What if the other party in Ningbo does not pay alimony?

After divorce, one party does not pay the maintenance fee on time, and the party who directly raises the child is often angry and helpless: some people worry that there is no way to enforce the agreed divorce without the court's judgment; others don't know what procedure to follow. The conclusion first said: alimony is a legal obligation, not exempted by divorce-divorce by agreement, the other party does not perform the need to first in the name of the children to sue to confirm the amount of alimony, the judgment can be applied for enforcement after the entry into force of the divorce, can be directly based on the effective judgment, mediation application for enforcement. This paper combines the civil code, civil procedure law and Ningbo family trial practice to give a complete path.

1. Legal Basis: The Source of the Obligation and the Enforcement Ground for Child Support

The first paragraph of Article 1085 of the Civil Code stipulates: "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 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 statutory nature of the maintenance obligation means that, first, it is not extinguished by means of divorce (agreement or litigation).

The enforcement level is based on the Civil Procedure Law: According to Article 243 of the current Civil Procedure Law, the parties must perform the legally effective civil judgments and rulings. If one party refuses to perform, the other party can apply to the people's court for enforcement; the period of application for enforcement is two years (Article 246), which is calculated from the last day of the performance period stipulated in the legal documents. In view of the special enforcement of the obligation of raising children, the (I) interpretation of the Marriage and Family of the Supreme people's Court provides for compulsory measures against parties who refuse to perform or hinder others from performing the obligations of raising children in effective judgments, rulings and mediation documents -- the people's court may take compulsory measures such as fines and detention in accordance with the law to protect the rights and interests of minor children. It should be noted that the serial number of the amended provisions of the Civil Procedure Law on January 1, 2022 shall be adjusted, and the current text shall prevail when involved.

2. the two recourse paths corresponding to the two ways of divorce

Divorce by Agreement: The divorce agreement is mutually agreementand has no enforcement power. If the other party fails to pay the maintenance according to the agreement, the direct maintenance party cannot directly apply to the court for enforcement with the agreement, but must take the child as the plaintiff (the direct maintenance party is the legal representative) to file a lawsuit against the court for the maintenance dispute, and request the other party to order the other party to pay according to the agreement standard; if it still fails to perform after obtaining the effective judgment, it shall apply for enforcement. It is also possible to directly request the court to determine the amount of alimony in accordance with the law without going through the standard of agreement-either way of request, with the former relying on the agreement and simple proof, while the latter is determined by the court in conjunction with legal factors.

Divorce by Lawsuit: If the amount, payment period and time limit of alimony have been specified in the court's judgment and mediation statement, the document shall be enforceable. If the other party fails to pay when due, the direct dependency may apply directly to the court for enforcement with the legal instrument in force, without having to sue again. In practice, there is another type of situation: if the alimony is not processed at the time of divorce proceedings or only part of the period is processed, it is still necessary to sue for confirmation of the uncovered part.

The plaintiffs in alimony disputes should be minor children or adult children who cannot live independently, and the direct dependents should participate in the litigation as legal representatives; when suing, they should also claim the arrears (including the debt interest during the delayed performance period) and the future monthly alimony, which can solve the "old account" and "new account" as a package ".

3. How is the amount of child support calculated: statutory standards and Ningbo practice

Article 1085, paragraph 2, of the Civil Code provides that the amount of child support may be determined based on the actual needs of the child, the financial capacity of both parents, and the local standard of living. Article 49 of the Interpretation (I) on Marriage and Family of the Supreme People's Court is detailed: if there is a fixed income, alimony can generally be paid according to the proportion of 20% to 30 of the total monthly income; If you bear more than two child support, the proportion can be appropriately increased, but generally it shall not exceed 50% of the total monthly income. If there is no fixed income, it can be determined according to the total income of the year or the average income of the same industry with reference to the above proportion, the above ratio may be appropriately increased or decreased. Article 50 provides that child support shall be paid periodically, and may be paid in a lump sum if conditions permit.

Based on local judgments in Ningbo, courts typically determine child support by taking into account the local standard of living, the actual needs of the child, and the financial capacity of the parents. According to the public judgment of Ningbo Court, Ningbo Jiangbei Court ruled in the divorce dispute between Chang and Meng that the legitimate children should be raised by the plaintiff and the defendant should pay 1000 yuan per month. In the divorce dispute between Li mou and Zhu mou, both parties agreed to pay monthly maintenance from 1000 yuan to the age of 18 from the month after the defendant finishes serving his sentence-the amount of the case shall be subject to the actual judgment, but it can be seen that Ningbo court respects both parties' agreement, the agreement that is obviously low and cannot guarantee the basic livelihood of the children will also be adjusted in accordance with the law. In the case that one party does not have income (such as serving a sentence), it will be counted from the point of performance.

4. Checklist of actionable steps

1. Keep communication records: urge the other party to pay through WeChat, SMS and other ways, save chat records and received transfer vouchers, and lock the "unpaid" facts.
2. Send a written reminder: specify the amount of reminder, the payment period and the legal consequences (sue and claim interest after the deadline), and retain the service evidence.
3. Prepare prosecution materials: divorce agreement or judgment, birth certificate of children, evidence of the other party's failure to pay, and vouchers for children's living and education expenses (tuition, medical bills, etc.).
4. sue to the court or apply for enforcement: in case of divorce by agreement, sue in the name of the children for payment; in case of divorce by lawsuit, apply for enforcement directly. All primary-level people’s courts in Ningbo are authorized to handle child support disputes, and family cases generally first undergo pre-litigation mediation.
5. Provide property clues: provide clues to the court such as the bank account, real estate, vehicle, work unit and income of the other party, so as to facilitate the execution of investigation and control.
6. Remedies for failing to execute: if the other party has no property to execute, the court may rule to terminate this execution procedure; after finding the property clues, the court may apply to resume execution at any time, and continue to take measures such as restricting high consumption and being included in the dishonest list.

Analysis of Common Misunderstandings of 5.

1. Misunderstanding 1: Agreement divorce can be directly applied for enforcement. positive solution: the divorce agreement itself has no enforceable power, and the effective judgment must be obtained before applying for execution; the judgment and mediation statement of the lawsuit divorce can be directly executed.
2. Misunderstanding 2: It can only be claimed according to the amount agreed in the divorce agreement, and the amount written in the agreement is the amount. Positive explanation: if the price rises, the actual needs of the children increase, and the economic situation of the direct dependant changes, the children can claim to increase the maintenance according to law (Article 58 of Interpretation 1); If the agreement stipulates that one party does not pay the maintenance fee and the economic ability of the direct dependant is sufficient to ensure the life of the children, the court generally respects the agreement, but the children can still claim it when necessary.
3. Misunderstanding 3: If the other party has no money, it will be no use chasing after it. Positive explanation: even if the other party has no property temporarily, he should apply for execution and promote to restrict high consumption and include it in the list of dishonest, so as to avoid the debt from ending; after finding the property clues, he should apply for resuming execution at any time, and the rights within the execution time limit will not be eliminated.
4. Misunderstanding 4: The maintenance fee will automatically end when the child is 18 years old, and you don't have to worry about it when you are an adult. Positive explanation: adult children who cannot live independently (such as receiving Senior high school education or below in school, losing or not completely losing the ability to work, etc.) can still claim maintenance; the right of children to recover the previous arrears of maintenance after they reach adulthood is also protected by law.

Change of 6. maintenance fee: both increase and decrease shall be subject to law

Child support is not a "final word". Article 58 of the (I) on the interpretation of marriage and family stipulates that if a child requests an affordable father or mother to increase the maintenance fee under any of the following circumstances, the people's court shall support it: the original amount of maintenance fee is not sufficient to maintain the actual living standard of the local area; the actual needs of the woman have exceeded the original amount due to her illness and schooling; it should be increased for other legitimate reasons. In practice, rising education costs, increased medical expenditures, and a sharp drop in the income of the direct dependant while the other party's income is substantial are common reasons for advocating increased support. On the other hand, if the payer's economic situation deteriorates significantly, his income drops significantly or he loses his ability to work, he may also request a reduction in the maintenance fee, but he must prove that the court will strictly grasp that the primary function of the maintenance fee is to protect the interests of the children, and the payer cannot reduce the payment at will on the grounds of "remarried baby" and "buying a house.

The change procedure is the same as the recourse procedure: the divorce by agreement shall be sued first to confirm the change, and the divorce by litigation can be executed according to the effective document or sued separately for the change. It should be reminded that changes and recourse can be combined to claim: both to request payment according to the new standard and to recover the difference previously owed. For the direct dependents, the retention of the actual expenditure vouchers such as tuition fees, medical expenses and interest classes is not only evidence to advocate the increase of alimony, but also materials to prove that the maintenance obligations have been fulfilled-the Ningbo court combines the local living standard with the actual needs of the children when deciding the alimony, the more complete the vouchers, the more justified the discretion.

Finally, clarify a group of relationships that are often confused: alimony and visitation right are two rights and obligations that are independent of each other and are sued by each other. The payer may not refuse to pay alimony on the grounds of "the other party does not allow visits"-the direct consequence of the refusal is to be pursued and enforced, and the direct dependant may not refuse to visit on the grounds of "the other party does not pay alimony"-the dispute over the right of visitation may be litigated separately, and if the visit is maliciously obstructed, the court may deal with it in accordance with the law. The two rights have their own relief channels. Bundling each other with "don't pay, don't show, don't pay" will only make both parties passive, and ultimately damage the interests of the children. The rational approach is to go through different procedures: recourse and enforcement of alimony, appeal or mediation of visitation rights, and liberate the growth of children from the game of parents.

I would like to remind you of two execution details: first, the maintenance fee should be transferred through the bank as far as possible and "maintenance fee" should be noted. It is difficult to leave traces or prove the whereabouts of cash payment, and it will be passive when it is pursued in the future; second, if the relationship of direct support is changed later, the originally owed maintenance fee can still be pursued from the original payer -- maintenance fee is the creditor's right of the children, which will not be eliminated due to the change, the change of dependency relationship and the recovery of arrears of maintenance can be divided in parallel.

7. Frequently Asked Questions

Can the other party directly apply for enforcement if the other party does not pay alimony after the agreement is divorced?

No. The divorce agreement is not enforceable, and it is necessary to sue in the name of the child to confirm the alimony, and then apply for enforcement after obtaining the effective judgment; in the case of divorce, the effective judgment or mediation statement can be directly applied for enforcement.

How much child support is typically awarded?

20% to 30% of the total monthly income with fixed income will be paid, and those with more than two children can be appropriately increased but generally not more than 50%; those with no fixed income will be determined by reference to the total income or the average income of the same industry. According to the actual needs of children, parents' affordability and local living standards, the amount of Ningbo case shall be subject to the judgment.

What if the other party transfers the property and does not enforce the judgment?

Apply to the court for compulsory execution. The court can freeze the allocated deposit, seal up the auction property, restrict the high consumption, include it in the list of untrustworthy persons subject to enforcement, and impose fines and detain those who refuse to perform; at the same time, provide clues to the other party's property, and those who find the transferred property can apply to the court for investigation and deal with it according to law.

Can a child still claim past child support payments after they have grown up?

Can. The maintenance owed is a definite claim, and adult children may claim it on their own, but it should be claimed within the statutory statute of limitations; the statute of limitations for applying for enforcement is two years, and care should be taken not to exceed the statute of limitations for enforcement.

What if the other party doesn't pay alimony and still plays missing and can't find anyone?

Does not affect the prosecution and execution: the prosecution can be served by public announcement, and the court can apply for execution after the judgment takes effect, and the court can find its bank deposits, network funds and vehicle real estate through the network inspection and control system; if the whereabouts are unknown, the execution can not be terminated first, and the execution can be resumed after the appearance or property clues, and continue to be included in the dishonest list and restrict high consumption. The dispute over alimony is not eliminated by the disappearance of the other party, and the key is to advance in accordance with the law.

8. Practical Insights from a Lawyer

If the other party doesn't pay the maintenance fee on time, what makes people most unwilling is the illusion that he can't do anything about it. In fact, alimony is a legal obligation and is not exempted from divorce, but the path of recourse depends on how it was originally divorced: if divorce is agreed, the divorce agreement itself cannot be directly enforced, and it is necessary to file a lawsuit in the name of the children, confirm the amount of alimony, and apply for enforcement after the judgment takes effect. In case of divorce, it can be enforced directly according to the effective judgment or mediation agreement. First distinguish which one you belong to, so as not to take the wrong road and waste time.

Before filing a lawsuit or applying for execution, prepare the amount and evidence. The amount of alimony has a statutory reference standard, and will also be measured in the light of the actual local living standard and the affordability of both parties. Therefore, it is necessary to sort out the income and property of the other party, as well as the actual expenses for the daily upbringing, education and medical care of the children, and to keep the previous payment records and reminders. If the amount is not determined, it may be claimed together at the time of prosecution; if a judgment has been made, the focus is on property clues and the income, accounts or other property available for enforcement is identified before enforcement can have a foothold.

During the enforcement phase, the law provides for coercive measures against a party who refuses to fulfill their child support obligations. Where the relevant conditions are met, one may apply for penalties such as fines or detention to exert pressure—these are all practical means of ensuring compliance.However, it is also necessary to avoid several pits: do not withhold people, things or cut off visits from the other party to force money, which in turn will easily lead to passivity. If the income or situation of the other party does change, the reduction or increase of alimony shall be changed according to law, and cannot be unilaterally stopped or increased. Negotiating the enforceable payment method and the consequences of default is more useful than repeated reminders.

The path of recourse for alimony is not complicated, and the core is to distinguish "the agreement has no execution and the judgment has execution": divorce by agreement is confirmed by prosecution first, and divorce by litigation is directly applied for execution. In the process of reminder, WeChat and SMS are used to leave traces and keep transfer vouchers. When suing, it is also claimed that the arrears and future monthly maintenance fees will be paid. When applying for execution, provide the other party's bank account, work unit, vehicle real estate and other property clues. If the other party does not have any property to execute, it can first terminate the execution procedure and apply for the resumption of execution at any time after discovering the property clues-the child's maintenance cannot be abandoned because the other party "relies on", and the law gives a complete chain of recourse.