Insights

Can Ningbo claim child support during separation?

Ningbo Author：LuXu WANG

After Xiao Li separated from his wife, the child was directly raised by Xiao Li. The wife has a steady income but refuses to pay child support during the period of separation. Xiao Li wants to know: Before the divorce has been finalized, can he file a lawsuit to request that his wife pay child support for this period? The answer is yes. During the period of separation, the parent who is not directly responsible for the care of the children still has a duty to provide support; the parent with custody or the child themselves may independently bring a lawsuit to require the other parent to pay child support for the period of separation, without having to wait until divorce proceedings are initiated. The obligation to support is based on the relationship between parents and children, and is not exempted by separation or divorce of parents, nor is it premised on marital status.

1. Legal Basis and Right Basis

Article 1067 of the Civil Code of the People's Republic of China stipulates: If parents fail to fulfill their duty to support, minor children or adult children who are unable to support themselves have the right to request their parents to pay maintenance. Article 1058 stipulates that both husband and wife shall equally enjoy the right to raise, educate and protect their minor children, and jointly undertake the obligations of raising, educating and protecting their minor children. Furthermore, Article 1,085 of the Civil Code explicitly provides that, following divorce, if a child is placed in the direct care of one parent, the other parent shall bear all or part of the child support expenses. It is important to emphasize that this obligation remains in effect during periods of separation and throughout divorce proceedings; separation is merely a special state within the ongoing marital relationship and does not alter the parents’ duty to provide for their children.

From the perspective of the subject of rights, the right to claim alimony during the separation period belongs to the children themselves, and the minor children should be directly raised as the legal representative for litigation; in practice, the lawsuit is usually sued in the way of "children as plaintiffs and direct supporters as legal representatives", and the litigation request can be expressed as asking the other party to pay the alimony during the separation period, and it can be claimed to continue to pay monthly from the date of prosecution. Judging from the type of litigation, such disputes belong to alimony disputes, and there is a legal basis for litigation alone-this is not only the choice of litigation economy, but also to avoid one party to delay performance on the grounds of "not yet divorced.

Review Elements of 2. Court Support

In asserting alimony during separation, the court typically reviews three sets of facts:

  1. Fact of Separation: Whether the parties are separated, and the start and end dates of the separation. It is necessary to provide objective evidence such as rental contract and rent payment record, residence registration certificate, property payment record, chat record of both parties about separation, witness testimony, etc. If there is no trace of externalization, it may be difficult to identify the simple "each passing through its own.
  2. The children are actually raised by one party: which party the children live with for a long time and who takes care of their daily life. School transportation records, medical records, vaccination books, neighborhood and community certificates can be used as evidence.
  3. the affordability of the other party: whether the party who has not been directly supported has a fixed income and what the income level is, so as to determine the amount that he should bear.

In terms of the amount, the maintenance fee is determined according to the actual needs of the children, the affordability of both parents and the actual local living standards. According to Article 49 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, if there is a fixed income, the maintenance fee can generally be paid at a ratio of 20% to 30 of the total monthly income; for two or more child support, the proportion can be appropriately increased, but generally not more than 50% of the total monthly income; if there is no fixed income, it shall be determined with reference to the total income of the current year or the average income of the same industry; in case of special circumstances, it may be appropriately increased or decreased. The maintenance owed during the separation period may require a one-time payment of the expired portion, and the unexpired portion shall continue to be paid on a monthly basis.

Breakdown of 3. situations: how to claim for different stages and different subjects

According to time and relationship status, alimony disputes during separation can be subdivided into several types of scenarios:

  1. marital separation (divorce has not yet been sued): you can directly sue in the name of the children for the payment of alimony during the period of separation without first filing a divorce lawsuit; the amount determined by the court judgment can be used as a reference for dealing with the issue of support in subsequent divorce lawsuits.
  2. During the divorce proceedings: You can claim together in the divorce proceedings, or you can first sue separately for alimony-alimony claims are relatively independent, and separate treatment does not affect the trial of divorce cases.
  3. Recourse of historical arrears after divorce: if the other party is found to be in arrears during the period of separation and litigation after divorce, the overdue part can be sued for recovery.
  4. Special circumstances such as one party serving a sentence, loss of contact, etc.: if the income ability of the prisoners is limited, the court will decide or suspend the payment according to its actual economic situation (for example, in the case of divorce dispute between Li and Zhu in Ningbo court, the defendant will pay from the next month after serving his sentence); if one party loses contact, the lawsuit can be promoted through public announcement.

The limitation of action needs special explanation: Article 196 of the the People's Republic of China Civil Code stipulates that the right of claim for payment of alimony is not subject to the limitation of action. In other words, the child's claim that the alimony itself is not subject to the three-year statute of limitations-the party who did not directly support the defense on the grounds of "too long time" has no basis in the law; However, this does not mean that the evidence can not be preserved. The longer the separation is, the more difficult it is to prove the facts of separation, who will raise the children and the income status of the other party, and the more timely evidence must be fixed.

4. operational steps and evidence list

claim maintenance during the period of separation, can be operated according to the following steps:

  1. Collect the evidence of separation: rental contract and rental payment records, residence registration certificate, property payment records, and the expressions about separation in the communication records of both parties. In Ningbo, the above materials can be used as evidence of separation.
  2. Keep the children's expenditure vouchers: tuition, training fees, medical expenses, interest classes, daily life expenditure bills, which are used to explain the actual needs of children.
  3. Know the income of the other party: salary flow, accumulation fund deposit record, social security payment base, etc., which are used to determine the affordability.
  4. Negotiate in advance: Send a written reminder to the other party, claim to pay the maintenance fee during the separation period, and leave a communication record.
  5. If the negotiation fails, sue in the name of the child to the people's court with jurisdiction (the plaintiff is the child, and the direct dependant is the legal representative), appeal to make up the outstanding part and pay monthly from the date of the lawsuit.
  6. If the other party still fails to perform after the judgment takes effect, apply for compulsory execution; the alimony that has been judged or paid during the separation period can be deducted accordingly at the time of divorce.

Discrimination of 5. Common Misunderstandings

Myth 1: "The alimony during separation must be calculated together with the divorce". Error. Maintenance during separation can be sued separately, and the direct dependant can sue in the name of the child, without waiting for the divorce proceedings to start. Waiting until the divorce is calculated will only snowball the amount owed and risk the loss of evidence.

Misunderstanding 2: "You have no right to alimony before divorce". Error. The obligation to raise children is based on the relationship between parents and children rather than marital status. Articles 1067 and 1085 of the Civil Code support children to claim maintenance from their parents. Children born in wedlock under separation are also protected.

Misunderstanding 3: "Advocating separation support will affect the division of property in divorce". Error. The lawsuit of maintenance and the division of divorce property are independent procedures, the former protects the interests of the children, the latter deals with the property of the husband and wife, and the court will not reduce the proportion of property division in divorce proceedings because you have claimed maintenance in advance.

Myth 4: "If the other party doesn't give it, I will drag it, and the child will follow me anyway". Error. The cost of delay is the accumulation of arrears and the loss of evidence. The longer the separation, the more difficult it is to prove the "separation starting point" and "who has been raising the children", and the other party may also claim deduction on the grounds that "part of the cost was also paid during the separation" and lack of evidence. Prompt prosecution and billing of the fees paid on a case-by-case basis would be the safest arrangement.

Misunderstanding 5: "The amount of alimony is based on a fixed proportion of the other party's salary, and both parties have no need to talk about it". Inaccurate. 20%-30% is the reference range of the judgment rather than the mandatory standard. The court will comprehensively determine the actual needs of the children, the local living standard and the affordability of the other party. The amount agreed by both parties above or below this range is usually respected by the court as long as it does not harm the interests of the children. When claiming the amount, neither overcharging nor self-limiting, it is safest to use actual expenses plus evidence as an anchor.

6. payment methods, deductions and enforcement guarantees

The realization of alimony during the separation period needs to implement the three implementation issues of "how to pay, who to pay and what to do if not to pay. In terms of payment method, the court usually orders monthly payment to the direct dependant's account, and may also negotiate quarterly, annual payment or one-time payment-one-time payment is generally applicable to situations where the other party goes abroad, long-term loss of contact, etc. is difficult to perform on a monthly basis. The amount is converted according to the total amount to be paid and interest factors are considered. The court will decide whether to support it based on the case. As for the object of payment, the payment shall be clearly paid to the special account of the direct dependant or the child himself, so as to avoid disputes caused by "giving the intermediary" and "cash delivery without certificate.

In terms of deduction rules, the children's living expenses, education expenses and medical expenses that one party has directly spent during the separation period can be settled together when claiming maintenance expenses: the reasonable expenses that can prove that the other party has paid but not paid during the period can be deducted; otherwise, the part that the other party has directly paid should be deducted. The settlement caliber is based on bills and transfer records, and it is difficult to obtain credit for oral "I gave money.

In terms of enforcement protection, if the other party refuses to perform the maintenance fee after the judgment or mediation statement determines the maintenance fee, it can apply to the court for compulsory enforcement. The measures include: inquiring and freezing bank deposits, withholding income, sealing up auction property, including the list of untrustworthy persons subject to enforcement, and restricting high consumption; for those who refuse to pay the maintenance fee and the circumstances are bad, compulsory measures such as fines and detention can also be taken according to the law. Maintenance claims do not apply to the statute of limitations in accordance with Article 196 of the Civil Code, and the historical arrears can be pursued continuously, but the enforcement application itself should be submitted in a timely manner to avoid the other party's transfer of property leading to the failure of enforcement. The earlier the issue of alimony is resolved during separation, the smaller the amount owed and the lower the difficulty and cost of enforcement.

7. FAQ

If you sue for alimony before divorce, will the court accept it?

Yes. Maintenance disputes and divorce disputes are independent cases, the direct dependents can sue separately in the name of the children to claim the payment of maintenance during the separation period, the law does not "must first divorce" restrictions. Articles 1067 and 1085 of the Civil Code both support children to claim alimony from their parents when necessary.

During the separation period, one party has already paid part of the expenses, can it be deducted?

Yes. The actual payment of living expenses, education expenses, medical expenses, etc., can be deducted in the calculation of the outstanding maintenance, it is recommended to retain the payment voucher. The parties may also settle the costs paid during the separation in the divorce proceedings to avoid double counting.

Will claiming alimony during separation affect the division of property during divorce?

Generally not affected. An action for child support addresses the issue of child support payments, while a divorce proceeding concerns the dissolution of the marriage, division of property, and determination of parental custody—these two types of proceedings are independent of one another. However, the income information and the child’s living arrangements ascertained in a dispute over child support during the period of separation may serve as relevant factual considerations in the subsequent divorce litigation.

The income of the other party is very high, can the alimony be paid according to the high proportion?

Child support is primarily determined by the “actual needs of the child,” and does not necessarily increase in proportion to the higher-income parent’s earnings. Those with a fixed income are measured in the range of 20-30 per cent of total monthly income, taking into account the actual needs of their children and the local standard of living.

If the child is usually taken care of by the elderly, can you still claim the separation maintenance fee?

Sure. The actual care of the child does not affect the existence of the duty of maintenance-the care of the elderly usually only helps the direct caregiver to perform the duty of maintenance, and the party who does not directly raise the child still has to bear the maintenance fee. When claiming, it is sufficient to state the fact that the children live with the direct dependant and the elderly assist in the care, and if necessary, provide proof that the elderly and the children live together and the direct dependant bear the main expenses. At the same time, note that if, during the period of separation, the parties agree that an elderly family member will provide care and one party has paid the associated care expenses, whether such expenses should be offset against child support may be determined through negotiation based on the terms of the agreement and supporting documentation. In the absence of such an agreement, the care expenses are generally regarded as part of the direct custodial parent’s contribution to the child’s upbringing and do not preclude that parent from separately claiming child support.

8. Lawyer's Practical Insights

Separation does not equate to divorce, but the obligation to provide support is not excused by separation. The party who does not directly raise the child still has the obligation to raise the child, and the party who directly raises the child or the child himself may sue separately for the payment of alimony during the period of separation without waiting for the initiation of divorce proceedings. Many people mistakenly think that "they have not divorced yet, why should they ask each other for money?" as a result, they have carried it alone for a long time, and it is more troublesome to want to come back afterwards. Remember that this obligation arises on the basis of the relationship between parents and children and does not presuppose marital status.

Evidence should focus on two key aspects: who is actually raising the child, and whether the other party has the financial capacity to provide support. The former is substantiated by the child’s daily routines—where they live, who takes them to and from school, who accompanies them to medical appointments, and who covers their everyday expenses; receipts, parent-group chat messages, medical records, and proof of residence can all serve as evidence. The latter is supported by information about the other party’s income, employer, and any assets they may own. At the same time, keep your advance vouchers, these expenses can often be used as a basis for deduction or compensation when the divorce is divided, and don't lose them after paying.

When advocating, the period and amount should be calculated clearly. Don't mention a number in general, which is easy to be considered as unclear. It can be sued separately or put forward together in divorce proceedings to see which is more time-saving and more conducive to enforcement. In the negotiation, it is much more practical to make a list of the expenses that have been paid in advance as an item to be converted or deducted at the time of division than to repeatedly argue about "how much you should pay. If the other party pleads with "why not give a divorce", he will explain the source of the maintenance obligation, and at the same time clarify the payment method and time limit, so as to avoid winning the reason but not getting the money.

The basis of the right to alimony during separation is clear: the obligation to support is derived from the parent-child relationship and is not interrupted by separation. Three suggestions to the parties: first, claim in time and don't delay divorce-the longer the separation time, the greater the amount of arrears and the higher the difficulty in fixing the evidence. Separate prosecution in the name of children is an efficient relief channel; Second, evidence is king-the fact of separation, the status of children's support, the other party's income and children's expenses are indispensable, ningbo local rental contract, residence registration, property payment records, etc. can be used as evidence of separation; third, the accounts are settled-the paid fees are retained for deduction, and the maintenance fees determined by the judgment or agreement are used as a reference at the time of divorce to avoid repeated claims or calculations of the same fees.