What if the other party does not pay alimony during Ningbo separation?

Xiao Zhang and her husband are separated due to emotional discord, and the children live with Xiao Zhang. During their separation, the husband refused to pay child support, leaving Ms. Zhang to shoulder the child’s expenses on her own. First conclusion: during the period of separation between husband and wife, the parents' obligation to raise their children is not exempted. If one party fails to perform the obligation of raising, the minor children (or adult children who cannot live independently) have the right to require them to pay the maintenance fee during the period of separation; if the negotiation fails, the child may be the plaintiff and the party who does not directly support the child may be the defendant, file a lawsuit for alimony dispute with the basic people's court of the defendant's residence, and apply for enforcement if necessary. The separation is not "who takes who raises", and the legal obligation is not broken for a moment.

1. legal basis: the original text of the provisions and the disassembly of the requirements

Article 1067 of the the People's Republic of China Civil Code stipulates that if parents fail to fulfill their duty of raising children, minor children or adult children who cannot live independently have the right to ask their parents to pay maintenance. Article 10158 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.

Dismantling of essential requirements: firstly, the subject of obligation is both parents, and the obligation of raising comes from parent-child relationship rather than marriage relationship. Neither separation nor divorce will change the existence of obligation, and the difference only lies in the arrangement of payment method; secondly, the subject of right is the children themselves, and the party directly raising them acts as legal representative in the lawsuit; thirdly, the scope of payment is "necessary living expenses, education expenses, medical expenses and other expenses", which is consistent with the scope of maintenance after divorce. Compared with the maintenance after divorce, the maintenance during separation is characterized by "no effective document basis"-the two parties have not reached any agreement or judgment on the amount, so the claimant must prove the needs of the children, the affordability of the other party and his actual expenses, which is also the reason why the evidence work in such cases is more heavy.

2. Commencement and standard of child support during the period of separation

starting time: during the separation period, the maintenance fee is generally calculated from the date of separation (I. e. the date when the obligated party stops performing its obligations), and the claimant must submit evidence to prove the starting time of separation-separation agreement, rental contract, residence registration, the contents of confirmation of separation in chat records, etc. Practical tips: some courts on the "early stage of separation" recourse tends to start from the reasonable period before the prosecution, the longer the time, the thinner the evidence, the easier it is to be compressed, so it is found that the other party should be fixed as soon as possible after the refusal to pay, as soon as possible to claim, do not delay to divorce a muddle-headed account.

Standard and Amount: With reference to the post-divorce alimony rules (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), it is determined according to the actual needs of children, the affordability of parents and the actual living standard of the place; those with fixed income are generally paid 20%-30% of the total monthly income, and no more than 50% of the two or more children are borne. When the Ningbo court approves the specific amount, combined with the local cost of living and the income status of both parties, the claimant shall submit the actual expenditure vouchers (tuition fees, medical care, custody and other bills and transfer records). During the period of separation, the maintenance fee is not "meaning", nor is it only calculated mechanically according to the lower limit of the other party's income. The more complete the expenditure voucher, the closer the supported amount is to the actual needs.

3. Tracing Path and Operation Steps

Step one: Document the negotiation process. First, communicate with the other party in writing or through a retentable way (WeChat, SMS) to make clear the amount and time limit-the negotiation process itself is the process of fixing the evidence of "the other party refuses to pay" to avoid the other party arguing "I don't know how much to pay" in the future ".

The second step, fixed separation and expense evidence. Evidence of separation: rental agreement, proof of living in a different location, separation agreement, and WeChat communication records. Evidence of expenses: receipts and bank transfer records for major expenditures such as tuition fees, medical expenses, daycare fees, and extracurricular class fees. It is recommended to maintain a separate expense ledger starting from the date of separation.

Step 3: File a lawsuit. If no agreement can be reached, the minor child shall be the plaintiff, and the parent who does not have direct custody shall be the defendant, and a lawsuit concerning child support shall be filed with the basic people’s court in the defendant’s domicile; if the defendant’s habitual residence differs from their domicile, the habitual residence shall prevail. After filing a case, the court usually mediates first.

Step 4, Execution. If the other party still fails to comply after the judgment takes effect, you may apply to the court for compulsory enforcement, which may include freezing their bank accounts, adding them to the list of discredited persons, and imposing restrictions on high‑value consumption; during the period of delayed performance, double the statutory interest shall be charged on the debt.

Step 5: Liquidation at the time of divorce. Alimony that remained unpaid during the period of separation may be claimed in the divorce proceedings and handled together with post-divorce alimony and property division to prevent any omissions.

Limitation Prompt: According to Article 196 of the Civil Code, the right to claim for alimony is not subject to the limitation of action; but for the alimony during the separation period that has expired, in practice, it is usually claimed according to ordinary creditor's rights and reviewed the limitation defense. The safe way is still to claim in time, so as not to let the difficulty of proof of "historical debts" accumulate over time.

4. Common Misunderstandings and Positive Solutions

Myth 1: “During separation, the parent with whom the child lives should be the one to pay.” Correct solution: both parents have the obligation to raise, separation only changes the common living state, does not change the distribution of obligations, do not directly raise one party should still share.

Misunderstanding 2: "Only after divorce can alimony be paid". Correct solution: The obligation to support is independent of marital status and can be claimed during separation. Article 1067 of the Civil Code is the direct basis.

Misunderstanding 3: "The standard of alimony must be very low during the period of separation, just give some symbolically". Positive solution: According to the actual needs of the children, the affordability of both parties and the local living standard, the expenditure voucher can be close to the post-divorce standard when it is sufficient.

Myth 4: "If the other party doesn't give it, he won't be allowed to look after the child, and see if he is in a hurry". Correct solution: alimony and visitation right are two independent rights. There is no basis in law for refusing to pay or preventing the refusal of visitation. The correct approach is to go their own way of relief-the lawsuit of alimony and the lawsuit of visitation right are parallel.

Myth 5: “A verbal promise is enough; there’s no need to put it in writing.” Correct solution: oral promises during separation are difficult to prove, and should be fixed by transfer and written confirmation, so as to leave a basis for future recourse and divorce settlement.

Deduction example (example, fictitious): during the child's life with the mother, the father has been separated for two years without paying alimony, the mother sued in the name of the child, submitted the separation agreement, tuition bills and daily expenses ledger, and the court ordered the father to pay the alimony during the separation period according to the standard of 25% of the monthly income and continue to pay monthly until the child reaches adulthood; another case due to the absence of expense, the court only determines the lower amount in accordance with the average local standard of living-the integrity of the document directly determines the amount to be compensated.

The connection between alimony during 5. separation and divorce procedure

The alimony disputes during the separation period are usually just the prelude to the divorce battle, and proper connection arrangement can save a round of litigation. First, the divorce should be liquidated together: unpaid alimony during separation and large expenses for children already paid by one party can be claimed together as independent requests in divorce proceedings, and handled in the same case as alimony and property division after divorce, so as to avoid "another alimony lawsuit after divorce"; When claiming, specify the period, monthly amount and calculation basis, and speak according to the ledger. Second, it is confirmed by the mediation statement: if the two parties reach an agreement on alimony during the separation period, they will strive to fix it in the court mediation statement. The mediation statement and the judgment have the same enforcement force. In the future, the other party can directly apply for enforcement if it goes back on its word, and there is no need to sue separately. Third, pay attention to the boundary with the division of property: during the period of separation, the maintenance fee is the child's claim, not because one party in the division of property "more steps" and of course offset, unless both parties expressly agree in writing to offset the property, otherwise should be dealt with separately, separately left marks. Fourth, the length of separation time affects the liquidation caliber: if the separation time is long and the amount owed is large, monthly vouchers and collection records are particularly important. If necessary, the fixed creditor's rights shall be sued separately for the maintenance fee during the separation period, and then the divorce procedure shall be entered to prevent the failure to prove the evidence after a long time.

Enforcement measures and credit penalties for 6. refusal to pay alimony

If the maintenance payment is still refused after the judgment or mediation is confirmed, the execution procedure will be increased step by step: the court first issues an execution notice and orders to report the property, and those who fail to perform within the time limit can freeze the bank account, deduct the deposit and seal up the auction property; at the same time, credit punishment should be taken-including the list of those who have broken their promises (affecting loans, travel, children's attendance at high-fee schools, etc.), restricting high consumption (restricting high-speed rail by plane, staying in star hotels, etc.); those who have the ability to perform but refuse to perform, and the circumstances are serious, may be subject to judicial detention, and those who constitute a crime shall be investigated for criminal responsibility according to law. The case of alimony is a case involving people's livelihood, and priority is usually given to filing and execution in the execution. The monthly alimony paid is generally guaranteed to be continuously performed by means of "one-time freezing of expenses for the next 12 months or withholding by the unit". If the direct supporting party finds that the other party has signs of transferring property, it may apply for property preservation. It should be noted that credit-based sanctions are not an end in themselves but rather a means; most defaulting parties voluntarily fulfill their obligations once their travel and access to financing are restricted. The party with direct custody should retain records of each payment received and promptly apply for enforcement if payments are interrupted, so as to prevent arrears from accumulating to the point where recovery becomes difficult.

Tips on the sharing of special expenses such as medical treatment for 7. serious diseases

If a child has a sudden serious illness during the separation period and incurs high medical expenses, the burden rules should be clearly thought out in advance. Fixed alimony usually covers general medical expenses, but large expenditures such as serious illness, long-term rehabilitation and special treatment often exceed the coverage of alimony and belong to "necessary and reasonable special expenditures"-even if there is no agreement in the divorce agreement or judgment, the direct dependant may require the other party to share the actual large medical expenses in proportion, and the court generally decides according to the necessity of expenditure and the affordability of both parties. There are three key points in operation: first, keep complete medical certificates-diagnosis certificate, hospitalization list, medical insurance settlement form, and some bills at one's own expense, and correspond one by one; Second, timely notification and negotiation-inform the other party immediately after the occurrence of serious illness and keep communication records, which not only reflects the sincerity of sharing the responsibility, but also avoids disputes caused by "cutting first and playing later" expenditure. Third, large-sum expenditures should be paid through bank transfer and noted, can't restore after avoiding cash outlay. Related to this, the expenditure on necessary education and training (e. g., school-required studies and supplementary lessons) for children during the period of separation is between "necessary" and "independent choice" in nature, and the court's review is stricter, arguing that the sharing should prove its necessity and rationality, rather than counting all expenses into alimony.

8. Frequently Asked Questions

Can I ask the other party to pay alimony during separation?

Yes. The obligation to maintain is not waived by separation, and if one party fails to perform it, the child may require him to pay maintenance for the period of separation without waiting for divorce.

In whose name should the lawsuit be filed?

Where the minor child is the plaintiff, the parent with whom the child resides shall participate in the litigation as the legal representative; the defendant shall be the parent who does not have custody of the child and has failed to fulfill their parental obligations.

When does alimony during separation start?

Generally, it is calculated from the date of separation (the date when the obligated party stops performing), and it is necessary to submit the rental contract, separation agreement and other evidence to prove the starting time; the earlier the fixed evidence is, the better.

How to set the alimony standard?

According to the actual needs of children, the affordability of parents and the local living standard, 20%-30% of the reference monthly total income with fixed income; the more complete the expenditure voucher submitted, the higher the amount of support.

Can I still ask for child support during separation after divorce?

Can. Unpaid alimony during separation may be claimed in divorce proceedings together with alimony after divorce to avoid omission.

9. Practical Insights from a Lawyer

Living apart does not mean living separately. The party with the children should bear the expenses alone, which is not supported by law. Parents’ obligation to support their children arises from the parent–child relationship and is not terminated by separation, or even divorce. The real difficulty is that the alimony during the separation period is not supported by an effective document, and the two parties have never agreed on the amount. Therefore, the party claiming the separation has to prove three things: the child really needs the money, the other party has the ability to afford it, and you have actually spent it. Don't think that if he is separated, he should take the initiative to give it. This proof is not ready, and it is easy for the other party to say that she didn't ask me to come back.

In terms of operation, the starting time is the first fact to be fixed. Generally, it starts from the date of separation and the other party stops performing its obligations. It needs to be supported by the separation agreement, rental contract, residence registration or chat record that can confirm the separation. Next, organize the child’s actual expenses—keep all receipts and bank transfer records for tuition, medical bills, and everyday spending. Then you can proceed to claim, usually with the child as the plaintiff and you as the legal representative, to file a lawsuit with the court where the party's domicile is not directly raised, requesting the payment of alimony during the separation period, the amount of which refers to the general standard claim of alimony after divorce, and the reasons are explained in the light of the other party's income.

If the divorce proceedings are already in progress, it is usually more convenient to settle the alimony during the separation and the divorce case together than filing a separate case, and the two procedures do not wait for each other. If the other party still does not give it after getting the result, he can apply for enforcement and include punishment for dishonesty, which will have an impact on his loan, travel and operation-this is a very important bargaining chip in the negotiation. In addition, we should keep a heart: children's serious illness, large medical treatment and special education expenses are often beyond the scope of daily alimony. They should be put forward separately when claiming, and should not be mixed into the fixed amount, otherwise they will have to fight again in the future.

During the separation period, the other party did not pay alimony, and the law left a clear channel for the children: leaving traces through negotiation → fixing evidence → suing in the name of the children → execution after the judgment → liquidation during divorce.Three key actions should not be omitted-the fact of separation is fixed in a timely manner, the expense vouchers are recorded one by one, and the evidence of refusal to pay is retained as soon as possible. For direct dependents: don't use the mentality of "the child follows me to suffer losses" to carry it to the end. the child's right to claim alimony is legal, and claiming for the child is both a right and a responsibility. For those who do not directly support the child: separation does not reduce their obligations, and arrears will only accumulate into the liquidation burden and execution risk in divorce.

Add a practical detail that is easy to be ignored: during the separation period, alimony is claimed, and the corresponding relationship between collection and expenditure should be closed-loop-the claimed amount should match the actual expenditure scale of the child, large expenditure should be kept in bills and daily expenditure should be kept in ledgers, and the logic of "expenditure should be fixed and fee should be fixed" when approved by the court. At the same time, the nature of the payments made by the other party (maintenance or gifts, loans) is confirmed in a timely manner to avoid ambiguity in the nature of future reconciliations. Every account during the separation period is a card on the negotiation table during the divorce-remember clearly and keep a good card, and the children's rights will be more protected.