1. The Client's Crisis

The client was living with their spouse and two children. When the spouse moved to another region for the children’s education, the client was left behind and continued working alone to support the family’s living expenses.

Then it was revealed that the spouse was having an affair with another man in the place to which they had moved. The client was deeply shocked, but hesitated to divorce for the sake of the children. In the end, however, the situation reached a point of no return, and the parties proceeded with an agreed divorce. The client also filed a lawsuit for damages against the man involved in the affair and won a judgment of KRW 20 million.

What should have ended with the divorce started again. After the divorce, the spouse filed a petition for property division. The total net marital assets were about KRW 1.35 billion. The trial court recognized the spouse’s contribution at 40%. Even though the breakdown of the marriage was caused by the spouse, the conclusion that the client had to transfer property worth about KRW 540 million was difficult to accept.

2. Core Issues

The issues that had to be contested in this case were as follows.

First, the question was whether an agreement regarding property division had already been concluded at the time of the agreed divorce. The client’s position was that, during the divorce process, the parties had finished agreeing that only the jeonse deposit of KRW 350 million would be given to the spouse. Text message records and the process of adjusting child support were the basis for this claim. If this agreement were recognized, the spouse’s petition itself would be procedurally improper.

Next, the key issue was the ratio of property division. It had to be argued whether the 40% ratio recognized for the spouse in the first instance was excessive in light of the circumstances leading to the breakdown of the marriage. Because the spouse not only had an affair but also provided financial support to the man involved in the affair, the client’s position was that these circumstances should be reflected in the contribution ratio.

3. Strategy

Attorney Yoon Ji-sang, the firm’s managing partner, contested two issues at the appellate stage.

One was the argument that the property division agreement had already been concluded. Looking at the text message records before and after the divorce, the matter had been settled on the basis that only the KRW 350 million jeonse deposit would be given to the spouse and child support would be adjusted to KRW 1.2 million per month. The client also set up the child support transfers accordingly. Although no separate written agreement was drafted, the argument was that, in substance, an agreement had effectively been reached. If this were accepted, the spouse’s petition would be dismissed.

The other was to contest the ratio itself. The first-instance 40:60 split was said to be excessive. The cause of the breakdown was the spouse’s affair. While the client worked alone to support the family, the spouse maintained a relationship with another man and, furthermore, provided financial support to the affair partner. The client had also won KRW 20 million in the lawsuit against the paramour. If these circumstances were not reflected in the contribution ratio, the same share of property would be awarded whether a party had committed adultery or not. That is not fair.

If the agreement were effectively recognized, there would be no need to divide the property at all. However, because the court might not recognize the agreement, a full backup argument on the ratio was also prepared.

4. Result

The appellate court did not accept the first line of defense. On the grounds that no specific written agreement had been prepared and that property division had not been paid for a considerable period after the divorce, the court held that a definitive agreement could not be said to have been formed.

However, the client succeeded on the second line of defense. Taking into account the circumstances of the breakdown of the marriage, the spouse’s wrongful conduct, and the financial support provided to the affair partner, the court reduced the spouse’s contribution from 40% in the first instance to 35%. The client’s share rose from 60% to 65%.

In a case involving net assets of about KRW 1.35 billion, a 5 percentage-point difference amounts to roughly KRW 67 million. In the end, the court decided that the spouse would be assigned the KRW 350 million right to claim return of the deposit, and would additionally receive KRW 118 million in cash.

In property division, even a difference of just a few percentage points can change the amount by tens of millions of won. If the breakdown of the marriage was caused by the other party, it is the lawyer’s role to ensure that circumstance is accurately reflected in the property division ratio. This case shows that even if an unfavorable ratio is issued in the first instance, it can be corrected on appeal.

If you are wondering how to respond in a similar situation, the outcome may differ depending on the specific facts of the case, so we recommend consulting a professional.

Attorney in Charge: Yoon Ji-sang, Managing Partner

For confidentiality, this case has been partially de-identified to the extent that it does not compromise the essence of the matter.