Division of Marital Property Lawsuit

The right to claim division of property is a claim to liquidate the joint property formed during the marriage, and it is provided for in Article 839-2 of the Civil Act.

This goes beyond a simple division of property and is a fair settlement procedure that reflects the mutual cooperation and contribution of both parties during married life.

In other words, whether by uncontested divorce or judicial divorce, a party may separately claim division of property, and if no agreement is reached between the spouses, the proportion of division is determined by the court's decision.

In a division of marital property lawsuit, the property subject to division is, as a rule, property accumulated through the joint cooperation of the spouses during the marriage, namely joint property whose ownership between the two spouses is unclear.

This includes real estate, deposits, stocks, loaned money, and the like. Even if title is held in the name of one spouse or a third party (including under a title trust), all such property is subject to division if it was substantively formed by the spouses together.

In addition, “the cooperation of the spouses” includes childcare and household labor.

That is, the indirect contribution of a full-time homemaker is duly recognized and reflected in the division.

Separate property refers to property that each spouse already owned before the marriage, or property acquired during the marriage through inheritance, gift, or bequest (Article 830(1) of the Civil Act).

Such separate property cannot, as a rule, be subject to division of marital property.

However, where the other spouse substantively contributed to the maintenance or increase of such separate property, that contribution or the increased value may become subject to division.

Supreme Court Decision of May 13, 1994, 93Meu1020

Severance pay, pensions, and the like received at the time of divorce are subject to division of marital property.

In addition, severance pay or a pension that one spouse has not yet received because they are still employed at the time of divorce may also, under certain conditions, become subject to division of marital property.

Supreme Court En Banc Decision of July 16, 2014, 2013Meu2250

That is, even if it is to be received in the future, it may be included as subject to division of marital property where its economic value can be realistically assessed.

Debt incurred by the spouses during the marriage may also become subject to division of marital property if it was debt arising from the spouses' joint formation of property or debt relating to daily household affairs.

In this case, a spouse who has lived bearing the debt may also duly claim division of the debt and the property, and an adjustment may be made against the positive assets in proportion to the degree of the negative assets (debt) borne.

Although not property itself, an ability or qualification expected to yield high income in the future may affect the division.

For example, this applies where one spouse obtained a professional qualification (such as attorney, doctor, accountant, or professor) through the sacrifice of the other spouse during the marriage.

This is not directly subject to division of marital property, but it operates as an important factor in assessing the degree of contribution or the division ratio.

The right to claim division of property must be exercised within 2 years from the date the divorce takes effect, and it is extinguished after that period (Article 839-2(3) of the ‘Civil Act’).

Commencement Date of the Statute of Limitations by Type of Divorce

The right to claim division of property is a right to an equitable liquidation of the joint property formed during the marriage, and it is recognized independently of responsibility for the divorce.

In particular, the court takes the view that the following persons may also exercise the right to claim division of property.

A person seeking division of marital property must submit a petition for adjudication of division of marital property to the family court.

In this case, the family court with jurisdiction over the respondent's address serves as the court of jurisdiction.

The petition must state the following.

The court makes its determination by comprehensively considering both parties' asset status, contributions, debts, and other circumstances.

If necessary in this process, the following procedures may additionally be carried out in parallel.

The court determines the standards, method, amount, and the like of the division of marital property.

If there is an objection to the decision, an immediate appeal must be pursued.

This is because, as the adjudication of division of marital property is an “adjudication” procedure, an “immediate appeal,” rather than an ordinary appeal, is the rule(Article 43 of the Family Litigation Act).

The asset disclosure system is a procedure by which the family court orders a party to submit, within a set period, an asset list specifying all of that party's assets.

How to File

The party prepares an asset disclosure application and submits it to the family court.

Assets to Be Listed in the Asset List

If it is found that division cannot be made on the basis of the asset list submitted under the asset disclosure procedure alone, the court may, upon a party's application or on its own authority, inquire about assets held in the other party's name from financial institutions, public institutions, and the like.

How to File

The applicant must submit an application stating the following matters, and must pay in advance the costs needed for the asset inquiry in the amount set by the court.

Division of marital property is the fair division of property formed jointly by the spouses, and because it is not regarded as a gratuitous transfer or a unilateral gift, it does not constitute a gift under the Inheritance Tax and Gift Tax Act.

In addition, property received through division does not fall under the income items in Article 4 of the Income Tax Act, so income tax is likewise not assessed.

However, where ownership of real estate is transferred through division of marital property upon divorce, the following taxes are assessed under the Local Tax Act and the Act on Special Rural Development Tax.

The Supreme Court has held that, where ownership of real estate is transferred through division of marital property, even if each spouse mutually transfers to the other the real estate that had been held in each spouse's own name, this cannot be regarded as a transfer for consideration.

Accordingly, capital gains tax is not assessed on the spouse granting the division either.

The firm includes many attorneys with an average of more than 10 years of experience, and it responds to each case by forming a task force of 1 to 20 members according to the scale and difficulty of the matter.

Drawing on the experience gained from handling a wide range of divorce and division-of-property cases, the firm develops a response strategy tailored to each client.

In addition, through collaboration with evidence investigation professionals, accountants, and tax accountants, the firm can provide comprehensive support, including the development of tax strategies and assistance at the evidence-gathering stage.

If you need assistance with the division of property, you may wish to seek the support of a divorce litigation attorney at Daeryun, the ninth-largest law firm in Korea (based on National Tax Service value-added tax filings for 2025).