Divorce lawyer talks about divorce property division and child support... The court looks at ‘substance’

Most of those who decide to divorce face the harsh wall of reality along with deep emotional turmoil. Especially when it comes to property division and child support issues, the wall gets even higher. If your spouse continues to unilaterally notify you by saying things like, “I can’t give you a penny because I don’t have any assets in your name,” or “I quit my job, so I don’t have the money to pay child support,” your eyes will inevitably turn dark. The court's judgment surrounding property division and child support is far from these superficial claims.

The core of property division is (1) thorough exploration and understanding of the other party's property, and (2) contribution to property formation and maintenance. In particular, in the case of contribution, in accordance with Article 839-2 of the Civil Act, if there is no agreement on the division of property, the family court determines the amount and method of division by taking into consideration the amount of property achieved through the cooperation of both parties and other circumstances. If you have been a full-time housewife for decades, devoting yourself to housework and childcare, and maintaining your family, you can be recognized as having made a key contribution to the wealth formation process, even if you do not have any assets in your name.

Conversely, in child support issues, liability cannot be avoided simply by claiming that there is currently no income. This is because the court imposes an obligation to support children by calculating the possibility of future income-earning activities, that is, ‘estimated income’, based on past income, education, experience, etc. This is in accordance with the general principle of parenting that the child's welfare must be considered top priority, and does not exempt parents from responsibility simply because they do not currently have any income.

A recent case I handled well illustrates the court's 'substantive judgment' principle. Client A, who had been a full-time housewife for 30 years, filed for divorce from her husband. The husband dismissed Mr. A's contribution, saying that all real estate and deposits were financed with his own business income. When the lawsuit began, he even hid his assets by transferring the business he was running into the name of his eldest son, who was an adult, and withdrawing his deposits. He also tried to avoid paying child support to his second son, who was still a minor, by claiming that he had no income.

After meeting the client, I carefully reviewed the circumstances of the case. In particular, it focused on verifying the assets hidden by Ms. A's husband, how Ms. A's housework contributed to the increase of the husband's assets, and that the husband's cessation of income-generating activities was aimed at avoiding child support. As a result, concrete data proved that Ms. A supported her husband's initial funds for the business and helped her husband focus solely on the business by creating a stable family environment. In addition, we obtained financial transaction details and statements from people around her that the husband was exercising actual operating rights even after transferring the business to his son.

Based on the evidence submitted by the author, the court not only rejected the husband's claim that Mr. A's contribution was 0%, but also did not accept the husband's claim that he had no current income. The court regarded the assets (business stocks, deposits, etc.) that the husband had concealed just before the divorce suit as ‘estimated assets’ and fully reflected them in the property division, and also recognized Mr. A’s contribution as being quite high. Furthermore, in determining child support, the court ruled that the full amount of child support requested by Mr. A should be paid by calculating 'estimated income' based on past income data and the actual operation of the business.

As can be seen from this case, divorce litigation is a process of obtaining a result using legal standards and objective evidence, not emotional appeals or one-sided claims. Therefore, rather than giving up hastily or responding emotionally to the other party's unfair claims, we must seek legitimate rights through a systematic response. Above all, we must keep in mind that the initial collection of evidence and organization of facts based on the review of the matter and the establishment of a strategy prior to litigation are key factors that determine the outcome of the case.

Attorney Doyoung Do of Daeryun Yeouido Law Firm said, "In matters of property division and child support, the court considers actual contributions and responsibilities beyond superficial facts such as title or current income. A lawyer must listen to the client's story and give a lot of thought to how to argue and persuade the court." “The most important thing is to secure sufficient objective data, such as surrounding circumstances, and to refute the case by clarifying the facts and securing legal evidence with the help of experts from the early stage of the lawsuit, so that you can cool-headedly protect your rights without being swayed by emotions,” he said.

Reporter Jin Ga-young, Lawissue news@lawissue.co.kr

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Divorce lawyer talks about divorce property division and child support... The court looks at the ‘substance’ (go)