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What circumstances can Ningbo increase child support fees

Ningbo Author：LuXu WANG

When they divorced ten years ago, they agreed to pay 800 yuan per month for child support. As children advance to higher grades, prices rise, and expenses for extracurricular education and healthcare increase, 800 yuan is now far from sufficient. Can the parent with primary custody seek an increase in child support? The answer is: yes. Child support may be increased if necessary, on the basis of article 1085 of the the People's Republic of China Civil Code-the original agreement or judgment does not prevent the child from making a reasonable request to either parent, if necessary, in excess of the original amount. Common situations include illness of the child, increase in actual needs due to further education, the original amount is not sufficient to maintain the actual local living standard, or major changes in the economic situation of the direct dependant. The increase in alimony is not "if you want to increase it," but must be supported by legitimate reasons and evidence.

The legal basis of 1. and the normative logic of "increasing alimony"

Article 1085 of the the People's Republic of China Civil Code stipulates that: after divorce, if the children are directly raised by one party, the other party shall bear part or all of the maintenance; the amount of the cost and the length of the period shall be agreed upon by both parties; if the agreement fails, the people's court shall make a judgment. The agreement or judgment prescribed in the preceding paragraph shall not preclude a child, when necessary, from making reasonable requests to either parent for an amount exceeding that originally stipulated in the agreement or judgment.

The phrase “when necessary… reasonable request” in this provision constitutes the legal basis for asserting a claim to increase child support. It contains two layers of restrictions: one is "necessary"-there must be a legitimate reason for the actual need to increase, not ready to re-open bargaining; the other is "reasonable"-the amount of the increase must still be determined within the framework of the actual needs of the child and the affordability of the parents. It is accompanied by Article 58 of the Interpretation (I) of the Supreme People's Court on the Application of the Marriage and Family Code of the the People's Republic of China Civil Code, which lists three situations in which the court should support an increase in alimony: (I) the original amount of alimony is insufficient to maintain the actual living standard of the place; (II) the actual needs have exceeded the original amount due to the illness of the woman and her schooling; (III) there are other legitimate reasons, it should be increased. The "whether it should be supported" is judged by whether it meets one or more of these three items.

2. the specific circumstances in which maintenance can be increased

To implement the circumstances outlined in Article 58 under "(I)", the following situations are commonly invoked in practice to justify an increase:

  1. The originally allocated amount is insufficient to maintain the local standard of living.: The amount determined by agreement or judgment is old (such as 800 yuan agreed ten years ago). According to the current price and the local living standard, it is obviously low and cannot cover the basic living expenses.
  2. Children are sick and incur large medical expenses: For major medical expenses arising from chronic illnesses, inpatient surgeries, and the like, where actual needs exceed the originally agreed amount, it is permissible to request an increase in contributions or separate allocation of costs.
  3. Children's expenditure on further education and education increases: when entering the Senior high school and university stage, the expenditure on tuition, accommodation and supplementary teaching materials increases; the necessary activity expenses organized by schools in the compulsory education stage can also be taken into consideration. However, please note the boundary of “necessity”—private school or elite‑style tutoring expenses that far exceed the local average, and which are incurred without the other party’s consent or are not reasonably necessary, will not be fully upheld by the court.
  4. Significant change in the economic situation of the direct dependant: The dependant is unemployed, sick and has a sharp decrease in income, which makes it difficult to bear the burden alone, while the other party has a higher income and can claim to increase it.
  5. The income of the payer has increased obviously: the income of the other party has increased significantly and has stronger affordability, so the standard can be raised appropriately according to the actual needs of the children.
  6. Other justifiable reasons: such as the natural rise of children's living expenses with the growth of age, family changes, etc., which are subject to the comprehensive discretion of the court in individual cases.

In contrast, it is usually difficult to obtain support in the following situations: the child is an adult and can live independently; the other party is required to share the high tuition fees of private schools or non-essential interest classes beyond the necessary and reasonable range; the direct supporter requires a substantial increase only because of "feeling that it is not enough to spend" without justifiable reasons; the other party is in financial difficulties and has no affordability. The request for an increase in maintenance is made in the name of the child, and the direct supporter acts as the legal representative on behalf of the legal representative.

How to determine the amount of 3.: calculation caliber and reference basis

The amount of alimony after the increase is still determined according to the caliber of Article 49 of the Interpretation (I): it is determined according to the actual needs of the children, the affordability of both parents and the actual living standard of the place; for those with fixed income, they can generally be paid according to the proportion of 20% to 30 of their monthly total income, and for those with more than two children, the proportion can be appropriately increased but generally not more than 50% of their monthly total income; if there is no fixed income, it shall be determined by reference to the total income of the current year or the average income of the same industry. The amount claimed in the lawsuit shall be reasonably put forward in combination with the following factors:

  1. the children's current actual expenses: tuition fees, medical expenses, daily living expenses of the actual bills, converted monthly;
  2. The income level of the other party: salary flow, deposit base of accumulation fund, social security record, operating income, etc;
  3. Local standard of living: Publicly available data such as per capita consumer spending of local residents can be used as a reference (subject to the official statistics released by the statistical authorities).
  4. The discrepancy between the originally stipulated amount and the claimed amount, along with the reasons therefor.

In practice, the court's attitude towards the increase of alimony is "to support reasonable increment and not to connive at lion's mouths": it is easier to support the increase of actual needs (such as the increase of tuition fees and medical expenses) supported by clear bills; if the amount of claim is raised too high at one time, it may be depressed as a whole due to lack of basis. It is suggested that the request for increase should be limited to the necessary and reasonable scope, and the additional expenses and corresponding evidence should be listed item by item.

4. procedure path and evidence list

The regular way to increase the maintenance fee: negotiate with the other party first, and sign a written agreement to change the maintenance fee (it can be signed by oneself or confirmed by the people's mediation organization and the court's pre-litigation mediation); if the negotiation fails, file a lawsuit for the maintenance fee dispute with the people's court with jurisdiction in the name of the child, requesting an order to increase the maintenance fee. Jurisdiction lies with the basic-level people’s court at the defendant’s domicile or habitual residence; if the other party refuses to comply with the judgment after it is rendered, an application for compulsory enforcement may be filed.

The evidence list suggests to prepare three categories: the first category, the evidence that the children actually need to add-tuition payment vouchers, medical bills, insurance policies, daily living expenses records, and relevant certificates issued by the school; the second category, the evidence of the other party's income changes-salary flow, provident fund deposit records, social security payment base, bank account flow (if it cannot be obtained by itself, apply to the court for investigation); the third category, evidence of the original standard-the original divorce agreement or judgment, the original maintenance standard and payment record. The direct dependant may also indicate the deficiency of the original amount in conjunction with the local cost of living voucher.

Discrimination of 5. Common Misunderstandings

Misunderstanding 1: "The amount of alimony is fixed and can never be changed". Error. Article 1085 of the Civil Code clearly states that "reasonable demands in excess of the original amount may be made when necessary". Article 58 of the explanatory (I) lists the circumstances under which the increase should be supported. Children's illness, further education, rising prices, and the original amount insufficient to maintain the local living standard can all be reasons for the change.

Misunderstanding 2: "When a child goes to a noble school and offers a high-priced training class, the other party must share the full amount". Error. To the extent that it is necessary and reasonable, expenses for public education constitute essential expenditures and should be shared. However, if educational expenses are significantly higher than the general level and have not been agreed upon through consultation, courts will typically not order compulsory sharing; they may, at their discretion, support a partial sharing. Negotiate with the other party and keep communication records before claiming.

Misunderstanding 3: "The original maintenance fee was decided by the court and cannot be changed". Error. The amount determined by the judgment can also be changed-the law does not distinguish between "agreement-determined" and "judgment-determined" maintenance, and if the actual needs of the child change, the child can sue for an increase.

Misunderstanding 4: "The increase of alimony must make up for the previous ten years at one time". Error. The court supports the "reasonable increment": the difference actually occurred in the past and supported by the bill can be claimed to be paid, and the future part is determined on a monthly basis.

Misunderstanding 5: "If the other party has a high income, the maintenance fee will be based on the 30% of his income". Error. The maintenance fee is based on the "actual needs of the children" as the first benchmark. The income ratio is only a reference framework. When the actual need is not high, the court will not mechanically judge the payment according to the other party's income. On the contrary, if the actual need is high and the other party's income is high but the original standard is too low, it should also boldly advocate a reasonable increment and should not be bound by the misunderstanding of "fixed proportion.

6. negotiated changes and enforcement guarantees

The increase of alimony may not always require a lawsuit, and the cost of negotiation and change is lower and the execution is smoother. If the parties agree on the increase, a written agreement may be signed to change the amount of the monthly payment after the change, the starting time, the method of payment (transfer account), the applicable period (until the child becomes an adult or the agreed situation occurs), and the terms of the original agreement or judgment that have been changed. The written agreement is valid when signed by both parties; in order to enhance the enforcement power, the people's mediation organization can jointly apply for judicial confirmation after mediation, or the court can issue a mediation statement after filing a case in the court-the mediation statement has enforcement power, and the other party can directly apply for execution if it fails to perform, There is no need to file a lawsuit. The "1 N" pluralistic resolution mechanism implemented by courts in Ninghai and other places includes such channels.

At the enforcement level, if the other party refuses to perform the maintenance fee determined by the effective judgment or mediation statement, he can apply to the court for compulsory enforcement: the court can check and freeze his bank deposit and deduct it on a monthly basis, which will be included in the list of untrustworthy persons subject to enforcement and restrict high consumption; if the circumstances of refusing to perform are serious, he can be fined or detained. What needs to be reminded is that the "visitation right" in the implementation of the maintenance fee is an independent issue-the other party cannot refuse to pay the maintenance fee on the grounds of "you don't let me visit", nor can you refuse to visit on the grounds of "he doesn't give money". Both go through their own relief channels, and binding treatment will only hurt both sides. If the other party is in arrears for a long time and his whereabouts are unknown, he may apply for public notice service in litigation or enforcement; if inter-provincial performance is involved, the enforcement court may entrust a foreign court to assist in enforcement. In a word, the core of change and execution is "to determine the amount and save the voucher". The negotiation and change are left in writing and the court determines the execution, which are two parallel guarantee lines.

7. FAQ

Can I ask for an increase in alimony at any time?

Not optional, but "when necessary. Article 58 of the (I) of interpretation lists three situations that should be supported (not enough to maintain the local living standard, the actual need to go to school due to illness exceeds the original amount, and other justifiable reasons), which can be claimed in accordance with one of them. The court will not support any repeated claims without justifiable reasons.

Does the other party have to share the high tuition fees for children attending private schools?

Not necessarily. To the extent that it is "necessary and reasonable": tuition and accommodation expenses within the scope of public education are necessary expenses that should be shared by the other party, and tuition fees or non-essential training in private schools that far exceed the local general level, the court usually does not support forcing the other party to share the full amount without the mutual agreement, but may support the part as appropriate in the light of the economic situation of both parties.

Can an increase in alimony claim the difference for many years at a time?

can claim to make up for the reasonable difference that has actually occurred in the past and should be borne by the other party, but it must be supported by evidence and cannot exceed the reasonable range; in the future, new standards will be determined on a monthly basis. It is difficult for the court to support a one-time claim for a large difference without a bill and basis.

Can the child ask for an increase in alimony if he has already gone to college as an adult?

Adult children who have reached the age of 18 but are still receiving Senior high school education or below, or who have lost or partially lost the ability to work and are unable to maintain a normal life due to non-subjective reasons, can still require their parents to pay alimony; those who have grown up and can live independently are generally no longer supported to increase alimony. Whether college students can claim child support is a matter of debate; in practice, parents are often encouraged to reach an amicable agreement on financial support, while legally, the determination hinges on whether the individual “is unable to support themselves independently.”

Practical experience of 8. lawyers

alimony is not the same after signing the agreement and judging the amount, and children can put forward reasonable requirements exceeding the original amount when necessary. However, “necessary” implies that renegotiation cannot be initiated at will; it must be supported by legitimate reasons and evidence. Common situations in which an increase can be claimed include: rising prices and living standards lead to a significant shortage of the original amount, an increase in the actual need for children due to illness or further education, and a significant change in the economic situation of the direct dependant. The first thing the parties have to do is to judge which category they belong to, and then prepare evidence in this direction, instead of shouting that money is not enough.

From the perspective of operation, the evidence should be able to explain two things: one is that the actual needs of the children have indeed increased, and the other is that the other party's affordability can bear it. The former can be substantiated by household education expenses, training or medical receipts, and records of daily living expenditures; the latter can be inferred from clues regarding the other party’s income and business operations. Procedurally, it is the most convenient way to negotiate changes first, and then through litigation claims. It should be noted that when advocating change, it is necessary to make it clear why it is only now, and to write the new agreement into a written and enforceable form.

At the negotiation level, it is often easier to achieve the reason for the increase on specific expenses than simply cutting the amount. If the other party does have difficulties, it can also be modified by adjusting the payment method, installment or agreeing on specific cost sharing. However, no matter how to talk about it, the new amount, time and payment method should be written in writing to avoid refusing to accept the account after oral commitment. If the other party refuses to increase, it is necessary to sort out the previously prepared expense notes and income clues in time and claim through litigation.What needs to be reminded is that the needs of children will continue to change as they grow up. The amount negotiated or determined this time is not the end point. There are indeed new reasons in the future, and adjustments can still be proposed again. The core of alimony is always to protect children, linking it to actual needs and affordability, so that the proposition is both reasonable and tenable.

The "increase" of alimony is a rule-based right relief, not an unfounded renegotiation. Grasp three main points: first, the reason should be justified-determine which one's claim falls on according to the three situations of Article 58 of the (I); The second is to have solid evidence-the actual needs of children increase, the income of the other party change and the local cost of living are all indispensable. Tuition fees, medical bills and salary flow are hard currency. Third, the amount should be reasonable-to the extent necessary and reasonable, combining the 20-30 per cent of total monthly income with the local level, the incremental basis is itemized. Negotiation first, litigation later, prosecution in the name of children, and timely application for enforcement after judgment are complete and feasible operation chains.