Pre-divorce provisional disposition barring disposal of property

Need for provisional disposition before divorce

When a couple divorces, a claim for division of marital property arises. The property subject to division is property jointly formed by the couple. Property acquired in the name of one spouse, in principle, is not subject to division as separate property.

However, even if the property is registered in the name of one spouse, if the other spouse contributed to the formation or maintenance of that property, division may be claimed.

Yet, the spouse who holds title to the property may dispose of it before divorce or during divorce litigation to avoid future division of marital property. In such a case, the lawsuit may be prolonged, and even if the spouse wins the case, enforcement may be impossible.

To prepare for such a situation, the spouse who is not the titleholder must prove that the property is subject to division and obtain a provisional measure to prevent the titled spouse from disposing of it.

Recently, a client who was about to undergo divorce asked Lawyer Joo Youngjae to apply for a provisional disposition prohibiting the disposal of real estate registered in the spouse's name, and we obtained a ruling granting it. I will introduce this case.

Facts

The client (creditor) had been married for about 33 years and entrusted all his earnings to his spouse (debtor). The spouse, who was a housewife, acquired the apartment in this case in her own name with the money earned by the client.

However, around January 2022, the spouse demanded a divorce and left home, losing contact for several months. Eventually giving up on persuading the spouse, the client sought help from Lawyer Joo Youngjae to at least receive a proper division of marital property.

Lawyer Joo Youngjae's assistance

Since the apartment in this case was in the spouse's name, Lawyer Joo Youngjae collected and submitted materials regarding the client's contribution to prove that the property was subject to division.

Specifically, Lawyer Joo Youngjae argued that the client had transferred a certain amount of income to the spouse every month and that the spouse had no income as a housewife. He also argued the necessity of preservation, including that the client would be left homeless if the spouse disposed of the property.

Court's decision

The court fully accepted Lawyer Joo Youngjae's arguments and granted the petition for provisional disposition prohibiting the disposal of real estate on the condition of entering into a payment guarantee entrustment contract instead of a cash deposit.