[Share that everyone can understand the law]
In the previous article, we analyzed that if the two parties are indeed unable to live together due to emotional discord, then they can talk calmly about whether they can divorce by agreement, regarding child support and joint property division. The marriage relationship can be dissolved by reaching an agreement through full negotiation on matters such as creditor's rights and debts. If both parties cannot reach an agreement on the above matters and one party insists on divorce, then the divorce can only be obtained through court litigation. Next, let's learn about the process of divorce through litigation. We will analyze the program flow and the problems that entities need to solve one by one later.
Factors that should be considered when filing a case
1. First, we need to determine which level of court to sue in (level jurisdiction)
First of all, we need to determine which court to sue in. Although this is a procedural matter, it is a key link. The court has grassroots people. Courts, intermediate people's courts, higher people's courts, and supreme people's courts, divorce cases are generally under the jurisdiction of basic people's courts, that is, county-level people's courts, county-level city people's courts, autonomous county people's courts, or municipal district people's courts will accept cases.
2. Determine in which region the case will be filed. Regional jurisdiction
Divorce cases are civil cases. The general principle is "the plaintiff is the defendant", which means that the lawsuit is filed where the defendant is located. The location has two meanings. One is the location of the household registration (ID card). The other is his usual place of residence. 's usual place of residence needs explanation. It refers to the place where he has left his registered residence and lived in another place for more than one year. Generally, the information on the residence permit issued by the police shall prevail.
What if both husband and wife work and live in the same city for a long time? Can I file for divorce in the city where I live?
is really not necessarily the case.
We handle a lot of litigation cases, and geographical jurisdiction is a rather difficult issue because the degree of urbanization is very high and the population moves quickly, so it is normal to work or settle down now. If both parties have lived in this city for a long time and both have applied for residence permits for more than one year, then according to the law, they can file for divorce in the city where they are located.
If you have been working in one place for a long time, but have not applied for the relevant residence permit, and there is no other evidence to prove it, you cannot be sure that you have lived in this city for more than one year. If you want to sue for divorce, you can only go back to the other party's place of residence to sue.
Legal basis: Article 12, paragraph 1, of the "Judicial Interpretation of the Civil Procedure Law" stipulates that if one spouse has left his or her place of residence for more than one year and the other spouse files for divorce, the case may be under the jurisdiction of the People's Court of the plaintiff's place of residence. If the couple has been away from their place of residence for more than one year and one party files a divorce case, the case shall be under the jurisdiction of the people's court of the defendant's habitual residence; if there is no habitual residence, the case shall be under the jurisdiction of the people's court of the defendant's place of residence when the plaintiff filed the lawsuit.
3. After determining the jurisdiction, what materials need to be provided to the court?
A: Drafting a divorce complaint. A civil complaint is a legal document that should be submitted when filing a divorce lawsuit. It mainly includes:
1) Original and defendant information , household register, ID card, residence permit information, child birth certificate, etc.
including the original , the basic information of the defendant, mainly including name, gender, age, ethnicity, occupation, workplace, residence, contact information
2) Litigation requests, the first three are regular items
first, dissolution of marriage;
second, minor Who will support the children, the amount, payment method and payment period of child support.
The third is division of common property;
The fourth is compensation for damages.
Fifth, if you require compensation for housework, state the amount.
Sixth, if the litigation costs need to be borne by the other party, directly state that the litigation costs of this case will be borne by the other party.
3) Facts and reasons for prosecution
Generally try to be as concise and clear as possible, without the need for lengthy statements. The purpose is to start the litigation process. Some facts can be elaborated in detail during the court session. At the same time, do not use excessive language and try to be objective and true.
Generally includes when the two parties met, when they got married, what was their relationship like before and after marriage, and whether they have children. If they have children, the name, gender, and age of the children should be stated, and examples should be cited to explain the reasons and main reasons for the breakdown of the relationship between the couple. Facts and reasons.
4) The evidence materials that need to be provided (in duplicate)
In addition to the complaint and the subject information of both parties (ID cards, residence certificates), the following materials are also required;
Marriage certificate to prove the marriage relationship of both parties,
Birth certificate, children identity relationship,
property evidence, real estate certificate, vehicle certificate, etc.
Other evidence: For evidence that you cannot collect by yourself, you can apply to the court to obtain it, such as bank statements, account information, etc.
Generally speaking, according to judicial practice, if one party does not insist on divorce, it is unlikely that the court will support the divorce for the first time, so the basic evidence provided is enough, and additional evidence can be provided following the progress of the case.
The implementation of the court case registration system has solved the problem of difficulty in filing cases.
5) The court accepts the case and pays the litigation fees.
Now our country implements the "case registration" system. As long as the basic materials are complete and the basic legal facts can be proved, the court can basically accept the case and pay the litigation fees.
The payment of litigation fees may be made at the scene of the incident. If it is If a case is filed online, the case acceptance fee will be paid in advance within 7 days from the next day after receiving the notice from the People's Court to pay the litigation fees, and the case will be paid as required in a timely manner. Otherwise, the court will dismiss the case if it is overdue.
The above are the materials and processes that need to be prepared for divorce.
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