How should the divorce property division and child custody be handled due to the lack of emotional foundation, where the male party subjected the female party to violence, followed by years of separation, and how to collect evidence in the face of domestic violence

Case Summary

The plaintiff (the female party) and the defendant met through the introduction of relatives and friends, and were married on [Date] in [Year]. After marriage, they had a son, Chen YZ, who is now 14 years old and has been living with the plaintiff. Due to limited pre-marital understanding and a weak emotional foundation, the couple got married in a hurry under the urging of their relatives. After marriage, the couple often failed to communicate due to personality conflicts and were in a long-term cold war; and the defendant also had a history of domestic violence against the plaintiff when the child was young. The defendant has since moved out and lived elsewhere, and the couple have been separated since then. Now, the feelings between the plaintiff and the defendant have indeed broken down, and there is no possibility of continuing to live together. Therefore, the plaintiff has filed a lawsuit with the court seeking a divorce and the division of property, and requesting that custody of the child be awarded to the plaintiff.

Proceedings

The defendant, Chen MJ, argues: First, the plaintiff and the defendant have been separated for a long time, their feelings have indeed broken down, and they agree to a divorce; second, the child born of the marriage was once cared for by the defendant's family, and regarding the custody of the child, the defendant hopes to seek the opinion of the child; third, regarding the two properties involved, the defendant also requires the legal division of the two properties and the two additional properties within the marriage: 1. The property at [Address] in Luohu District, Shenzhen, which is a public housing obtained by the defendant before marriage, later taken over by the defendant alone for the bank mortgage, and changed to the names of both the plaintiff and the defendant after marriage, with each holding a 50% share. The mortgage has been paid off; 2. The property at [Address] in Luohu District, Shenzhen, purchased after marriage, registered in the name of the defendant, and the mortgage has been paid off; 3. The property at [Address] in Luohu District, Shenzhen, purchased after marriage, registered in the name of the plaintiff; 4. The property at [Address] in Luohu District, Shenzhen, purchased after marriage, registered in the name of the plaintiff. The defendant agrees to a divorce and requests the legal division of the joint property after marriage.

The court has considered the relevant facts of the case: 1. Marriage and childbirth: The plaintiff and the defendant were married at the Civil Affairs Bureau of Luohu District, Shenzhen on [Date] in [Year], and gave birth to their son Chen YZ on [Date] in [Year]. 2. Existence of circumstances for granting a divorce: The defendant agrees to a divorce. 3. Circumstances affecting child custody: The son Chen YZ of the plaintiff and the defendant has now turned 14 years old, and he expressed his willingness to live with the plaintiff. The defendant said he respected his son's wishes. 4. Circumstances affecting child support: The son Chen YZ of the plaintiff and the defendant is currently studying and living in Shenzhen. The plaintiff has retired and has a monthly retirement pension of over 3,000 yuan. The defendant claims to earn over 8,000 yuan per month, but the plaintiff did not confirm this and applied to obtain the defendant's income information. The defendant's employer issued a "Proof" stating that the defendant's pre-tax income is 8925.7 yuan. However, the plaintiff did not confirm this proof. The defendant agreed to pay child support of 2500 yuan per month. 5. Property owned by either spouse or jointly owned by both: The plaintiff claims that the property at [Address] in Luohu District, Shenzhen and the property at [Address] in Luohu District, Shenzhen belong to the joint property of the couple, the defendant confirms that the property at [Address] in Luohu District, Shenzhen belongs to the joint property of the couple, and claims that the property at [Address] in Luohu District, Shenzhen is his personal property before marriage. The property at [Address] in Luohu District, Shenzhen is currently registered in the name of the defendant, and both parties confirm that the current value of the property is 1,700,000 yuan, and the plaintiff claims the ownership of the house. The property at [Address] in Luohu District, Shenzhen is currently registered in the names of both the plaintiff and the defendant, each holding a 50% share, and both parties confirm that the current value of the property is 2,500,000 yuan, and the defendant claims the ownership of the house. The defendant claims that the property at [Address] in Luohu District, Shenzhen and the property at [Address] in Luohu District, Shenzhen belong to the joint property of the couple, the plaintiff confirms that the property at [Address] in Luohu District, Shenzhen belongs to the joint property of the couple, and claims that the property at [Address] in Luohu District, Shenzhen is his personal property purchased before marriage. The property at [Address] in Luohu District, Shenzhen and the property at [Address] in Luohu District, Shenzhen are currently registered in the name of the plaintiff. Both parties confirm that the current value of the property at [Address] in Luohu District, Shenzhen is 2,000,000 yuan, and the plaintiff claims the ownership of the house. 6. Debt owed by either spouse or jointly owed by both: The plaintiff and the defendant confirm that there is no joint debt or credit.

Court Decision

1. Grant the plaintiff Cong M and the defendant Chen MJ a divorce. 2. The son Chen YZ of the plaintiff and the defendant is to be cared for by the plaintiff Cong M, and the defendant Chen MJ must pay child support of 2500 yuan per month starting from the month when this judgment takes effect until the child turns 18 years old. 3. The property at [Address] in Luohu District, Shenzhen is to be owned by the defendant Chen MJ, and the plaintiff Cong M must cooperate with the defendant Chen MJ to handle the transfer of ownership within one month from the date when this judgment takes effect. 4. The property at [Address] in Luohu District, Shenzhen is to be owned by the plaintiff Cong M. 5. The property at [Address] in Luohu District, Shenzhen is to be owned by the plaintiff Cong M, and the defendant Chen MJ must cooperate with the plaintiff Cong M to handle the transfer of ownership within one month from the date when this judgment takes effect. 6. The plaintiff Cong M must pay the defendant Chen MJ a compensation of 600,000 yuan for the house within one month from the date when this judgment takes effect. 7. The other claims of the plaintiff and the defendant are dismissed.

Analysis by Dao Hua Lawyer

Considering the circumstances of this case, it can be confirmed that the plaintiff and the defendant have confirmed that their marriage has indeed broken down and the defendant also agrees to a divorce. In such cases, the court will usually grant a divorce. Dao Hua Lawyer focuses on the analysis of post-divorce alimony and property division issues: 1. Custody issues: The child Chen YZ born of the marriage has now turned 14 years old, and he expressed his willingness to live with the plaintiff. When dealing with custody disputes, the court will consider the child's age, educational facts, the economic conditions of both parents, the child's wishes, and whether both parents can assist in caring for the child, among other factors, to make a determination. In this case, the court considered the child's wishes and educational situation and ruled that the child Chen YZ should be cared for by the plaintiff. However, the plaintiff claimed that the defendant should pay child support of 4000 yuan per month, and after investigation by the court, the defendant's pre-tax monthly income is about 9000 yuan. Although the plaintiff did not confirm the proof issued by the defendant's employer, he did not submit any contradictory evidence. Therefore, the court legally adopted this proof. Regarding the determination of child support, according to Article 7 of the "Several Specific Opinions of the Supreme People's Court on the Handling of Issues of Child Support in Divorce Cases," the amount of child support may be determined based on the actual needs of the child, the financial burden of both parents, and the local living standards. For those with a fixed income, child support is generally paid at a rate of 20-30% of the total monthly income. Therefore, the court decided that the defendant must pay child support of 2500 yuan per month until the child turns 18 years old, and the plaintiff's request for an amount exceeding this was not supported. 2. Property ownership issues: 1. The plaintiff claims that the property at [Address] in Luohu District, Shenzhen belongs to the joint property of the couple, but the defendant does not confirm this. Dao Hua Lawyer believes that although the property was purchased by the defendant before marriage, it was registered in the names of both the plaintiff and the defendant after the change of certificate, with each holding a 50% share, so the property belongs to the joint property of the couple and should be divided. Considering that both parties confirm that the current value of the property is 2,500,000 yuan, and the defendant claims the ownership of the house, the property is awarded to the defendant, but the defendant must pay the plaintiff a compensation of 1,250,000 yuan, and the plaintiff should cooperate with the defendant to handle the transfer of ownership. 2. Both parties confirm that the property at [Address] in Luohu District, Shenzhen belongs to the joint property of the couple, and the current value of the property is 2,000,000 yuan. The plaintiff claims the ownership of the house, so the property is awarded to the plaintiff, and the plaintiff must pay the defendant a compensation of 1,000,000 yuan. 3. The defendant claims that the property at [Address] in Luohu District, Shenzhen is joint property, but the property was actually purchased by the plaintiff before marriage, so the property should belong to the plaintiff. 4. Both parties confirm that the property at [Address] in Luohu District, Shenzhen is joint property, and the current value of the property is 1,700,000 yuan. The plaintiff claims the ownership of the house, so the property is awarded to the plaintiff, but the plaintiff must pay the defendant a compensation of 850,000 yuan, and the defendant should cooperate with the plaintiff to handle the transfer of ownership. In summary, for jointly owned property, if one party claims ownership, then the other party should be compensated for their share. Therefore, after offsetting the mutual property compensation claims of the plaintiff and the defendant, the plaintiff still needs to pay the defendant a property compensation of 600,000 yuan. 3. Regarding the domestic violence claim made by the plaintiff, but no evidence was submitted, so it was not possible to prove the occurrence of domestic violence. Lawyers remind: When encountering domestic violence, one should promptly use the weapon of law to defend their rights, actively preserve evidence, and, if necessary, report to the police for handling. The police's filing receipt can also be used as evidence, and relevant medical records should be preserved.

Special Note

1. The above content is for general reference only and does not constitute legal advice or basis for a specific matter; 2. Copyright of Dao Hua Law Firm, please indicate the source and author if reproduced.