Insights

Can Ningbo divorce be recovered without alimony?

Ningbo Author：LuXu WANG

Some couples, when divorcing by mutual agreement, fail to include child support provisions in their divorce agreement for various reasons, or they may verbally agree that one party will not pay. Later, the parent who was raising the child faced increasing financial pressure and sought to request additional child support from the other parent, but the latter refused, citing the claim that “it had been agreed at the time that no further payments would be made.” In this situation, can the debt still be recovered? To answer upfront: yes. The obligation to support is the legal obligation of the parents, and it is not exempted because the divorce agreement is not agreed or verbally waived-minor children can directly claim support from the party who does not directly support, and the direct support party will act as the legal representative to sue in the name of the child; the amount of support is determined by the court according to the actual needs of the children, the affordability of the parents and the actual living standard of the place, it is usually paid at 20 to 30 per cent of the total monthly income of the party who does not directly support the party, and the burden of more than two children may be appropriately increased but generally does not exceed

50per cent of the total monthly income.

1. Legal Basis and Element Breakdown

Article 1085 of the Civil Code of the People's Republic of China stipulates: "After divorce, if the children are raised directly by one party, the other party shall bear part or all of the child support expenses." The amount of the expenses to be borne and the duration thereof shall be determined by agreement between the parties; if no agreement can be reached, 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."

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 stipulates that the amount of alimony can be 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, the alimony can generally be paid according to the proportion of 20% to 30 of their total monthly income, and for those with more than two children's alimony, the proportion may be appropriately increased, but generally it shall not exceed 50% of the total monthly income; if there is no fixed income, the amount of alimony may be determined on the basis of the total income of the current year or the average income of the same industry, with reference to the above-mentioned proportion. Article 52 stipulates that both parents may agree that one party shall directly raise the child and the direct supporter shall bear all the child support expenses, but the direct supporter's ability to raise the child obviously cannot guarantee the expenses required by the child and affect the healthy growth of the child, the people's court No support.

There are three levels of rules that need to be clarified: firstly, the obligation to raise children originates from the relationship between parents and children, which is legal and compulsory, and will not disappear because the divorce agreement "does not agree"; secondly, the "agreement that one party does not pay alimony" has internal effect only when the direct supporter has the ability to guarantee the needs of the children, and can not resist the reasonable request of the children according to the actual needs in the future; thirdly, the subject of the right to recover maintenance is the child himself (the claimant), and the direct supporter is the legal representative, so the plaintiff is the child and the direct supporter is listed as the legal representative at the time of the prosecution.

It is also necessary to pay attention to the difference between giving up the maintenance fee and agreeing on the whole burden of one party: the former usually means that the direct supporter does not promise to pay, and the direct supporter temporarily gives up the claim, giving up the limited effect on the children, and the children can still claim according to the actual needs; the latter means that the direct supporter voluntarily bears all the expenses, which is limited by the proviso of Article 52 of the Interpretation (I). In the event of a divorce by agreement where property or a lump-sum compensation is used to offset child support, it is advisable to specify in the agreement the terms of such offset and the corresponding amounts, so as to avoid future disputes over whether the right to claim child support was waived at the time.

2. subdivide the processing rules according to the agreed situation

  1. The divorce agreement does not stipulate the maintenance fee: the direct maintenance can demand the other party to pay in the name of the child at any time, and the court will judge according to the legal standard; whether the historical period not agreed can be recovered or not must be judged according to the actual burden of the other party, and the maintenance fee after the prosecution and the upfront expenses with definite basis can be generally claimed.
  2. If one party fails to pay as agreed: An oral waiver of child support lacks written evidence and cannot override the child’s statutory rights; when the custodial parent faces increased financial pressure, they may still file a lawsuit to claim child support.
  3. It is agreed in writing that the directly custodial parent shall bear all child support expenses (the other party shall not be responsible).: According to Article 52 of the (I) of Interpretation, the agreement is binding on both parties, but if the direct dependant's support ability is obviously insufficient and affects the healthy growth of the children, the court will not support it; According to Article 16 of the (II) of Interpretation of Marriage and Family Compilation implemented in 2025, such agreement is effective, but the economic status of the direct dependant changes after divorce, which leads to a significant reduction in the original living standard, or if the children's living, education, medical and other necessary expenses increase significantly, the children can still request the other party to pay alimony, the court comprehensive agreement as a whole, the actual needs of the children, the affordability of the other party and the local living standard.
  4. requires an increase after the payment is agreed: when necessary, children can request an increase according to the second paragraph of article 1085 of the civil code-if the original amount is not enough to maintain the actual living standard of the place, and the actual needs such as female illness or schooling exceed the original amount, it can be claimed, but the objective fact that the cost has increased significantly must be proved.
  5. Non-performance of the other party's arrears: According to Article 17 of the (II) of Interpretation, if the party who does not directly raise the children fails to pay the maintenance fee as agreed or promised in the divorce agreement, the children can request to pay the arrears; if the children have reached adulthood and can live independently, the direct dependant can also request the other party to pay the previous arrears.

3. Determination of the amount of child support and burden of proof

Child support is not determined arbitrarily; the court considers three factors: the child’s actual needs (including living expenses, education costs, and medical expenses), the parents’ financial capacity (income, assets, and other support obligations), and the local standard of living. For those with fixed income, the proportion is 20% to 30%, but the proportion is only a reference-those with abnormally high or abnormally low income will be adjusted: those with monthly income of tens of thousands of yuan will not mechanically judge the abnormally high amount by 30%; If the income is too low, the local basic living standard will be guaranteed. For individuals with no fixed income (self-employed, freelancers, or unemployed), the amount shall be determined by reference to their total annual income or the average income of the same industry, taking into account their financial circumstances. The party claiming alimony shall provide evidence: children's expenditure vouchers (life, education, medical bills and ledgers), the other party's income clues (salary flow, tax records, social security payment base, business income clues); If the other party's income is unknown, it may apply to the court for investigation or obtain its social security and tax information according to law.

There are two directions for the amount adjustment: if the actual needs of the children are significantly increased or the income of the other party is significantly increased, the increase can be requested; if the situation changes such as the sudden drop of the income of the direct dependant and the heavy burden caused by reproduction, the appropriate reduction can also be requested-the increase and decrease are all based on the change of situation, and it is difficult to obtain support if the adjustment is required by mechanically applying the old standards or by emotional reasons.

4. Key points of the recovery path and procedures

  1. Negotiation and Mediation: First, negotiate with the other party to retroactively agree on child support arrangements; if no agreement is reached, you may apply for mediation through a people’s mediation organization or a pre-litigation mediation center of the court.
  2. sue in the name of the child: prepare the complaint (the plaintiff is a minor child and is listed as legal representative), birth certificate, divorce agreement or judgment, expenditure certificate and other materials, and sue to the court with jurisdiction (generally the court of the defendant's domicile);
  3. The particularity of the limitation of action is not applicable: According to Article 196 of the Civil Code, the right to claim for alimony is not applicable to the limitation of action-the child can still claim the alimony owed by the other party during the minor period after he reaches adulthood (the second paragraph of Article 17 of the Interpretation (II) is also confirmed), and there is no need to worry about "expiration and invalidation";
  4. compulsory execution: if the other party still fails to pay after the judgment takes effect, it can apply to the court for compulsory execution (deduction of wages and income, investigation and control of property, etc.).

Specifics of alimony enforcement: In cases where the child is the applicant for enforcement, the court may garnish the obligor’s wages, freeze their bank accounts, add them to the list of discredited persons, and impose restrictions on high‑value consumption; overdue installments under a judgment for installment payments may be cumulatively subject to enforcement proceedings. If the executed person requests relief on the grounds of remarriage and childbirth or income decline, it shall be subject to separate litigation and change, and the payment cannot be unilaterally stopped; the direct dependant shall not refuse to exercise the right of visitation on the grounds that the other party is in arrears with the maintenance fee-the maintenance fee and the right of visitation are two independent rights and obligations and cannot be used as bargaining chips for each other.

5. (example, fictional) deduction case and local referee reference

During their divorce by mutual agreement, a couple in Ningbo stipulated that “the daughter would be raised by the mother, and the father would not pay child support,” on the grounds that the husband was leaving with nothing. Three years later, after the mother lost her job and the costs of the daughter’s education and medical care increased, she filed a lawsuit in the daughter’s name, demanding that the father pay child support. The court found that the agreement in the divorce agreement on not bearing alimony could not exempt the man from his legal obligation to raise him, and that the economic situation of the direct supporter had changed and the children's expenses had increased significantly, which was in line with Article 16 of the (II) of interpretation. The court ruled that the man should pay alimony at 25% of his monthly income until his daughter reached the age of 18. The handling of similar cases in Ningbo court can be referred to: according to the public judgment of divorce disputes in Ningbo court, Chang mou and Meng mou (Ningbo jiangbei court) decided to grant divorce, the legitimate children were directly raised by the plaintiff, and the defendant paid 1000 yuan per month of alimony. In the divorce dispute between Li mou and Zhu mou, the married daughter was directly raised by the plaintiff and the defendant paid 1000 yuan to 18 years of age monthly alimony from the next month after serving her sentence; in the divorce dispute between Chen Mou and Luo Mou, the children are directly raised by Luo Mou and Chen Mou pays the maintenance fee in installments to adulthood-monthly quota or installment payment is a common way for local judges in Ningbo, and the amount is determined by combining the actual needs of the children, the affordability of the parents and the local living standard.

6. Common misconceptions and correct answers

  1. Misunderstanding 1: You can't ask for alimony if the divorce agreement doesn't include it.The obligation to provide support is statutory; the absence of an agreement does not preclude a child from asserting their rights, and the child may directly file a lawsuit in their own name to demand payment.
  2. Misconception No. 2: An agreement stipulating that one party will not pay child support is permanently valid. The agreement is only valid when the direct dependant has the ability to guarantee the needs of the child; when the economic changes or the child's expenses increase significantly, the child can still request payment or increase (Article 16 of Interpretation II).
  3. Misunderstanding 3: Alimony can only be paid in proportion to the other party's salary.The court determines the amount based on the actual needs, the ability to pay, and the local standard of living; the specified percentage is only a reference and not a rigid formula.
  4. Misconception 4: Child support cannot be pursued after three years.The right to claim child support is not subject to the statute of limitations (Article 196 of the Civil Code), and children may still seek recovery of any unpaid amounts even after they reach adulthood.

7. Frequently Asked Questions

The divorce agreement doesn’t specify child support—can I still claim it?

Yes. The obligation to provide support is statutory; the absence of an agreement does not constitute a waiver. The parent with primary custody may bring suit in the child’s name, and the court shall determine the amount based on the child’s actual needs, the paying parent’s financial capacity, and the prevailing standard of living.

We agreed at the time that there would be no child support—can I go back on that now?

A verbal waiver generally does not prevail over a child’s rights; however, if an agreement in writing provides that one parent shall bear all expenses, and that parent subsequently experiences a significant decline in their financial circumstances or the child’s expenses increase substantially, the child may still request the other parent to make payments or increase the amount.

How is child support calculated—based on what percentage of the other party’s salary?

20% to 30% of the reference monthly total income with fixed income, and those who bear more than two children can be appropriately increased but generally not more than 50%; those without fixed income are determined by reference to the total income of the year or the average income of the same industry, and the court will adjust it according to the actual needs and the local living standard.

Can a child still claim unpaid child support after reaching adulthood?

Sure. The right to request child support is not subject to the statute of limitations; according to Article 17 of Interpretation (II), even after a child reaches adulthood and becomes self-supporting, the directly custodial parent may still request the other party to pay any outstanding amounts.

If the other party’s income is unstable, how is child support calculated?

If there is no fixed income, it shall be determined by referring to the total income of the current year or the average income of the same industry and combining with the property status; if the income is obviously untrue, it may apply to the court to obtain the tax payment record, social security payment base and bank flow, and if necessary, it shall be determined comprehensively according to the local actual living standard and children's needs.

8. Practical insights from a lawyer

Failing to agree on child support during a divorce, or the other party verbally stating that you are not required to pay, does not mean that this obligation has been waived. Maintenance is a legal obligation of the parents and is not waived because the divorce agreement is not written or verbally waived. In order to recover, the party who is directly dependent, as the legal representative, sues the party who is not directly dependent on the child in the name of the child and asks him to pay maintenance. Don’t rush to file a lawsuit—first, document the negotiation and collection process; text messages, WeChat records, and call logs can all serve as evidence of the other party’s default.

The amount is generally determined by the court based on the actual needs of the children, the affordability of the parents and the local living standard. Those with a fixed income are usually paid by 2% 30 of the total monthly income, and those with more than two children can be appropriately increased. If you want the claim to carry weight, you should sort out the child's actual expenditure documents, the income status of the other party, and your own burden, which directly determine the amount. If negotiation fails, proceed with litigation. Once the judgment or mediation agreement takes effect and the other party still fails to pay, promptly apply for compulsory enforcement and, if necessary, exert pressure through measures such as placing the party on a list of discredited entities.

Child support is a continuing claim; do not delay asserting it until several years have accumulated. On the one hand, the difficulty of providing evidence increases over time; on the other hand, the opposing party may also raise the defense that too much time has passed. If the other party refuses on the grounds that he said no, you don't have to be fooled by this sentence, but you still have to prepare evidence to show that the other party has not fulfilled it. More safely, the alimony is written into the agreement at the time of divorce, stating the amount, payment method and adjustment mechanism, so as to save the trouble of further disputes in the future. Written agreements are far more reliable than verbal commitments and serve as the foundation for any future claims.

Even if no child support was agreed upon at the time of divorce, it does not preclude the child from asserting their rights in accordance with the law at a later date—child support obligations are statutory duties, and the child is the rights holder.Suggestions to the direct dependents: even if alimony is not claimed for the time being during the divorce agreement, it is also suggested to specify the alimony arrangement in the divorce agreement or clearly reserve the rights claimed in the future, so as to avoid the difficulty of proving evidence afterwards; Keep the bills for children's living, education and medical expenses on a monthly basis and establish an expenditure ledger; Know the actual income of the other party through salary flow, tax payment records, social security payment base, etc. as the basis; if the other party refuses to pay and the negotiation is fruitless, it shall promptly sue in the name of the child and apply for enforcement, without worrying about the statute of limitations.