[Smiling] With the help of my father-in-law, I studied abroad and opened a hospital... "Should I spit it out when we divorce?"

□ Broadcast date and time: October 31, 2024 (Thursday)
□ Host: Attorney Cho In-seop
□ Cast: Attorney Yoo Hye-jin

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

□ Reporter: My wife and I are a couple of the same age. When I was in medical school, I met you through my friend's introduction. We were in a relationship for two years and got married. My wife's family was financially relaxed. So when I got married, I got a rented apartment in Seoul with the help of my wife's family. As a doctor, I worked at a hospital with a close senior, and my wife was a stay-at-home mom, managing household chores and money by raising children. My father-in-law was a famous investor, and my wife also had a knack for rolling money. I also worked hard in my own way. Thanks to that, I was able to buy a bigger flat in Seoul. A few years later, I opened a hospital, and I went to the United States to study by chance. After finishing my studies, I ran a hospital for Korean residents in LA. Then I came back to Korea, and I fought with my wife very often. It was because my wife interfered in everything while preparing to open in Seoul. I couldn't stand it, and I ended up separating. My wife and I have agreed to divorce, but we have not been able to narrow our differences in property division. Even after she got married, she continued to receive financial support from her wife's family, and there are many stocks that have been donated. But he drew a line saying that the money could not be divided. I worked alone throughout my marriage and was responsible for my family's livelihood. It's even more unfair because I left all the money management to my wife. Is there a way to get divided?

◇ Lawyer Cho In-seop (hereinafter referred to as Cho In-seop): < Attorney Cho In-seop's Counseling Office> Today, it was about the division of property. To be honest... There are a lot of people looking for a lawyer because of the division of their property, right?

◆ Lawyer Yoo Hye-jin (hereinafter referred to as Yoo Hye-jin):

◇ Jo In-seop: You say it's unfair that your wife can't split the property she received at home, but she received it at home! These properties are called 'special properties', right?

◆ Yoo Hye-jin: Yes, regardless of the property owned by each person before the marriage or the cooperation between the two parties during the marriage, the property that one of the couples receives as an inheritance, gift, or bequest is called a unique property. In principle, it is considered that unique property is not subject to property division.

◇ Cho In-seop: It's a principle to think that unique property is not subject to property division. Are there any exceptions?

◆ Yoo Hye-jin: Yes, the court believes that even if it is unique property, it can be exceptionally subject to property division if it is recognized that the other party actively cooperated in the maintenance or formation of the unique property to prevent the reduction and then cooperated in the proliferation (the Supreme Court sentenced on May 25, 1993 to 92m501 ruling, etc.).

◇ Jo In-seop: Is there a case related to that?

◆ Yoo Hye-jin: The Supreme Court considered that even if the apartment was her husband's property acquired before marriage, if she actively cooperated with the maintenance of the apartment, such as paying off some of the loan debt related to the purchase of the apartment after marriage, it would be subject to property division (the Supreme Court sentenced on February 9, 1996, 94M635, 642 ruling, etc.).

◇ Cho In-seop: Please also introduce cases that have not been recognized as contributing to the maintenance or formation of unique property.

◆ Yoo Hye-jin: The Supreme Court excluded the special property from the property division if the other party who requested the division of the property only covered the insufficient living expenses with the rent income of the unique property acquired before marriage and supported the daughters' study abroad expenses, and if there is no other reason to believe that it contributed to the increase, maintenance, or prevention of the value of the property (the Supreme Court sentenced on April 26, 2007 2005M252 and 2568).

◇ Cho In-seop: What about you? Are my wife's shares not subject to property division, but rather characteristic property?

◆ Yoo Hye-jin: You are expected to have earned a high income as a doctor, and you have been engaged in economic activities throughout your marriage on a single income. Considering this, there is ample room for the writer to believe that he directly or indirectly contributed to maintaining the value of his wife's stock and preventing it from decreasing during his economic activities. Therefore, even if the wife's stock is unique property, it can be regarded as a real marital joint property, so it should be subject to property division.

◇ Cho In-seop: If you were married and even paid dividends with the stocks your wife was gifted with, could dividends be included in the division of property?

◆ Yoo Hye-jin: Yes, it would be fair to acknowledge the dividends paid by the wife as stocks donated during the marriage period as well, considering that the wife worked as a doctor for most of the marriage period and that she managed a large portion of her income. If there is a circumstance that the number of shares of the wife has increased due to dividends, it is reasonable to see this also as an increase in the number of shares through marital joint property.

◇ Jo In-seop: Let's look a little bit more at the property that is subject to property division. Can I claim for division of property in the name of myself or a third party other than my spouse?

◆ [Yoo Hye-jin] That's right. It doesn't necessarily matter whose name the property is in. Therefore, it is the attitude of the Supreme Court precedent that even property registered in the name of the claimant for the division of property or property trusted by a third party can be claimed for division (the 92m11054 ruling on June 11, 1993 and the 2011m1116 and 1123 ruling on July 12, 2013). Furthermore, even property in the name of a third party is considered to be subject to property division in the sense that if there are circumstances that are actually controlled by one couple and were formed through cooperation between both couples, these circumstances must also be taken into account (the Supreme Court sentenced on April 10, 1998 on 96m1434).

◇ Cho In-seop: What about severance pay? Could it be subject to property division?

◆ Yoo Hye-jin: The past precedent was that if one of the couples is working without retirement, the future severance pay cannot be included in the property subject to liquidation just because there is a possibility of receiving severance pay in the future, and it is sufficient to take into account other circumstances. However, the Supreme Court changed the precedent in 2014 and believes that even if one of the couples was still in office at the time of the divorce and did not receive actual retirement benefits, any retirement benefit bond property that already exists at the end of the divorce suit and can provide a realistic evaluation of its economic value can be included in the property division (the Supreme Court sentenced on July 16, 2014). Specifically, bonds equivalent to retirement benefits that are expected to be received if they retire at that point based on the conclusion of the factual hearing of the divorce lawsuit are included in the target.

◇ Jo In-seop: Now, to summarize what we've done so far... Characteristic property is property owned, inherited, or gifted before marriage and is not subject to property division in principle. Even a unique property can be subject to property division if one party helps to protect it, but... If you contributed to maintaining the value of your wife's stock, the stock can be considered as the object of property division, even if it is a unique property. Dividends of shares donated by a wife can be recognized as marital joint property, and if the number of shares has increased due to dividends, it can also be viewed as joint property. Regardless of the property name, it is possible to claim property division, and even if it is actually controlled or formed in cooperation by the couple, it is subject to division. Future severance pay can be subject to property division if its economic value can be assessed even if it is in office at the time of divorce. You've been with lawyer Yoo Hye-jin.

◆ Yoo Hye-jin: 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.