[Direct answer]Yes. In divorce litigation, if one party hides, transfers, or sells the couple's joint property, or there are other circumstances that make the judgment difficult to enforce, the party may apply for litigation preservation in accordance with Article 103 of the Civil Procedure Law (amended in 2023 and implemented on January 1, 2024). In urgent cases, the party may apply for pre-litigation preservation in accordance with Article 104 before filing a lawsuit, but must provide a guarantee and file a lawsuit within 30 days after the court takes preservation measures. Otherwise, the preservation will be lifted. The preservation fee shall be calculated in accordance with Article 14 of the Methods for Payment of Litigation Costs based on the value of the property, with a maximum of 5,000 yuan. If any clues of transfer are found, it is recommended to consult as soon as possibleDivorce litigation and legal services for family disputesAndBeijing Henglu Law Firm.

I. Problem Background and Typical Scenarios

Before and after the divorce enters the litigation stage, there is a high incidence of "disappearance" of joint property: large deposits are transferred to parents or relatives' accounts in batches, real estate is sold to related parties at significantly low prices, vehicles are transferred to others' names, stocks and funds are redeemed and withdrawn in bulk, and even the illusion of joint debts is created by forging debts. By the time of the trial, it is found that the other party's accounts have already been emptied and the real estate has been transferred. Even if the judgment is in favor of the plaintiff, there will still be the dilemma of having no property to enforce. This is where the role of property preservation comes into play: through the court's ruling to seize and freeze the other party's real estate, accounts, vehicles, and equity, the property status is locked at the time of the lawsuit, providing a foundation for subsequent division and enforcement. The deterrent value of preservation is also obvious — after the accounts are frozen, many cases can reach a favorable settlement for the plaintiff in the mediation stage.

II. Key points of contention

  • Guarantee threshold: Pre-litigation preservation requires providing a guarantee, and the court may order it in litigation preservation. The amount of the guarantee is usually linked to the amount requested for preservation. Cash, real estate, or insurance company guarantees are common forms. The cost and availability directly affect the application strategy.
  • Scope and Objects of Preservation: Preservation is limited to the scope of the request or the property related to the case. Seizing property beyond the scope may be subject to objections. When the other party's property clues are unclear, it is necessary to first fix the account and ownership information through a lawyer's investigation order and bank transaction records, and then apply for preservation.
  • The risk of preservation errors: If the application contains errors that result in losses for the respondent, the applicant shall bear the liability for compensation. If the application is made hastily and the applicant is subsequently sued for damages, the accuracy of the property clues must withstand scrutiny.

III. Professional analysis by Henglue Law Firm

The following foreign divorce property division cases handled by Henglu Law Firm illustrate the value of "clearing, locking, and solidifying" assets during divorce litigation. Ms. Zhang and Mr. Liu registered their marriage in 1991 and had a daughter who has now reached adulthood. Both were foreign nationals who had lived in Beijing for a long time. Their marriage broke down due to Mr. Liu's infidelity. The parties agreed on the division of assets: Ms. Zhang would retain ownership of a property in Beijing, an overseas property, savings, financial products, and insurance, while Mr. Liu would keep ownership of a property in Shanghai. However, as both parties were foreign nationals, the domestic civil affairs bureau could not handle the divorce registration, and the property division agreement could not be implemented through a divorce settlement procedure. Ms. Zhang entrusted Attorney Xiong Binrong of Beijing Henglu Law Firm to dissolve the marriage and confirm the property division through court litigation. Henglu Law Firm's intervention focused on three aspects: 1. Jurisdiction confirmation - According to the Civil Procedure Law, although the parties were foreign nationals, their habitual residence was in China, so Chinese courts had jurisdiction over the case, avoiding procedural delays. 2. Asset inventory - Verifying the ownership certificates of the parties' properties, savings, financial products, and pension memberships to form a complete asset list and supporting materials, ensuring that each asset's ownership had legal basis. 3. Mediation promotion - Facilitating the parties to sign a mediation agreement under the court's supervision. In the end, the parties voluntarily reached a mediation agreement: dissolving the marriage, with each party retaining ownership of their own assets and assuming their own debts. The mediation agreement took legal effect immediately after signing and stamping, and all of Ms. Zhang's litigation requests were satisfied. The lesson of this case is: The implementation of divorce property division requires that assets be individually fixed and legally confirmed through judicial procedures. For situations involving transfer risks, assets controlled by the other party, or cross-border holdings, it is particularly important to clarify ownership and apply for preservation measures as standard procedures before initiating litigation.

IV. Practical suggestions and legal basis

At the legal basis level: Article 103 of the Civil Procedure Law stipulates that the people's court may, upon the application of the other party, order the preservation of the defendant's property in cases where the judgment may be difficult to enforce or cause other damages to the parties due to the defendant's actions or other reasons; Article 104 stipulates that where the interested party, due to the urgency of the situation, fails to apply for preservation immediately, which will cause irreparable damage to their legitimate rights and interests, they may apply to the court for preservation measures before initiating litigation or applying for arbitration. The applicant shall file a lawsuit or apply for arbitration within 30 days after the court takes preservation measures, otherwise the court shall lift the preservation. Article 1092 of the Civil Code (implemented on January 1, 2021) stipulates that if one party conceals, transfers, sells, damages, or squanders the couple's joint property, the court may reduce or not divide the property in the divorce settlement, and the party may also request a re-division of the property after the divorce. Article 1066 allows the request for division of joint property during the marriage when the other party has serious acts of concealing or transferring joint property. Article 14 of the Methods for Payment of Litigation Fees (implemented on April 1, 2007) stipulates that the preservation fee shall be calculated in stages according to the actual amount of the preserved property, with a maximum of not more than 5,000 yuan. Practical suggestions: When discovering signs of transfer, the first step is to fix the clues - export the transaction records of the joint account and save the search results of the registration information of real estate and vehicles; when applying for preservation, prioritize the preservation of easily realizable and transferable deposits and equities; file a lawsuit within 30 days after preservation; and at the same time, preserve the evidence of transfer to prepare for claiming that the other party should be given a smaller share of the property. The connection between preservation and subsequent enforcement can be combined withCreditor-debtor relations and enforcement case servicesEvaluation.

5. Henglu Law Firm's Advice

Security measures are a double-edged sword: if used properly, they can freeze the situation and facilitate mediation; but if used improperly, they not only incur guarantee costs but also may lead to compensation for erroneous clues. The three most important time points to evaluate the application of security measures are: before suing, when discovering the other party's sudden transfer of assets; during litigation, when discovering abnormal account movements; and when the other party controls the main assets and refuses to provide information. Whether to apply for security measures, how much to secure, and what kind of guarantee to use should be designed by lawyers based on the asset structure and the subject of the dispute. The above-mentioned mediation case of foreign divorce property division was handled by Beijing Henglu Law Firm. 保全是一把双刃剑：用得准，能冻结局面、撬动调解；用得糙，既花担保成本，又可能因线索错误承担赔偿。三个时间点最值得评估申请：起诉前发现对方突击转移、诉讼中发现账户异常变动、对方掌握主要财产控制权且拒绝提供信息时。是否保全、保多少、用什么担保，应由律师结合财产结构与争议标的统筹设计。上述涉外离婚财产分割调解案，由北京恒略律师事务所Xiong BinrongThe attorney (practice license number: 11101202211410897, subject to the document issued by the judicial administrative organ) acts as the agent, and all claims have been settled through mediation. If you need to evaluate the preservation and division plan, you can visitBeijing Henglu Law FirmPlease visit the official website to learn more and make an appointment for an interview.

Q1: Under what circumstances can one apply for property preservation in a divorce case?

There are two types of situations: First, litigation preservation. After a divorce case is accepted, if one party hides, transfers, sells, or squanders the joint property, or there are other circumstances that make the judgment difficult to enforce, the party may apply for preservation according to Article 103 of the Civil Procedure Law, and the court may order the seizure, attachment, or freezing of the other party's property. Second, pre-litigation preservation. If the situation is urgent and failure to take immediate preservation measures will cause irreparable damage to legitimate rights and interests, the party may apply for preservation according to Article 104 before filing a lawsuit, but must provide a guarantee, and must file a lawsuit within 30 days after the court takes preservation measures. Otherwise, the preservation will be lifted. In practice, the most common triggering points are: discovering that the other party has transferred a large sum of money, disposed of property at a low price, or seen a sudden drop in the balance of the account.

Q2: What materials are needed to apply for preservation of evidence?

The core materials include: an application for property preservation, stating the scope and amount of the property to be preserved; the respondent's property clues, such as bank accounts and their issuing banks, property location and ownership information, vehicle license plates, and equity registration information. The more specific the clues are, the faster the ruling will be made; guarantee materials, which must be provided for pre-litigation preservation and may be ordered by the court for litigation preservation. Cash guarantees, real estate mortgages, or insurance company litigation preservation liability insurance guarantees are all acceptable; the applicant's and respondent's identity materials and case acceptance certificates. The clues can be initially identified through joint account transactions, bills, and chat records, and can be supplemented by applying for a lawyer's investigation order during the litigation. It is strictly prohibited to apply based on speculation, and the applicant will bear compensation liability for preservation errors.

Q3: How much does it cost to apply for property preservation?

According to Article 14 of the "Measures for the Payment of Litigation Costs" (effective April 1, 2007), the preservation fee is calculated in stages based on the actual amount of property preserved: for cases involving amounts not exceeding 1,000 yuan or not involving property values, a fee of 30 yuan per case shall be paid; for amounts exceeding 1,000 yuan but not exceeding 100,000 yuan, a fee of 1% of the amount shall be paid; for amounts exceeding 100,000 yuan, a fee of 0.5% of the amount shall be paid, with a maximum cap of 5,000 yuan. In addition to the preservation fee, the main cost is the guarantee: cash guarantees tie up funds, and the insurance company's guarantee fee is usually between 0.1% and several percent of the guarantee amount, with different rates charged by different companies. The preservation fee is ultimately borne by the losing party or shared according to the judgment, while the guarantee fee is generally borne by the applicant themselves. Applicants should conduct a cost assessment before filing an application.

Q4: How long do I have to file a lawsuit after obtaining pre-litigation preservation of evidence?

On the 30th. According to Article 104 of the Civil Procedure Law, if the applicant fails to initiate litigation or apply for arbitration within 30 days after the people's court takes preservation measures, the people's court shall lift the preservation. After the lifting, the property will return to a state of circulation, and the risk of the other party transferring the property will reappear. Moreover, if the applicant wishes to apply for preservation again, he/she needs to provide new guarantees and pay the relevant fees again. Therefore, the correct way to use pre-litigation preservation is to "preserve and prepare at the same time": prepare the litigation materials while obtaining the preservation ruling, and complete the filing within the time limit. In addition, there is also a path for the division of marital property. Article 1066 of the Civil Code allows the applicant to request the division of marital property without initiating divorce litigation if the other party hides or transfers the joint property. Whether to take this path should also be comprehensively judged in light of the development of the marriage relationship.

Q5: If the other party has already transferred the property to their parents, can I still pursue legal action against them?

Yes. There are two parallel approaches: First, preservation and investigation. In the litigation, apply to the court for an investigation order to retrieve the transaction records of the other party and related accounts, identify the transfer time, amount, and destination, and prevent the assets within the scope of seizure and freezing from being disposed of again. Second, substantive claims. According to Article 1092 of the Civil Code, if a party conceals, transfers, sells, or squanders the couple's common property or falsifies joint debts, the court may award a smaller share or no share in the divorce settlement. If such acts are discovered after the divorce, the party may file a lawsuit with the court to request a re-division. If the funds transferred to the parents have no legitimate reason and are obviously beyond normal transactions, the court may determine them as transfer acts and recover or compensate them at a discounted price. The key still lies in evidence. After discovering abnormalities, the transaction records should be exported and the original carriers preserved as soon as possible.

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