[Chatting] Dink couple divorced after husband said, "Let's have kids."300 Million Loan Debt Is Subject to Property Split?

□ Broadcast date and time: October 14, 2024 (Mon)
□ Host: Attorney Cho In-seop
□ Cast: Attorney Jung Du-ri

* The text below may differ from the actual broadcast content, so please check the broadcast for more accurate information.

◇ Lawyer Cho In-seop (hereinafter referred to as Cho In-seop): When playing Go, a trainer who is watching from a distance one step away often points out a trick. It is said that the reason why the spectators see a great number is because they look at the checkerboard one step away without the burden of winning or losing, so why don't you look at the complicated things one step away? Lawyer Cho In-seop's Counseling Center will open now.

◇ Jo In-seop: Lawhouse for you, with lawyer Jung Du-ri.

◆ Lawyer Jung Du-ri (hereinafter referred to as Jung Du-ri): Hello, I'm lawyer Jung Du-ri of Shinsegae Law Firm.

◇ Jo In-seop: Let's first see what kind of concerns you have if you come to the counseling center today.

□ Reporter: I met my husband for the first time with the introduction of my boss. We talked well from the first meeting. The fact that we're both a dink and like reading books... Even my favorite writer was the same. We quickly got close, and naturally got married. My husband and I had no children, so we were able to focus on our work rather than our parenting colleagues. Thanks to this, I think I was able to rise to a recognized position at work. Our couple's salary was managed on their own, and joint expenses such as food, utility bills, and housing expenses were put into a public bank account of 1 million won per month. However, there was an opportunity for me and my husband to fall out. My couple's favorite novelist didn't win the Nobel Prize in literature. But my husband suddenly told the author that he seemed to have a narrow view of the world because he didn't have a baby. Then, we asked to have a baby, saying, "Shouldn't we try what others do?" I was so dumbfounded because I got married after agreeing not to have children. I don't know how many times I fought over it. My husband didn't give up and I ended up asking for a divorce. I filed for divorce because there was no divorce agreement, and in the process, my husband insisted that the 300 million won loan debt incurred during his marriage should be included in the marital joint property. But the problem is that I didn't know about the loan debt. I'd like to know if the debt I didn't agree with is also included in the property division.

◇ Cho In-seop: The couple was a dink couple, <Attorney Cho In-seop's Counseling Office>, but her husband's mind changed and she ended up filing for divorce. Married with a promise not to have children, but is it common for one person's mind to change in the middle of a marriage?

◆ [Jeong Du-ri] Yeah, I think it's too common for values to change when we live together.

◇ Cho In-seop: I think you're in conflict because of the division of property. When it comes to property division... When you divorce, you think you divide your husband's property in half, but what does our law say is subject to property division?

◆ Jung Du-ri: Article 839-2 (2) of the Civil Code requires the division of property in consideration of the amount of property achieved through cooperation between both parties and other private matters, and the subject of the division of property refers in principle to property achieved through cooperation between both couples during marriage. Articles 830 (1) and 831 of the Civil Code stipulate that a couple's own property before marriage and a couple's property acquired in their name during marriage are "special property" and each manages, uses, and profits it. However, our Supreme Court calls the property acquired by one of the couple in his or her name without the other's cooperation and, in principle, is not subject to the division of property, so the property subject to the division of property belongs to one of the couples, but in reality, it is distinguished from "real public property" that belongs to the couple's common property or "public property," which belongs to the couple's common property.

◇ Cho In-seop: Then... What do you mean by debt?

◆ Jung Du-ri: Yes, the Supreme Court ruled that in the case of debt, in principle, the debt borne by one of the couples to a third party during the marriage is not subject to liquidation as the individual's debt except for daily households, but the debt borne by the formation or maintenance of the common property is subject to liquidation (the Supreme Court sentenced on September 14, 2006 and 2005Da74900, the Supreme Court sentenced on March 10, 2011). 2010me4699, 4705, 4712). Since it is difficult to directly divide and take over the debt, it is usually settled by deducting the amount equivalent to the debt from the value of the active property subject to division (the Supreme Court's sentence of 94m1072 on December 2, 1994). However, in the case of collateral security liabilities under the other party's name as collateral for the real estate attributable to the claimant for the division of the property, the division of the property was also allowed to order the acquisition of the debt (the Supreme Court sentenced on January 10, 2003 2002 Mme1442 and 1459).

◇ Jo In-seop: What if the total amount of passive property of both parties exceeds the total amount of positive property?

◆ Jung Du-ri: Yes, our court said in the past that it was not possible to claim the division of property in such cases, but changed the existing precedent of the Supreme Court's sentence 2010m4071 and 4088 en banc decision on June 20, 2013, and decided, "Even if the total amount of passive property exceeds the total amount of active property and the result of the division of property ultimately determines the division of debt, the court may accept the request for division of property by requesting specific methods of division, etc., if it is deemed appropriate to share it, such as the nature of the debt, the relationship with the creditor, and the existence of physical collateral."

◇ Cho In-seop: Even in the case of excess debt counterparties, property division claims are not always accepted, right?

◆ Jung Du-ri: In excess of debt, claims for division of property are not always accepted, and if the debt is shared by the division of property, it becomes excess debt or the existing debt becomes worse. In cases where the debt burden, the purpose of the debt, the details and amount of the debt, the process of marriage, the economic activity ability of the party and the future prospects shall be comprehensively considered to determine whether or not to share the debt and the method of sharing, and it is not necessarily attributable to the division by setting a uniform ratio based on the contribution to the formation of property, etc. as in the case of division of active property.

◇ Cho In-seop: So what about you?

◆ Jung Du-ri: Yes, in the end, if the debt borne by one of the couples to a third party during the marriage is not about the daily household or the debt borne by the formation and maintenance of the couple's joint property, it will not be subject to division. For example, if a couple has a negative bank account to cover joint living expenses or child support expenses, or if they receive a lease loan to prepare an apartment to live with their spouse, it can be regarded as a debt borne by the formation and maintenance of joint marital property. In the case of the sender, the couple's joint living expenses were paid at the same rate, and they did not jointly manage each other's salaries, but managed them separately. In addition, even if the five-year living expenses of 1 million won per month paid by the husband are calculated and added to the total amount, it is only 60 million won, so the entire 300 million won debt that the husband borrowed cannot be regarded as a debt borne by the formation and maintenance of joint marital property.

◇ Jo In-seop: How can I defend the claim that the spouse incurred a debt of 300 million won to share the cost of co-living for the couple?

◆ Jung Du-ri: Yes, in that case, you will first have a joint account, so you should submit the account details that you paid for half of the living expenses, and the details of the couple's joint living expenses such as subscription, insurance premiums, and monthly rent. You should submit the account transfer details or credit card usage details, apply for an inquiry about your husband's deposit transaction details, secure the deposit transaction details, and reveal to what account you received when you borrowed 300 million won and spent it under what name.

◇ Jo In-seop: Now, to summarize what we've done so far... In case of divorce, the subject of property division is the property achieved through the cooperation of the couple during marriage, and in principle, the unique property is not subject to property division. Debts are usually the responsibility of individuals, but debts incurred for common property can be settled. Even if the couple's debt is higher than the property, the court can see the situation and accept the claim for property division. Claims for property division are not always accepted even in case of debt excess, and you have to look at the different situations and decide how to divide them. In the case of you, your husband's loan is not related to the marital joint property, so it is unlikely to be subject to division. To defend your husband's claim of joint living expenses, you must submit the details of the joint account and expenditure to prove that 300 million won was not spent on joint living expenses. So far, I've been with lawyer Jung Du-ri.

◆ Jung Duri: Thank you.

◇ Cho In-seop: You can listen to <Attorney Cho In-seop's Counseling Office> again on YouTube. If you have any questions or suggestions, please comment.