 of the Civil Code. In cases involving divorce, claim the nature of the debt and its apportionment in the litigation process. If necessary, apply for property preservation to prevent the assets from being transferred. It's crucial not to sign any repayment commitments or guarantee documents under pressure, as signing such documents may change the nature of the debt.

If you are currently facing similar problems, it is recommended that you consult a professional lawyer as soon as possible with the relevant evidence, to avoid missing the statutory time limits. →Legal services for creditor-debtor disputes·Beijing Henglu Law Firm