[Direct answer]The core of avoiding being in debt is Article 1064 of the Civil Code of the People's Republic of China: Only debts signed by both parties, subsequently ratified, or debts incurred by one party for the needs of family daily life belong to the couple's joint debts; debts incurred by one party in excess of daily life needs in the name of an individual shall, in principle, be borne by the individual, unless the creditor proves that the debts are used for the couple's common life or joint production and operation. To prevent this, it is necessary to: not sign jointly at will, require written explanations of the purpose of large-amount loans, separate family accounts from personal accounts, and keep receipts of income and expenditure; if you find that the other party has borrowed money abnormally, apply for retrieving the transaction records and preserving evidence in time. The debt-sharing clauses in the divorce agreement cannot be used against the creditors, and after assuming responsibility, you can seek recourse from the other party. For more information, please refer to the relevant provisions of the Civil Code of the People's Republic of China.Creditor-debtor relations and enforcement case services、Divorce litigation and legal services for family disputesAndBeijing Henglu Law Firm.

I. Problem background and typical scenarios

Being "in debt" is one of the most unexpected situations in divorce disputes. Typical scenarios include: one party secretly taking out loans during the marriage, and the creditor suing both spouses for joint repayment with a promissory note; the other party suddenly throwing out a stack of promissory notes during divorce negotiations, demanding joint responsibility; years after the divorce, one party's assets being executed for old debts, while the other party only finds out about it later; and even some people forging debts in an attempt to seize the other party's share through divorce settlement. Once joint debts are identified, salaries, real estate, and vehicles may be seized and executed, credit scores damaged, and recovering the debt from the other party later facing the practical dilemma of the other party being unable to repay. To avoid being passive, the key lies in simultaneously focusing on two aspects: prevention in advance and providing evidence during litigation.

II. Key points of contention

  • Determining the nature of the debt: whether it is a "joint debt with joint signatures", whether it is for the needs of daily family life, and whether it is used for joint production and operation, are the three paths to determine a joint debt. The burden of proof shifts between the creditor and the couple according to the circumstances, directly determining who will pay the money.
  • Internal and external conflict of legal effect: The divorce agreement or judgment assigning debts to one party is only effective within the couple, and the creditor can still claim against both parties. The party who bears more than their share often encounters the dilemma of having no property to enforce against after the fact.
  • Identifying false debts: Forged promissory notes, backdated dates, and fabricated fund uses are all concealed by such methods. It requires the help of handwriting identification, fund flow tracking, and on-the-spot questioning to expose them, and the forger should be held accountable for the resulting losses.

III. Professional analysis by Henglue Lawyers

Henglue Lawyers suggest addressing the issue from both the perspectives of litigation response and prevention. When responding to litigation, three review steps should be taken: First, authenticity review—verifying whether the signatories of the IOUs, the delivery methods, and the bank transaction records can form a closed loop, and if there are doubts, applying handwriting identification to the IOUs; Second, purpose review—for large-amount loans exceeding the needs of daily family life, according to Article 1064, the creditor shall provide evidence to prove that the funds were used for common life, joint production and operation, or based on a common intention. If the creditor fails to provide such evidence, the spouse shall not bear responsibility; Third, amount and interest review—reducing unreasonable claims. In terms of prevention, the following measures should be taken: When involving joint signatures, it is necessary to clarify the amount and purpose of each transaction; For one party engaged in financing, it is necessary to maintain the separation of family assets and corporate finances and keep records; When discovering that the other party frequently transfers large amounts of money or borrows funds abnormally, evidence should be fixed as soon as possible.

A divorce-related property dispute case handled by Henglue Law Firm highlights the risks of debt and property intertwining: Ms. Wang and Mr. Li got married in 1991 and divorced by agreement in 2003, with the agreement stating that they had no joint housing. In 2020, a house owned by Mr. Li was auctioned by the court due to his external debts, at which point Ms. Wang discovered that the house had been purchased during their marriage and concealed by Mr. Li during the divorce. Ms. Wang filed a lawsuit for divorce-related property disputes, and the court determined that the house was a marital joint property that had not been properly handled during the divorce. After calculating the proportion of contributions during the marriage, the court ordered Mr. Li to pay Ms. Wang a house depreciation of over 945,000 yuan. This case warns us that one party's external debts may affect the family's major assets through enforcement procedures. Debt issues and property issues are often interrelated. During the divorce, it is necessary to clarify both the property and the debts, as omitting either could become a hidden danger years later. For cases involving operational borrowing and contract guarantees, legal advice should be sought from a professional lawyer.Business and contract dispute resolution services for enterprisesTeam collaborative evaluation.

IV. Practical suggestions and legal basis

The core basis is Article 1064 of the Civil Code of the People's Republic of China (effective January 1, 2021): Debts arising from a joint expression of intent, such as a joint signature by both spouses or a subsequent recognition by one party, and debts incurred by one party in the name of the family for daily living needs during the marriage, are considered marital joint debts; debts incurred by one party in excess of daily living needs are generally not considered joint debts, unless the creditor can prove that the debts were used for the marital life, joint production and operation, or based on the joint expression of intent of both parties. Article 1089 stipulates that joint debts should 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 a division of marital property when the other party falsifies joint debts or otherwise seriously damages the interests of the common property; Article 1092 stipulates that if a party falsifies joint debts in an attempt to misappropriate the other party's property, the court may award a smaller share or no share during the division. Article 35 of the Interpretation 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 a divorce agreement or legal document does not affect the creditor's right to claim against both parties for joint debts; if one party recovers the debt from the other party after assuming responsibility, the court shall support such recovery. Practical advice: It is essential to sign agreements with caution, keep all supporting documents, and promptly sue if any abnormalities are detected. These three actions are indispensable.

5. Henglu Law Firm's Advice

The outcome of debt disputes hinges on evidence and timing: After receiving collection or litigation materials, promptly verify the signing status and track the flow of funds. If necessary, apply for a court investigation order to retrieve the other party's account transaction records. If the debt is indeed the other party's personal obligation, firmly defend against it rather than privately promising to repay; if it is a joint debt, clarify internal recovery arrangements and retain relevant evidence. Never sign repayment commitments under pressure or use personal assets to make advance repayments, as this may jeopardize your right to defense. If you are currently facing similar disputes, it is recommended to consult a professional lawyer as soon as possible to sort out the debt list and evidence plan. The above-mentioned divorce-related property disputes are handled by Beijing Henglue Law Firm.Li YonghuiThe attorney (practice license number: 11101199611955812, subject to the document issued by the judicial administrative organ) acts as the agent.

Q1: If my spouse borrowed money behind my back, do I have to repay it together with them?

Not necessarily. According to Article 1064 of the Civil Code of the People's Republic of China, joint debts are limited to three categories: debts incurred by mutual expression of intent, such as both parties signing the agreement or one party's subsequent recognition; debts incurred for the daily needs of the family; and debts borrowed in the name of one party that the creditor can prove are used for the couple's common life, common production and operation, or based on the mutual expression of intent. For loans signed by one spouse alone with an amount significantly exceeding the level of daily consumption and whose fund flow is unrelated to the family, it is necessary to actively defend against the claim and apply for retrieving the transaction records. Passively responding to the lawsuit or verbally denying the debt without providing evidence may lead to unfavorable determinations. The opportunity to defend oneself often lies in preserving evidence.

Q2: The divorce agreement stipulates that all debts belong to the other party. Can the creditor still come after me?

Yes. The debt-sharing agreement in the divorce agreement is only effective within the couple and cannot be used against bona fide creditors. According to Article 35 of the Judicial Interpretation of the Marriage and Family Code (I), if the divorce agreement or court legal documents deal with the property, the creditor still has the right to claim rights from both parties for the couple's joint debts; if one party assumes the repayment responsibility exceeding his or her share, he or she may recover the debt from the other party according to the agreement. Therefore, the debt provisions in the agreement should be based on an accurate determination of the nature of the debt: if it does not belong to a joint debt, it should be defended in litigation based on its nature, rather than "transferred away" by the agreement; if it is indeed a joint debt, it should be repaid first, and then the creditor can recover the debt according to the agreement and the payment vouchers.

Q3: How to prove that the money borrowed by the other party was not used for family life?

Evidence can be organized from three aspects: First, the flow of funds. Request the bank statement of the account where the loan was deposited to track whether the funds were transferred to other accounts, used for investment and speculation, repayment of old debts, or personal consumption. Second, a comparison of family income and expenditure. Use family income and savings to demonstrate that there was no need to borrow money for daily needs during the same period. Third, communication records. Collect the borrower's explanation of the purpose of the loan and statements in the chat records that are unrelated to the family. Regarding the burden of proof, large loans exceeding daily living needs must be proven by the creditor to be used for joint living. However, if one spouse actively provides evidence to refute the claims, it can significantly increase the success rate of the defense. Waiting for the other party to provide evidence often misses the opportunity to secure fixed evidence.

Q4: If the other party fabricates debts and wants me to be "in debt", what should I do?

Falsified debts are not protected by law and can lead to serious consequences. Possible measures include: applying for a judicial appraisal of the formation time and handwriting of the IOUs; applying to the court to review the so-called lender's financial strength and delivery certificates, as it is difficult to establish a fictitious loan relationship; according to Article 1066 of the Civil Code, if one party falsifies a joint marital debt and seriously damages the interests of the joint property, the other party may request a division of the joint property during the marriage; according to Article 1092, if a party falsifies a joint debt in an attempt to misappropriate the other party's property, the court may award a smaller share or no share during the divorce settlement. After discovering clues of forgery, evidence should be immediately fixed and explained to the court, and corresponding legal responsibilities should be investigated if necessary.

Q5: If I discover that my spouse has taken on large debts before our divorce, can I apply for property preservation?

Yes. In divorce litigation or debt disputes, if the situation is urgent and failure to take preservation measures will lead to difficulties in enforcing judgments or cause other damages, the party may apply for property preservation in accordance with the relevant provisions of the Civil Procedure Law of the People's Republic of China. The court may require the applicant to provide guarantees for such measures as sealing or freezing the property, vehicles, deposits, equities, etc. owned by the other party. If the situation is urgent before the lawsuit, the party may also apply for pre-litigation preservation and sue as soon as possible. Preservation can prevent the other party from transferring or squandering property during the litigation, creating conditions for subsequent property division and debt settlement. However, it requires providing clear clues to the property. It is recommended to prepare the guarantee and clue materials under the guidance of a lawyer.

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