When you should get advice
- Our home and deposits are all in my spouse's name
- My parents helped pay for part of our home when we married
- My spouse runs a business, so I can't tell how much the assets are worth
- After divorce came up, my spouse put our home up for sale
- We have more loans than assets, and I want to know how they are divided
- I can't tell whether the division amount my spouse offered is fair
Relevant provisions
Civil Act (민법) Article 839-2 (Right to claim property division)
If no agreement is reached, the family court decides the amount and method of division, taking into account the amount of assets built through both parties' cooperation and other circumstances. The right to claim expires 2 years after the date of divorce. This also applies to judicial divorce (Article 843).
Civil Act Article 830 (Separate property and property of unclear ownership)
Property owned before the marriage and property acquired in one's own name during the marriage is that person's separate property, and property whose ownership is unclear is presumed to be jointly owned by the spouses.
Family Litigation Act (가사소송법) Articles 48-2, 48-3 and 67-3
In a property division case, the family court can order the other party to submit a list of assets, and if that is not enough, it can make inquiries about assets with financial institutions and others. Failing to submit the list without a valid reason, or submitting a false list, is subject to an administrative fine of up to KRW 10 million.
Civil Act Article 839-3 (Right to revoke fraudulent acts)
If a spouse disposes of assets knowing it will harm the right to claim property division, the other spouse can ask the family court to revoke the disposal and restore the assets. The lawsuit must be filed within 1 year of learning the grounds for revocation and within 5 years of the disposal (Article 406(2)).
Statutes are summarized. The official Korean text is available at the Korea Law Information Center (law.go.kr).
What is divided, by type of asset
Real estate, deposits and shares acquired during the marriage
- Subject to division?
- Included regardless of whose name they are in
- What to check
- When they were acquired and where the money came from
Jeonse and monthly rent deposits
- Subject to division?
- Included
- What to check
- How the deposit was raised and whether a loan was used
Severance pay and retirement pensions
- Subject to division?
- May be included
- What to check
- Not only amounts already received but also expected retirement benefits while still employed may be included
National Pension and civil service pensions
- Subject to division?
- Can be divided separately as a split pension
- What to check
- Each pension law's requirements, such as a marriage of 5 years or more
| Asset | Subject to division? | What to check |
|---|---|---|
| Real estate, deposits and shares acquired during the marriage | Included regardless of whose name they are in | When they were acquired and where the money came from |
| Jeonse and monthly rent deposits | Included | How the deposit was raised and whether a loan was used |
| Severance pay and retirement pensions | May be included | Not only amounts already received but also expected retirement benefits while still employed may be included |
| National Pension and civil service pensions | Can be divided separately as a split pension | Each pension law's requirements, such as a marriage of 5 years or more |
| Business interests and unlisted shares | May be included | Which method will be used to value them |
| Pre-marital assets, and inherited or gifted assets | Excluded in principle | May be included if the other spouse helped maintain or increase them |
| Loans taken for life together | Deducted as debts | Whether they were for living costs or housing, or for personal use |
Based on Civil Act Articles 830 and 839-2, National Pension Act Article 64 and Supreme Court case law. Whether individual assets are included, and the ratio, differ from case to case.
First, settle the reference date for division
In a judicial divorce, the assets to be divided and their values are in principle set as of the end of the final hearing on the facts, and if you claim after a divorce by agreement, the date the divorce took effect is the reference point. So if apartment prices rise or fall during the lawsuit, the division amount changes too.
If you have been separated for a long time, a dispute may arise over whether assets one spouse built up alone after the separation should be included in property division (재산분할). You need to organize the date the separation began and who paid the living costs after that to make your argument about the reference date.
Contribution doesn't belong only to the spouse who earned the money
There is no fixed formula for the division ratio. The court looks not only at income-earning activity but also at housework and childcare, efforts to manage the assets and repay loans, the length of the marriage, and both spouses' ages and occupations. In the end, the ratio is set when you show with material what you did to build and keep the assets.
If both of you worked, it is effective to show through account flows how each income was used for living costs and loan repayments. Even pre-marital assets or assets received from parents can be argued to be included in the division if you jointly repaid loans or managed them so their value was maintained.
Hidden or diverted assets are found through court procedures
Even if you do not know what assets are in your spouse's name, once a lawsuit begins you can apply for an asset disclosure order (재산명시) to have your spouse submit a list of assets, and if that is not enough, the court can make an asset inquiry (재산조회) with financial institutions and public agencies. Transaction records for specific accounts are checked through fact inquiries (사실조회) and an order to submit financial transaction information.
If you are already worried about assets being disposed of, apply for an injunction against disposal of real estate (처분금지가처분) or provisional attachment (가압류) of deposits and wages before or when filing. Once a disposal is complete, you have to file a lawsuit to revoke a fraudulent act (사해행위취소), and it is hard to undo if the buyer says they did not know the circumstances, so freezing the assets comes first.
- Asset disclosure order: the other spouse submits a list of their own assets
- Asset inquiry: the court searches financial institutions and public agencies for assets in the other spouse's name
- Provisional attachment: blocks the disposal of monetary claims such as deposits, wages and rental deposits, and of real estate
- Injunction against disposal: freezes a specific property so it cannot be transferred
- Revocation of a fraudulent act: cancels the disposal of assets already diverted and brings them back
You also need to decide how to divide
The method used most in practice is for one spouse to keep a specific asset, such as the home, and pay the other spouse a settlement amount. Assets can also be divided in kind as they are, or sold and the proceeds shared. The spouse who keeps a home with a loan on it must also settle who will repay the loan.
When real estate is transferred, the tax may differ depending on whether the ground for registration is property division or compensation for emotional distress (위자료). The tax office looks not only at the label but at the actual substance and at whether the transfer was made before or after the divorce report. Before finalizing the wording of the agreement and the timing of registration, we check together whether a tax review is needed.
How Jisan Law's Family Law Center prepares for property division
- 1
Mapping the assets
We gather the real estate, deposits, insurance, shares, severance pay, pensions and loans in both spouses' names in one table. Unknown assets are left blank and filled in through court procedures.
- 2
Tracing the flow of money
We organize through account flows when and with what money each asset was bought, building the basis for arguments about separate property and contribution.
- 3
Preservation measures
We pick out the assets at risk of disposal and apply first for provisional attachment or an injunction.
- 4
Applying for asset disclosure and inquiries
Assets the other spouse has not disclosed are checked through an asset disclosure order, asset inquiries and fact inquiries.
- 5
Presenting a division plan and mediation
We prepare a division plan reflecting market prices and loans as of the reference date, present it in mediation, and decide in advance the range you can accept.
- 6
Checking registration and payment
After the decision is final, we check that the ownership transfer registration and settlement payment have been made, and proceed with compulsory execution if payment is not made.
Lawyers handling these cases
Hansol Kim Managing Partner
Former prosecutor at the Incheon District Prosecutors' Office, the Ansan Branch of the Suwon District Prosecutors' Office and the Hongseong Branch of the Daejeon District Prosecutors' Office
View profile →
Miso Kim Partner
Formerly at Daehwan Law Firm, in-house counsel on the legal team of Wemade Co., Ltd., and Oracle Law Firm
View profile →
Frequently asked questions
My parents helped pay for our home when we married. Will that money be divided too?
It depends on to whom your parents gave the money, how long the marriage has lasted, and whether the two of you managed the home and repaid the loan together afterward. Support from one side's parents can be argued as that spouse's contribution, but if the marriage was long and the asset was maintained together, it is often included in the division. Find the transfer records and conversations from that time.
Is there property division even if our debts exceed our assets?
If the debts arose for the couple's life together, they are also considered in the division. Case law holds that even when debts exceed assets, the court may, depending on the circumstances, divide the burden of the debts. However, debts one spouse incurred for gambling or personal purposes are in principle borne by that spouse.
My spouse has already sold our home. Is there nothing I can do?
We start by tracing where the sale proceeds went. If the money is still there, we argue that it should be divided and provisionally attach the deposits. If the home was transferred to a family member or acquaintance to avoid property division, we consider a lawsuit to revoke a fraudulent act, which must be filed within 1 year of learning the grounds for revocation.
Can a spouse who had an affair also claim property division?
Yes. Property division is a procedure for settling assets built together, so it is judged separately from responsibility for the breakdown of the marriage. Responsibility for the breakdown is dealt with through compensation for emotional distress, so a claim for compensation against the spouse who had the affair is made separately from property division.