The husband sentenced to imprisonment, wife seeks divorce, Dao Hua lawyer intervenes in mediation, skillfully resolves the contradictions between both parties, assists the wife in obtaining a quick

Introduction:The story begins in 2016 when Ms. Li, the female party, met Mr. Fang, the male party. They got to know each other, fell in love, and got married. In 2017, due to an unexpected pregnancy, they quickly entered the marriage hall. Unexpectedly, there was a huge difference between the man before and after marriage. He neglected the care of the female party and the child, and often subjected the female party to illegal detention, marital rape, and other violent behaviors, causing the female party immense pain. In 2019, the male party was sentenced to three years of imprisonment for fraud. After regaining personal freedom, the female party sought the help of the Daohua Family Law Firm to seek a quick divorce. After accepting theentrustment, the Daohua lawyers quickly formulated a solution, collected evidence of domestic violence and separation for the female party, and went to mediate, ultimately achieving the female party's full demands for a quick divorce and the custody of the child born during the marriage.

Keywords:Divorce mediation, litigation divorce, custody disputes, imprisonment sentences

One, Case Review

In 2016, Ms. Li and Mr. Chen met. In 2017, Ms. Li discovered an accidental pregnancy and the two registered their marriage in April 2017. In the same year, their son was born in November.

After marriage, the husband often played outside until midnight, neglecting the wife and child. The child lived with the parents, and during this period, the paternal grandparents and grandfather had taken care of the child. In 2019, the couple often had fierce arguments. After the wife expressed her dissatisfaction to the husband, she was subjected to violence, including threats, illegal detention, marital rape, and other violent acts. The husband's various behaviors led to the wife being in a state of extreme collapse, both physically and mentally, and there was no room for reconciliation in their marital feelings. In July 2020, the husband was detained on criminal charges of fraud and was arrested in August of the same year, later being sentenced to three years of imprisonment.

In 2022, the female party sought the help of Tang Yunhong, a lawyer from the Dao Hua Family Law Firm, to find a solution.

Secondly, the lawyer at Dao Hua Law Firm comprehensively analyzes the case, combines the claims of the female party, and summarizes the focal points of the dispute.

1、This case involves the male party being sentenced to three years of imprisonment, domestic violence, separation, etc., does it meet the legal conditions for divorce?

Both parties had frequent and intense arguments before January 2020, with the male party repeatedly committing domestic violence against the female party and marital rape. In 2020, they had an irreconcilable conflict over the issue of whether to have a child, and the female party started living separately from the male party after undergoing an abortion. The male party was also sentenced to three years of imprisonment for fraud, severely damaging the couple's feelings.

Considering the above circumstances, according to Article 1079 of the "Civil Code (Marriage and Family Part)" and the "Interpretation (I) of the Supreme People's Court on the Application of the 'Civil Code of the People's Republic of China' Marriage and Family Part," it is possible to actively strive for the recognition of the case as having a statutory ground for divorce.

2、The child born through marriage is still young, and the parents of the male party refuse to visit. How can the female party fight for custody rights?

The child born out of wedlock is now 4 years old, has lived with both parties for a long time, and has been living with the mother since the father was detained. After the summer vacation, when the father's parents took the child back to their hometown, the mother went to pick up the child, but both of the father's parents refused and did not allow the mother to visit.

According to Article 1084 of the Civil Code (Marriage and Family Part), in this case, the legitimate child is over two years old but under eight years old. The court should comprehensively consider both parties' situations (such as living environment, income, etc.) when deciding custody, and make a judgment in accordance with the principle that is most favorable to the minor child. In this case, the woman has a higher income and spends more time with the child, and has advantages in terms of living standards, income, growth environment, and understanding of the child's living habits. The man is currently in custody and is unable to care for the child. Considering all these factors, it is appropriate to award custody of the legitimate child to the woman.

3、The male party purchased the house before marriage, and both parties jointly repaid the loan after marriage. How should the female party claim her rights to the property?

Before marriage, the male party purchased a commercial residential property in Luohu, Shenzhen, valued at 5 million yuan. After marriage, they jointly repaid the loan. For the appreciation part and the joint repayment part, how should the female party claim them? According to the relevant provisions of our "Civil Code", unless there is a separate agreement between the two parties, the pre-marital purchase of a house, the joint repayment of the loan after marriage, the appreciation part after marriage and the joint repayment part shall be considered as the joint property of the couple, and should be divided during divorce.

Three, "Mediation as the main method, litigation as the auxiliary," combining warmth and law, skillfully resolving the contradictions between both parties, quickly obtaining a divorce and custody of the child.

1、With ten years of experience in handling family and marriage cases, Attorney Dao Hua meticulously customizes a "mediation as the main approach, litigation as a supplementary approach" plan.

There are currently only two ways to divorce in our country: one is by mutual consent, and the other is by litigation. When an agreement cannot be reached, and mutual consent divorce is not possible, one must file a lawsuit with the court to divorce through litigation. In this case, the other party does not agree to a mutual consent divorce, and the only option is to file for divorce. If one wants to divorce quickly, mediation during the litigation process is the best solution. Therefore, Dahuawu Lawyer, based on the case, formulated a mediation plan. Starting from the emotional foundation of both parties, the perspective of the parents, the healthy growth of the child, and the perspective of the man's pre-marital property, the entry point was found, and active communication was conducted with the man's agent lawyer, parents, and even the judge, acting as a mediator.

2、The child is young, the standards for litigation divorce are high, and the Dao Hua legal team has decided to file a lawsuit while simultaneously mediating to complete the mediation divorce.

Faced with the current difficult situation of obtaining a divorce through litigation, ninety-nine percent of the first-time divorce lawsuits will not result in a divorce judgment. The Dao Hua Law Firm anticipated this risk in advance and formulated solutions. According to Article 1079, Paragraphs 3 and 5 of the "Civil Code (Marriage and Family Part)", "After the People's Court has ruled that the divorce is not allowed, if both parties have been separated for one year and one party again files a divorce lawsuit, the divorce should be granted." The woman can use the first lawsuit as a fallback for mediation. If the other party still does not agree to a mediated divorce, the woman can still take the approach of filing a second lawsuit for divorce. The Dao Hua Marriage and Family Law Firm immediately started mediation work after quickly completing the first lawsuit.

From both moral and legal perspectives, communicate with the parents of the male party, persuade them to agree to the divorce, and tell the male party that persevering in a broken marriage is harmful to both individuals and three families. At the same time, inform the male party of the chances of winning in the divorce lawsuit, and that if they reach the stage of litigation divorce, they may become strangers forever. In the future, seeing the child will not be as easy as in mediation divorce, and the female party can even demand compensation from the male party for the appreciation of the pre-marital property and the joint repayment of the mortgage.

Through the comprehensive mediation efforts of Dao Hua lawyer, the male party ultimately agreed to divorce, with custody of the child awarded to the female party, and successfully secured a monthly child support of 3,000 yuan.

Chapter 4: Daohua Lawyer's Experience in Handling Cases

Tang Yunhong, a lawyer, believes that the biggest difference between marriage and family matters and most other legal matters is that the core of most marriage and family disputes is emotional conflict. It is too cold to solve these disputes through litigation in a "one-size-fits-all" manner. However, without legal means, it is also not possible to adequately protect one's legitimate rights and personality. Therefore, the Daohua Marriage and Family Law Firm has always adhered to the philosophy of "mediation first, litigation as a supplement," holding both legal weapons and humanistic care, providing the most suitable solutions for the parties involved, and seeking to maximize the parties' interests.

In this case, the lawyer of Dao Hua adopted litigation and mediation methods to smoothly resolve the difficulties of the parties involved, and at the same time suggested:

1. When facing the other party's refusal to divorce, it is advisable to resolutely adopt the litigation plan to file for divorce, where mediation can be conducted at any time during the lawsuit. Utilize flexible and varied methods to achieve the desired results of the parties through multiple channels.

2. When facing disputes over child custody, it is easy to resort to extreme behavior, with many parents resorting to violent seizure of children and refusing visitation. Attorney Dao Hua advises that at this time, one should report to the police and make relevant records, which will serve as favorable evidence during the subsequent court proceedings.

3. If there is a legal need related to marriage, it is essential to find a law firm specializing in marriage and family matters to avoid major losses due to improper handling by non-professionals. The Daohua Marriage and Family Law Firm has always believed in the motto "We handle not just cases, but also people's lives," and works diligently and responsibly, handling cases professionally and efficiently, not disappointing any client's trust. The firm has been specializing in marriage and family disputes for 10 years, relying on its professional approach, rich practical experience in litigation and mediation, a diligent and responsible work attitude, and a method that combines warmth with legal principles, successfully helping numerous individuals who had been unable to divorce for many years to obtain a divorce smoothly and maximize their property interests, fully meeting the clients' demands and gaining unanimous recognition from them.

V. Relevant laws and regulations involved in the case

Article 1079 of the Civil Code (Marriage and Family Part): If one party of a marriage requests a divorce, mediation can be conducted by relevant organizations or the divorce lawsuit can be directly filed with the People's Court. The People's Court shall mediate in divorce cases; if the marriage has indeed broken down and mediation is ineffective, the divorce should be granted. In any of the following circumstances, if mediation is ineffective, the divorce should be granted: (1) bigamy or cohabitation with another person; (2) the implementation of domestic violence or abuse, abandonment of family members; (3) having gambling, drug abuse, and other bad habits that are not corrected despite repeated education; (4) separation due to disharmony for two years; (5) other circumstances that lead to the breakdown of the marriage. If one party is declared missing and the other party files for divorce, the divorce should be granted. If, after the People's Court has ruled that the divorce should not be granted, the parties separate again for one year and one party files for divorce again, the divorce should be granted.

Article 1084 of the Civil Code (Marriage and Family Part): The relationship between parents and children shall not be terminated due to the divorce of the parents. After divorce, the children, whether directly cared for by the father or mother, remain the children of both parents. After divorce, the parents still have the rights and obligations of custody, education, and protection of the children. After divorce, children under two years of age shall, as a principle, be directly cared for by the mother. For children who are two years of age or older, if the parents fail to reach an agreement on custody, the People's Court shall make a judgment based on the specific circumstances of both parties, in accordance with the principle of what is most beneficial to the minor children. For children who are eight years of age or older, their true wishes shall be respected.

Article 1085 of the Civil Code (Marriage and Family Part): After divorce, if a child is directly cared for by one party, the other party shall bear part or all of the child support. The amount of the support and the duration shall be agreed upon by both parties; if they cannot reach an agreement, the People's Court shall decide. The agreement or judgment specified in the preceding paragraph shall not prevent the child from making a reasonable request for an amount exceeding the original agreed or judged amount when necessary.

Article 23 of the Interpretation (I) of the Supreme People's Court on the Application of the Marriage and Family Article of the Civil Code of the People's Republic of China: If a husband claims for compensation for the infringement of his right to reproduce due to his wife's unilateral termination of pregnancy, the people's court shall not support it; if the couple has a dispute over whether to have a child, leading to the breakdown of their feelings, and one party requests a divorce, the people's court, after mediation fails, shall handle it in accordance with Article 1079, Paragraph 3, Item 5 of the Civil Code.

Article 46 of the "Interpretation (I) on the Application of the Marriage and Family Article of the Civil Code of the People's Republic of China" stipulates that for minors over two years old whose parents both wish to have direct custody, priority may be given to the parent who meets one of the following conditions: (1) has undergone sterilization surgery or lost the ability to reproduce for other reasons; (2) the child has lived with them for a longer period of time, and changing the living environment would be obviously detrimental to the child's healthy growth; (3) has no other children, while the other parent has other children; (4) living with them is beneficial to the child's growth, while the other parent has a chronic, incurable infectious disease or other serious illness, or has other circumstances that arenot favorable to the physical and mental health of the child, and it is not suitable for them to live together with the child.

Article 47 of the Interpretation (I) of the Supreme People's Court on the Application of the Marriage and Family Article of the Civil Code of the People's Republic of China: If the conditions for the parents to rear their children are basically the same, and both parties require direct custody of the children, but the children have lived separately with their grandparents or great-grandparents for many years, and the grandparents or great-grandparents require and are able to help care for their grandchildren or great-grandchildren, this can be considered as a priority condition for the father or mother to directly rear the children.

Article 49 of the Interpretation (I) of the Supreme People's Court on the Application of the Marriage and Family Article of the Civil Code of the People's Republic of China provides that 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 standard of living. For those with a fixed income, child support is generally paid at a percentage of 20% to 30% of their monthly total income. For those supporting two or more children, the proportion may be appropriately increased, but generally should not exceed 50% of the monthly total income. For those without a fixed income, the amount of child support may be determined based on the total income of the year or the average income in the same industry, and referred to the aforementioned proportion. In special circumstances, the aforementioned proportion may be appropriately increased or decreased.

Six, Team Introduction

Dao Hua Marriage and Family Law Firm, ten years focused on major property marriage and family legal services, expert in marriage inheritance and family disputes (mediation / litigation), practical expert, is [translation incomplete]Shenzhen native]- One of the influential brands in marriage inheritance and wealth management legal services. The team has handled over 1000 cases related to marriage inheritance, and has extensive mediation and litigation experience in controversial areas such as complex marriage and family disputes, inheritance disputes, will drafting, and family property distribution. Utilizing local wisdom, the team is skilled in dealing with difficult divorce property division cases involving Shenzhen's small property rights houses, village committee shares, and other issues, as well as will drafting and notarization, inheritance disputes, winning unanimous praise from clients.

Adhering to the philosophy of "securing property safety, preventing legal risks, and empowering wealth appreciation," we gather experts from industries such as law, banking, insurance, and finance and taxation. With a wealth of successful cases, we provide a comprehensive package of solutions for high-net-worth individuals (including those from Hong Kong, Macau, and foreign nationals) for marriage, family affairs, and wealth inheritance, aiming to achieve risk prevention and control, debt isolation, and the beautiful vision of family wealth inheritance. Asset types cover: real estate (residential housing, small property rights housing, land use rights, etc.), various property rights and interests (equity, debt, relocation compensation, copyright, invention patents, etc.). The team has completed the compilation of "Daohua Successful Cases of Marriage and Inheritance" and "Legal Practice of Family Wealth Inheritance," and both legal practice and theoretical research have achieved remarkable results.