跨界联合,终止性别暴力

李国庆三姐合伙喷俞渝:恩怨背后,遍地是钱 | 橙律师
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李国庆三姐合伙喷俞渝:恩怨背后,遍地是钱 | 橙律师

11 十一月 2019 - 12:11

还记得李国庆和俞渝的大瓜吗?

曾经的夫妻档深夜互撕,互爆丑闻,“同性恋”、“洗浴中心”、“精神病”、“小三”等关键词让人浮想联翩。

而在最新进展里,李国庆的三个姐姐发表了给俞渝的公开信,警告她:

“如果你继续侮辱我们,我们也将抓破你的脸!”

在昨天的微博里,李国庆更是直称俞渝“心似蛇蝎”。

 

 

看来即使是名人、富豪,在面对婚姻、财产问题时依然是一地鸡毛。

李国庆俞渝事件,伞姐早已发过一篇文章,来提醒大家不要再踩俞渝踩过的坑。

之后,伞姐又特地请来了了广受读者好评的贾欣彦律师,直播分析这一案例,教给大家更具实操性的解决方案。

错过了直播追悔莫及?

没关系!伞姐已经把直播精华整理出来啦,快下划来一睹为快吧!

 

贾律师直播内容精华回顾

从10月23日开始,网络各大平台热搜榜首的当属李国庆和俞渝互撕事件。

这一出戏,可谓让吃瓜群众撑了肚子,但是掰开瓜皮,褪下两人互撕言论的外衣,剩下的就无非是“利益”这两个字。

所谓离婚,万变不离其宗,不管是怎样轰轰烈烈的互撕,还是怎样不留余地的跨越底线,最后的争议焦点无非就是孩子和票子。

显然,李国庆和俞渝离婚的障碍只剩下“票子”如何分的问题。

 

 

根据婚姻法的规定,如无证据证明个人财产的认定,北京当当科文电子商务有限公司股权应当是李国庆俞渝夫妻关系存续期的财产,应为夫妻共同财产。

离婚分割夫妻共同财产的,原则上平均分割,但同时要遵循照顾无过错方原则和保护妇女、儿童、老人合法权益原则。

《婚姻法》第四十六条:

有下列情形之一,导致离婚的,无过错方有权请求损害赔偿:

(一)重婚的;

(二)有配偶者与他人同居的;

(三)实施家庭暴力的;

(四)虐待、遗弃家庭成员的。

《婚姻法》第四十七条:

离婚时,一方隐藏、转移、变卖、毁损夫妻共同财产,或伪造债务企图侵占另一方财产的,分割夫妻共同财产时,对隐藏、转移、变卖、毁损夫妻共同财产或伪造债务的一方,可以少分或不分。

离婚后,另一方发现有上述行为的,可以向人民法院提起诉讼,请求再次分割夫妻共同财产。

可见,无论是俞渝指责李国庆“同性恋”、“拿走1.3个亿”,还是李国庆指责俞渝“给人当小三”、“拖延时间转移共同资产”,二人不约而同均在《婚姻法》的“有过错方”大做文章,两人离婚争议的焦点,旨在股权分割。

10月24日,当当创始人李国庆也发微博点明了互撕的症结:

 

为什么会有如此激烈的争夺呢?

归根结底,是二人开创的夫妻店作出对应商业化运作的规程,原本的创业优势是夫妻档,而后的运作败笔也是夫妻档。

俞渝和李国庆曾多次公开反思“夫妻店”的弊端。

俞渝说:“假如我有选择,绝不会和我的老公一起创业。”

李国庆也曾反思:“如果从头再来,肯定会反对夫妻创业,夫妻创业苦不堪言,首先是管理上很难说服对方,造成决策和执行效率低,还会对生活造成损伤。”

婚姻的目的,乃结两姓之好,在创业之初,由于其亲密性和信任度是无可取代的,会发挥超乎想象的优势,夫妻在一致对外时,无论是避开尔虞我诈还是对抗其他投资人,都是一把锋利的刃。

是刃就具有两面性,在夫妻店的盘子越做越大之后,弊端也必将成为其发展之路的拦路石。

仅仅是对公司企业的拦路阻碍也就罢了,大不了翻盘重新开始,可现实往往不止步于此,无法掌控的夫妻档,在发展的中后期,必然会加剧两股东身份之间的矛盾,这些矛盾又会积少成多变成婚姻路上的断崖,白首之路难再续。

那么,夫妻店到底能不能开?

律师认为,任何事情都不能百分百的做到零风险,夫妻店既然有优势有劣势,只要扬长避短,发扬优势而规制劣势,又未尝不是一条好途径。

一、在婚姻层面,夫妻(股东)订立婚前、婚内协议,把财产和感情分开打理,有制约也有空间,才能各得其所。

二、在公司层面,重视公司章程的设计,将夫妻股东可能遇到的情况作出预设,防患未然;完善股权结构和公司法人治理架构,将夫妻财产与公司财产分而治之,避免混同。

三、学会用法律做铠甲,擅于运用法律工具和家族信托等金融工具,将企业家们的婚姻风险隔离。

达摩克利斯之剑长悬,经营夫妻店得善于扬长避短、把控风险,婚姻也未尝不可。

 

读者提问与解答

直播结束后,贾律师又针对网友提问,耐心给出了解答。

快来看看下面有没有你关心的问题吧!

提问:老师刚才的课程中提到了夫妻店,我理解是婚前协议的问题,请问婚前协议必须公证才有效吗?

贾律师:首先解释一下夫妻店,夫妻店在我们通常的定义里面,更多的是夫妻两个人共同白手起家,或者是共同经营一个企业。您说的婚前协议呢,并不能等同于夫妻店。

对于婚前协议,您可以采取多种方式:公证,或者是律师做出的婚前协议见证,或者是您双方自行做婚前协议的约定,都是有法律效益的。只要您的这个协议的约定符合我们法律的规定即可。

 

提问:国内有婚前协议这种方式吗?如果有的话要通过什么途径等才可以生效保障呢?

贾律师:国内是有婚前协议的。近几年来,在北上广这样的大城市中,婚前协议的方式也已经被广泛采纳,大家的接受度也比较高。

那通过什么途径才可以生效呢?一般来说呢,只要双方协议约定是在法律规定的范围内,不违背公序良俗,那婚前协议的内容是可以由双方来来约定的。采取的方式上面有提到。

 

提问:夫妻双方隐藏的财产可以不算夫妻共同财产吗?

贾律师:隐藏的财产也算共同财产。凡是婚姻存续期间,双方任何一方获取的财产,均为夫妻共同财产。

 

提问:财产分割是谁提出谁举证,都不知道有没有怎么举证呢?

贾律师:财产分割的举证规则,是谁提出财产分配,谁就要负责举证。至于不知道有没有的情况,只能说建议大家做生活中的有心人了。

 

提问:俞渝李国庆的新闻里,俞渝说家暴报警,但没有发生肢体冲突,这种情况下该如何确认家暴?又该如何固定证据?

贾律师:并不是发生肢体冲突的才叫家暴,家暴有多种形式,除了我们最常见的肢体冲突以外,还有冷暴力、精神暴力、财产经济的封锁等。在这种情况下,如何认定家暴确实是实践中的一个难点,只能侧重于我们如何固定证据,比如说被经济封锁,在举证时,就可以拿生活当中被经济封锁的一个事例来证明。

在家暴发生之初,如果已经报过警,那么建议在警察那边留下报警记录,以后可以作为证据使用。

 

提问:那婚姻中的冷暴力如何举证呢?

贾律师:2016年出台的反家庭暴力法里,定义了婚姻中冷暴力这样一个概念。冷暴力可以说是实践当中最难举证的,因为它没有肢体碰撞,不能鉴定,也不能验伤,为此,我们更多地建议大家去寻求心理建设,考虑心理咨询师方面的一个辅助。

 

提问:离婚协议中一方放弃房产,房产为双方共同贷款购买,办房产证时背书一方99%,一方1%,是否已有法律效应?还是离婚协议需要经公证?

贾律师:如果产证上有了背书份额的约定,就已经产生了法律效力,那么在离婚的时候,就依产证备注的份额来分配财产。

 

离婚协议并不是必须要公证,但是在没有拿到离婚证的时候,离婚协议是不生效的。

提问:追问一下,以后卖房时,还需要向放弃方支付那1%吗?

 

贾律师:对方离婚的时候放弃了1%的份额,那获得房子的一方也就不用向其支付对价了。

提问:婚后建房,房产证上只有男方名字,实际出资人为女方,有银行流水各种证明,离婚时这样的财产一般如何分割?

 

贾律师:婚后建房,从大的方向来说这个房产是属于夫妻共同财产的。它的实际出资人虽然是女方,可产证上是男方的名字,也就是说在建房之初,男女双方已经对房产做了一个夫妻共同财产的约定。

理论上,如果没有其他特殊证据证明的话,它就按照共同财产的分配方式,考虑五五分的概率比较高。如果有其他的财产证据,那就需要具体案例具体分析。

 

提问:法律对于婚姻过错方的判定有什么样的认定条件?像不少案例里双方都有过错,如何判定?

贾律师:婚姻过错方的判定,是在一个案件中综合考虑导致双方感情破裂的过错程度的因素,可能达到一定的过错程度,比如说重婚这样的涉刑的罪名,那么当然属于个过错方;但是像我们平常说的精神出轨、肉体出轨之类,可能举证方面,并不能完全地将其定义为过错方。案例当中双方都有过错的,法院可能是各打50大板。我们定义过错就是为了财产分割。

在这里给大家纠正一个观念,我遇到不少的当事人都有这样的一个问题,就是:对方是我们婚姻的过错方,那他是否可以净身出户?那我可以明确地说,这个是不可以的。

 

提问:协议约定孩子由父亲扶养,母亲代扶养到18岁,孩子到18岁时不愿意去跟父亲生活,但是父亲又执意要求,那在法律上怎么解决?

贾律师:孩子满了18岁之后,已经是一个完全具有民事行为能力的成年人,他不需要再跟一方或者是不跟一方生活,父亲也无权指引要求。

 

提问:离婚财产分割中,如果双方不能达成财产分割的一致,抚养孩子的一方是否可以分割到更大比例的财产,而不是均分?

离婚协议已约定抚养费,如果后续产生新的财产纠纷,导致抚养孩子的一方向另一方支付一笔款项,抚养方可以申请增加抚养费吗?

贾律师:分割财产获取更多比例并不是以抚养孩子为前提条件的,这是两个法律问题,并不互相混淆和影响。

而至于抚养费是否可以增加的问题,这取决于所在地的生活水平是否提高,以及孩子正常生活的所需,和财产纠纷也是没有关系的。

 

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