[Chatting] There's nothing when you divorce.Ten years later, Dunny. Real estate.It's hard to divide property.

□ Broadcast date and time: January 21, 2025 (Tue)
□ Host: Attorney Jo In-seop
□ Starter: Attorney Shin Jo-woon

* The text below may differ from the actual broadcast content, so please check the broadcast for more accurate information.
◆ Lawyer Cho In-seop (hereinafter referred to as Cho In-seop): Lawhouse for you, with lawyer Shin Ho-woon.

◇ Lawyer Shin Jong-un (hereinafter referred to as Shin Jong-un): Hello, I'm Shin Jong-un, a lawyer at Shinsegae Law Firm.

◆ Jo In-seop: Let's first see what kind of concerns you have if you come to the counseling center today.

■ Storyteller: I went on an MT in a rural area when I was in college. After drinking too much on the first day of MT, I went outside and got lost. I couldn't find my way, so I sat down and cried. Then a man approached me from the paddy field. Surprisingly, the man was driving two cows. When I told him the whole story, he said he knew where the MT accommodation was and took me in a cow. I couldn't forget this intense memory even when I came back to Seoul. Eventually, I went back there and met the man. I regularly went down to the countryside and met him. Then I became pregnant, and I eventually married him. But the marriage was completely different from what I expected. My husband was becoming an alcoholic because he often drank alcohol while working on a farm. It became coercive and violent when drunk without paying for living. When I was flirting, I had never seen it before. I said let's divorce because I don't think I can live like this. My husband said he would divorce, but he couldn't give me a penny. It didn't look like I had enough money to split my husband's property. For me, divorce came first, and property division came later. Ten years have passed since the divorce. I recently found out that there was a property under my ex-husband's name that I didn't know. If I had known that then, I wouldn't have just come out naked. Is it possible to claim property division even now?


◆ Cho In-seop: It was about the division of the property of lawyer Cho In-seop's counseling center. You didn't realize your ex had a property until your divorce, and you must have been surprised.

◇ Shin-Ko-woon: Yes, I think you must have been really surprised. Even if it's a marital relationship, there are many cases where you don't know the other person's property status.

◆ Cho In-seop: Ten years have passed since the consultation divorce, can I claim the division of property?

◇ Reporting luck: The period of exclusion is when the law sets the duration of a certain right in advance. It's a different legal concept from the extinctive prescription. Article 839-2 (3) of the Korean Civil Code stipulates that the exclusion period of the right to claim property division is two years, saying, "The right to claim property division shall lapse when two years have passed since the date of divorce." So when exactly does "divorce day" mean? In the case of a consensual divorce, it's the date of the divorce report. In the case of trial divorce, it may be confusing, but you can count two years from this time on the date the judgment is confirmed two weeks after the original copy of the divorce decision is received. In the case of the case, unfortunately, 10 years have passed since the date of filing the divorce after consultation divorce, so it seems difficult to recognize the right to claim the division of property.

◆ Jo In-seop: Is it difficult to claim property division even if the property you didn't know at the time of divorce is found later?

◇ Report cloud: Our precedent states, "The right to claim the division of property shall lapse two years after the date of divorce by consultation or trial. If a claim is made for the division of property only for a part of the property within the two-year exclusion period, the exclusion period cannot be regarded as being observed for the rest of the property that is not the object of the claim, so after the exclusion period, the right to claim expires for property that has not been the object of the claim until then." He said, "If a property that has not been dealt with at all whether it is subject to division in the trial is found after the trial is confirmed, an additional property division may be requested separately, but such a claim must also comply with the exclusion period of less than two years from the date of divorce." Therefore, in any case, you must file a claim for property division within two years from the date of divorce to receive relief from your rights. Please keep that in mind.

◆ Cho In-seop: Even though we haven't specified the target of the division of property, can it be considered that the exclusion period has passed?

◇ Report cloud: There is a legal term for release period. It refers to the period in which a lawsuit can be filed, and it refers to the period in which the right is extinguished if the lawsuit is not filed within the above period. Our precedent judged the right to claim the division of property as the period of release, saying, "The case of property division is a domestic lawsuit, unlike the case of civil lawsuits, and it does not rely solely on the party's arguments, but is based on so-called ex officio detectionism. In the end, you can claim the property division within two years from the date of divorce and argue about the property. Not all property subject to division must be specifically specified within two years (see Supreme Court Decision 2023m11819 on December 21, 2023).

◆ Jo In-seop: At the time of the consultation divorce, I wrote a 'memorandum of abandonment of the claim for division of property', is it possible to file a claim for division of property later?

◇ Reporting luck: (Article 839-2 of the Civil Act) The main purpose of the property division system is to liquidate and distribute substantial common property achieved through cooperation between both couples during marriage. The right to claim the division of property due to divorce occurs only as a legal effect when the divorce is established. It is not permissible by nature to give up the right to claim property division that has not been specified before the marriage is resolved. Therefore, in principle, a memorandum of renunciation of property division prepared in advance in preparation for future divorce is ineffective. Of course, in the process of agreeing that the parties who are not yet divorced will later divorce, they may write a document about giving up their right to claim the division of property. However, if the negotiated divorce does not take place later and the parties argue about the division of property while the trial divorce, the previous memorandum becomes invalid. And even if the agreement is completed, the memorandum should contain information on the amount of property subject to division, the contribution of both parties, and the method of division of property, with the intention of liquidating and distributing all joint property of the couple, and it should be possible to confirm that one of the couples has given up the right to claim the division of property as a result of the property division consultation. And it can only be accepted as it is if the content is clear and there is no dispute. Therefore, even if you write a "memorandum of abandonment of property division" in case of consultation divorce, you can claim property division within two years from the date of divorce.

◆ Cho In-seop: At the time of the consultation divorce, there was no agreement on child support, and so far, we have not received child support. In this case, can the person in question receive past child support?

◇ Reporting luck: If one of the divorced couples raises a child, the one raising the child may claim the other party to share the appropriate amount of child support, except in special circumstances. Parents' obligation to raise their children occurs at the same time as the birth of their children unless there are special circumstances, so if it is deemed that the other party shares the child support in the past, they may also claim reimbursement of the expenses (refer to the Supreme Court's decision on the en banc decision on May 13, 1994). And our recent precedent determined that "in the case of requesting the other party to repay child support incurred in the past, due to the nature of the right to child support that must be realized for the welfare of the child, the extinctive prescription of the right does not proceed while the child is underage and continues, but proceeds when the child reaches adulthood and the child's obligation ends." After all, regardless of when the divorce was made, you can claim reimbursement of past child support at any time within 10 years of your children's coming of age.

◆ Jo In-seop: Now, to summarize what we've done so far... If 10 years have passed since the consultation divorce, the right to claim the division of property will be extinguished and it will be difficult to recognize. Even if property that you did not know at the time of divorce is found, the claim for division of property must be made within two years after divorce. Even if the target of property division is not specifically specified, it is recognized that the exclusion period of two years has been observed. Even if you wrote a memorandum of abandonment of the property division claim at the time of the consultation divorce, you can claim the property division within two years after the divorce. If there was no child support agreement at the time of the consultation divorce, you can claim past child support within 10 years from the date your child came of age. So far, I've been with Shin Se-woon, a lawyer who reported to Shinsegae Law Firm.

◇ Report luck: Thank you.