Five things you need to know before you hire a divorce lawyer in China
Cost of hiring a China divorce lawyer
According to < Measures on the Payment of Litigation Costs>, the court fee is only 50 RMB- 300 RMB, if the assets to be divided by the court are not more than 200,000 RMB and the charge rate for the properties above this figure is just 0.5%. The lawyer's cost is more complicated, for merely divorce consultation local lawyer may charge 1200RMB-2500RMB/hour. With respect to divorce representation: if the divorce case involves joint property, the Shanghai divorce lawyers may charge between 20,000 RMB- 80,000 RMB depending on the complexity of the case, if the case invoices joint property, divorce lawyers may charge based on percentage of the joint property value, between 2% - 5% instead of charging per billable hours.
There was a local guideline regarding attorney fee where lawyers always referred to which is Circular of the National Development and Reform Commission and the Ministry of Justice on Printing and Issuing the Measures for the Administration on Lawyers' Charging Activities, based on which we can find a formula as below:
If the joint property valued no more than RMB 100,000, the lawyer may charge between 8%-12% of the total value of the joint property. However, if the total attorney fee is calculated less RMB 3,000, the lawyer may charge the flat fee of RMB3,000;
If the joint property valued between RMB 100,00 and RMB 100,000 (with RMB 1,000,000 included), the lawyer may charge between 5% -7% of the total value of the joint property;
In the case where the joint property valued exceeds RMB 1,000,000 but no more than RMB 10,000,000 (RMB10,000,000 inclusive), the changing rate shall be between 3%-5% of the entire value of the joint property;
If the total value of the joint property worth between RMB10,000,000-RMB 100,000,000 (including RMB100,000,000), a rate of 1% to 3% of the property value may be charged.
If the joint property valued more than RMB100, 000,000, the lawyer may charge between the range of 0.5%-1% of the total value of the joint property.
The specific charging amount of a same case may vary firm by firm in China. Even lawyers from the same law firm may charge differently depending on their experiences and the complexity of the case.
Guidelines for keeping your divorce cost low
Resolving your issues outside court can help you to reduce your cost of Chinese divorce lawyer. Because in addition to Chinese lawyer’s fee, there are other costs associated with the case such as filling fees, experts’ fees and cost of stenographers. So, it is in your favor to resolve all your issues outside court to reduce the cost of divorce.
Choose your divorce attorney wisely, sometimes people think they should hire an expensive and combative attorney to affect their spouse. But this causes harm for both in form of financial punishment, this can cause increase in attorney’s fees. Courts in China does not punish s man/woman financially for being a bad spouse unless for certain cases such as bigamy, domestic violence, cohabitation with a third party during the marriage, desertion and abuse of family member, it is not necessary to harm yourself for proving your spouse bad unless you have evidence to prove the case above.
Go for an divorce attorney who has good experience, there are many Chinese lawyers who are dealing with divorce cases. So, hiring a Chinese lawyer who has handled lot of divorce cases will help you to complete the case in less time and in lower cost.
Certain things are not necessary to discuss with your Chinese lawyer, this can be illustrated through an example. Let’s assume you have got a furniture set at home which costs $300, discussing the possession of this set with your Chinese lawyer cost $500. So, it is good for you to buy a new set of furniture instead of discussing it with your attorney.
Divorce by agreement
It is possible to divorce by mutual consent of both parties. In a negotiated divorce, the parties are free to discuss child and spousal support payments, visitation rights, and joint marital property division (i.e.: land, furniture, money, investment, etc.) without any intervention from a Chinese judge.
If the marriage originally took place in China and one partner is a Chinese citizen, it is often possible to have an "easy" divorce procedure. The Chinese courts are not being used in this case. Therefore, divorce is registered with a local Chinese Marriage Registration Office (which is a department within the local Civil Affairs Bureau) and a certificate of divorce issued (rather than a formal divorce judgment provided by the court). Following completion of the necessary legal formalities, the divorce will be registered, and the marriage will be formally dissolved. This method can typically be done relatively quick as the couple can come to an agreement on how to resolve their affairs, but it can only be used in some very specific cases (and expat couples can't use it at all).
How does "Divorce by Agreement" work in Expat Divorce?
Applying for divorce while still on friendly terms is quite popular for expat couples living in China. Yes, those people who are lucky enough to be able to hammer out all the divorce's fine points and put them in writing usually end up saving a lot of time and effort. In these cases, divorce is not considered "controversial," but the Chinese courts may be used for finalizing the divorce to international couples.
The legal procedure used is called a "confirmation of divorce settlement" (essentially, due to the couple deciding to divorce, a more convenient, simpler legal procedure is applied). While still legally known as litigation, in reality all that occurs is that the court accepts a written agreement drawn up together by the partners and verbally acknowledges different details relating to the parties ' relationship and state of mind. The court must give a "judicial arbitration report" at the end of the process, which is a kind of decision. The court will issue a "civil mediation statement" at the end of the process, which is a kind of judgment. A formal legal document may be served as evidence of divorce.
Divorce by litigation
Where only one partner wishes to dissolve the marriage, divorce must take place through the courts. The court will decide how to address all outstanding issues, including child support, visitation rights, property division, and support payments, if there is no prior agreement. An interesting feature of litigated divorces in China is the court's insistence on trying to secure a negotiated divorce. In particular, the judge will ask the partners at multiple points throughout the process whether a settlement seems to be a reasonable possibility and, if so, whether they want to turn to court-approved mediation to try and resolve their differences. Obviously, if the dispute is especially acrimonious, or if it fails to reach a settlement, the court may take over the case again and make a final judgment.
Chinese courts can grant a contested divorce if at least one of the following conditions can be satisfied:
— where there are circumstances causing the separation of mutual affection (so-called "loss of affection");
- where the spouses have lived separately for more than two (2) years due to incompatibility;
- Where a partner engaged in bigamy or resided with a third party
- Where a partner has committed domestic violence or otherwise mistreated his/her partner.
- Where a partner has a gambling or drug addiction for a long time.
A litigated divorce, as in every country, is considerably more complex than a negotiated divorce. It will take longer and cost more than a voluntary divorce to deal. In fact, no matter how bleak the disagreements may seem, trying to end the relationship through a negotiated divorce settlement is almost always a good idea. Your Chinese divorce attorney will help guide you through this process, of course.
How long does it take to get divorce in Chinese court?
Cases might be different, but a divorce between two foreign citizens without controversies can be finalized in one or two months in the hands of an experienced Chinese divorce and family law lawyer, assuming both parties may decide on any pending separation-related issues.
Most Chinese divorce lawyers may be able to confirm the divorce directly after the court hearing, avoiding weeks of waiting for the verdict to be released.
If, however, divorce cannot be granted in the first time of litigation, the plaintiff must wait for six months to file the divorce case for the second time, this six-month period is kind of cooling off period imposed by law. If the plaintiff files divorce the second time, it’s likely that the court may grant divorce in the second litigation.
Note this essay is created by divorce lawyer