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离婚官司怎么打

发布时间:2019-01-18 16:03
婚姻自由包括结婚自由和离婚自由,随着社会的发展,人们意识的转变,离婚已不再遮遮掩掩。当夫妻感情出现纠纷,当婚姻不能继续,当共同生活无法维系时,离婚便成了选择。在离婚过程中,怎样更好的保护怎么的合法权益呢?在我国,夫妻离婚有两种方式,一是,二是诉讼离婚。协议离婚是指夫妻双方都自愿离婚,并对子女抚养和已协商确定,做出适当处理,双方到民政部门申请离婚的方式离婚;诉讼离婚是指一方要求离婚,并依法向人民法院提起离婚诉讼要求法院裁判离婚。法院审理离婚案件,有下列情形之一,调解无效的,应准予离婚:1、重婚或有配偶者与他人同居的;2、实施家庭暴力或虐待、遗弃家庭成员的;3、有赌博、吸毒等恶习屡教不改的;4、因感情不和分居满二年的。
 
Marriage freedom includes marriage freedom and divorce freedom. With the development of society and the change of people's consciousness, divorce is no longer covered up. Divorce becomes an option when couples have disputes over their emotions, when marriage cannot continue and when common life cannot be maintained. In the process of divorce, how to better protect the legitimate rights and interests? In our country, there are two ways of divorce between husband and wife, one is litigation divorce. Agreement divorce refers to the way in which both husband and wife divorce voluntarily, and make appropriate treatment to their children's upbringing and confirmed through consultation, and both parties apply for divorce to the civil affairs department. Litigation divorce refers to the way in which one party requests divorce and brings a divorce lawsuit to the people's court to request the court to adjudicate divorce according to law. In handling divorce cases, the court shall grant divorce if mediation is invalid under one of the following circumstances: 1. bigamy or cohabitation of a spouse with others; 2. domestic violence or abuse or abandonment of family members; 3. persistent practice of gambling and drug abuse; 4. separation due to emotional discord for more than two years.
 
 
 
 
离婚诉讼过程中,夫妻双方争议的主要焦点主要是子女抚养、财产分割以及债务承担。
 
In the process of divorce proceedings, the main focus of disputes between husband and wife is child support, property division and debt bearing.
 
 
 
一、怎样争得孩子的?离婚诉讼中父母对子女的抚养权如何确定?
 
First, how to win children? How to determine parental custody in divorce proceedings?
 
 
 
未成年子女的抚养权是离婚夫妻首先要考虑的问题,那么如何确定抚养权呢?“根据我国《婚姻法》以及最高人民法院的相关司法解释,对于夫妻离婚如何确定子女抚养权,我个人归纳有以下几个原则:1、以“子女利益最佳”为基本原则,充分考虑离婚后夫妻双方经济收入、居住条件等具体情况,充分考虑生活环境的变化对子女的成长是否有利等因素;2、哺乳期内的子女,以随哺乳的母亲抚养为原则。法院审判实践中一般会判两周岁以下子女随母方生活,但母方有严重疾病或有抚养条件但不尽抚养义务等原因的除外;3、十周岁以上的未成年子女具备一定的辨别能力,其由谁抚养,要尊重子女自己的选择;4、在有利于保护子女利益的前提下,可以准许父母双方协议轮流抚养子女”。离婚诉讼中,如何确定孩子的抚养权,除适用几个原则外,还要多方收集证据,让法院有理由相信由你抚养对孩子成长更有利。
 
The custody right of minor children is the first consideration of divorced couples. So how to determine the custody right? According to the Marriage Law of our country and the relevant judicial interpretation of the Supreme People's Court, I personally sum up the following principles on how to determine the right to support children in divorce: 1. Taking "the best interests of children" as the basic principle, fully considering the economic income and living conditions of both spouses after divorce, and fully considering whether the change of living environment will affect the growth of children or not. Favourable factors and so on; 2. The principle of raising children during lactation is to raise them with their lactating mothers. In court practice, children under two years of age will generally be sentenced to live with their mothers, except for the reasons that the mothers have serious illnesses or conditions for rearing but do not fulfill their duty of rearing; 3. Minor children over ten years of age have certain ability to distinguish who to raise them and respect their own choices; 4. Both parents can be allowed under the premise of protecting their children's interests. The agreement takes turns to raise children. In divorce proceedings, in addition to applying several principles, how to determine the child's custody rights, we should also collect evidence in many ways, so that the court has reason to believe that your custody is more conducive to the growth of the child.
 
 
 
我国《婚姻法》规定:“父母与子女的关系不因父母离婚而消除,父母离婚后,子女无论由哪方抚养,仍然是父母双方的子女;离婚后,父母对子女仍有抚养和教育的权利和义务”。不管怎样,夫妻离婚,孩子是无辜的,尽量减少对孩子的伤害是父母的义务离婚夫妻要充分考虑子女的感受,要充分保护子女的利益,要多为子女的健康成长着想。
 
The Marriage Law of our country stipulates that "the relationship between parents and children is not eliminated by divorce of parents. After divorce of parents, the children are still the children of both parents regardless of which side they are raised by; after divorce, parents still have the right and obligation to support and educate their children". In any case, divorced couples have innocent children. It is parents'obligation to minimize the harm to children. Divorced couples should fully consider their children's feelings, fully protect their children's interests, and think more about their children's healthy growth.
 
 
 
二、离婚诉讼中夫妻财产的分割
 
2. Division of marital property in divorce proceedings
 
 
 
我国婚姻法规定:“离婚时,夫妻的共同财产由夫妻双方协议处理,协议不成时,由人民法院根据财产的具体情况按照顾子女和女方权益的原则判决”。 如何界定婚姻关系存续期间夫妻共同财产的范畴,在《婚姻法》以及《婚姻法解释一、二》中已有充分表述。现实生活中,分割比较困难,同时争议也最多的是大额财产比如房产归属和股权分配等问题。。
 
China's Marriage Law stipulates that "when divorce occurs, the common property of the husband and wife shall be handled by agreement between the husband and wife. If the agreement fails, the people's court shall decide on the basis of the specific circumstances of the property and the principle of taking into account the rights and interests of the children and the woman". How to define the category of common property of husband and wife during the period of marriage has been fully expressed in Marriage Law and Interpretation I and II of Marriage Law. In real life, segmentation is more difficult, while the most controversial issues are the ownership of large property and equity allocation.
 
 
 
对于夫妻一方婚前支付首付款,婚后夫妻共同还贷的按揭房产如何处理?“一方的为夫或妻一方的财产”,这是修改后的《婚姻法》明确规定的,结合法院的判例我个人认为,对于此类房产,首先应认定该房产属一方婚前财产,婚姻存续期间共同还贷的款项应当视为共同投资,此款项分割时应根据房价的市场变化予以均分”。
 
How to deal with the mortgage real estate that a spouse pays down before marriage and the spouse jointly repays the loan after marriage? "The property of one party is the property of the husband or wife", which is clearly stipulated in the revised Marriage Law. In the light of the court's jurisprudence, I personally believe that for such property, first of all, it should be recognized that the property belongs to one party's premarital property, and the amount of joint loan repayment during the marriage should be regarded as joint investment, which should be divided equally according to the market changes of housing prices."
 
 
 
夫妻一方是某一公司的股东,离婚时,一方要求分割另一方的股权怎么办?董律师说,对于共同财产中股权的分割问题,最高人民法院《婚姻法解释二》按照《公司法》等相关法律对此做出了部分原则性的规定。由于此类案件比较少见,鲜有判例可以参考,建议夫妻双方尽量以调解的方式解决此事。离婚时一方坚持要求分割股权的,应考虑公司其他股东、公司本身以及公司的相对人的利益,严格按照《公司法》等法律法规的规定进行。
 
When one spouse is a shareholder of a company, what happens when one spouse requests to split the other spouse's equity? Lawyer Dong said that the Supreme People's Court's Interpretation 2 of Marriage Law has made some principled provisions on the division of equity in common property in accordance with relevant laws such as Company Law. As such cases are relatively rare, there are few cases for reference. It is suggested that both spouses try their best to solve the problem through mediation. When divorcing, one party insists on dividing shares, it should consider the interests of other shareholders, the company itself and the company's counterparts, and strictly comply with the provisions of the Company Law and other laws and regulations.
 
 
 
三、离婚诉讼中的承担
 
3. Undertaking in Divorce Litigation
 
 
 
我国《婚姻法规定》:“离婚时,原为夫妻共同生活所负的债务,应当共同偿还。共同财产不足清偿的,或财产归各自所有的,由双方协议清偿;协议不成的,由人民法院判决”。。何谓“夫妻共同债务”,个人认为:认定婚姻关系存续期间的债务是个人债务还是共同债务,主要有两个标准:夫妻有无共同举债的合意以及夫妻是否分享了债务所带来的利益,夫妻共同债务一定是出于、源自、为了夫妻(家庭)共同生活。根据相关的司法解释,以下几个方面的债务应认定属于共同债务:1、因日常生活所负的债务;2、因
 
China's Marriage Law stipulates: "When divorce occurs, debts originally incurred by couples living together shall be repaid jointly. Where the common property is insufficient to be liquidated or the property belongs to each other, it shall be liquidated by agreement between the two parties; if the agreement fails, it shall be decided by the people's court. What is "joint debt between husband and wife"? Personally, I think that there are two main criteria to determine whether the debt during the marriage is personal debt or joint debt: whether the husband and wife are willing to borrow together and whether the husband and wife share the benefits of debt. The joint debt between husband and wife must come from, originate from and live together for the husband and wife (family). According to the relevant judicial interpretation, the following aspects of debt should be recognized as joint debt: 1. debts due to daily life; 2. debts due to daily life;

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