Insights

Ningbo the other party refused to pay maintenance how to do.

Ningbo Author：LuXu WANG

After a divorce, if one parent refuses to pay child support, the parent with primary custody is not required to simply accept it: the law provides two clear avenues—under a divorce by agreement, a lawsuit can be filed in the child’s name to recover the arrears; in a divorce by litigation, an application for compulsory enforcement can be made directly. To conclude: Child support is a right of the child, not a private claim between the parents; in litigation, the child is the plaintiff, with the custodial parent acting as the legal representative. A divorce agreement does not have enforceable force and must be converted into an effective court judgment through litigation before it can be enforced. The other party’s claim of “having no money” is not a valid defense; the court may conduct ongoing inquiries into their bank deposits, wages, financial investments, equity interests, vehicles, and other assets, and resume enforcement proceedings as soon as any relevant leads are discovered.

1. legal basis and claim basis

Article 1085 of the the People's Republic of China Civil CodeIt stipulates: "If, after divorce, a child is directly raised by one party, the other party shall bear part or all of the maintenance expenses. The amount of the expenses 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 stipulated in the preceding paragraph shall not prevent the child from making a reasonable request to either of his or her parents for an amount exceeding the amount originally set by the agreement or judgment." This provision is broken down into three elements: first, the fact that, following divorce, the child is directly raised by one parent; second, the other parent has a legal obligation to bear all or part of the child support expenses; and third, the amount and duration are first determined by agreement between the parties, and if no agreement can be reached, they shall be decided by the court.

Article 1067 of the Civil CodeIt stipulates: "If parents fail to perform their duty of raising, minor children or adult children who cannot live independently have the right to require their parents to pay support." This provision clearly specifies the subject of the right: the right to claim child support belongs to the child. The so-called “adult children who cannot live independently,” according to Article 41 of the Supreme People's Court's Interpretation on the Application of the Marriage and Family Chapter of the Civil Code of the People's Republic of China (I), refers to adult children who are still enrolled in school receiving senior high school education or lower, or who have lost, or partially lost, their capacity for work and are therefore unable to maintain a normal life due to non-subjective reasons—such adult children may still claim child support, which constitutes an exception to the claim that “child support can only be claimed until the age of 18.”

The coverage of alimony is, in practice, three items: living expenses, education expenses and medical expenses. How the amount is determined is governed by Article 49 of Interpretation (I): it shall be based on the actual needs of the children, the financial capacity of both parents, and the local standard of living; for those with a fixed income, the payment is generally set at twenty to thirty percent of their monthly total income, and may be appropriately increased for those supporting two or more children, but should not usually exceed fifty percent of the monthly total income; for those without a fixed income, the amount may be determined based on the total annual income or the average income of the same industry, referring to the aforementioned percentages; in special circumstances, the amount may be appropriately increased or decreased. Article 50 of the (I) of interpretation makes it clear that alimony should be paid regularly, and if conditions permit, it can be paid in one lump sum-if the other party has the ability to pay in one lump sum and agrees, it can strive for a one-time settlement to avoid long-term recovery.

2. Two Ways of Recovery: Prosecution and Enforcement

Path 1: If the divorce is agreed, the lawsuit shall be filed before execution.The divorce agreement shall take effect after it is signed by both parties and filed with the marriage registration authority. It is binding on both parties, but it is not enforceable. If the other party fails to pay child support as agreed, you cannot directly apply for enforcement. Instead, the child must be the plaintiff, with the custodial parent acting as the legal representative, and file a lawsuit regarding the child support dispute with the competent court. Only after obtaining a final judgment or mediation agreement, and if the other party still fails to comply, may the enforcement procedure be initiated.

Path 2: If the lawsuit is divorced, apply directly for enforcement.If the amount of maintenance and the period of payment have been stated in the court's judgment or conciliation, the instrument itself is the basis for enforcement. If the other party fails to make payment by the due date, the custodial parent may, in the child’s name, submit the effective court document to the court of first instance (or to the court at the location of the property subject to enforcement) and apply for compulsory enforcement, without the need to file a separate lawsuit.

A third common scenario: marital separation may also be claimed.The husband and wife have not yet divorced but have separated, and if one party does not fulfill the obligation to raise the children, the children can also claim the maintenance fee during the separation period, not on the premise of divorce-this is often ignored, and in practice the court is calculated according to the starting point of separation and the number of months payable by the other party.

Objects and measures of enforcement: Article 249 of the Civil Procedure Law stipulates that if the person subject to enforcement fails to perform the obligations specified in the legal document in accordance with the enforcement notice, the people's court has the right to inquire about the deposits, bonds, stocks, fund shares and other property of the person subject to enforcement, and has the right to seize, freeze, transfer or change the property of the person subject to enforcement according to different circumstances. Deciding to take the above measures should make a ruling and issue a notice of assistance in enforcement notice, the relevant units must be handled. The measures that the court may take in the case of an executor who refuses to pay maintenance include:

  1. Inquire, freeze and allocate bank deposits, withhold and withdraw wages and other income through the network inspection and control system (the necessary living expenses of the person subject to execution and his dependent family members shall be retained in accordance with the law when detained);
  2. Sealing up and auctioning off the real estate and vehicles under the name of the person being executed, and freezing the equity, securities accounts and wealth management products held by him;
  3. Include in the list of untrustworthy persons subject to enforcement, take measures to restrict high-consumption, restrict flying high-speed rail, stay in star hotels, and children attend high-fee private schools;
  4. Those who refuse to report their property or refuse to perform may be fined or detained; if the circumstances are serious, they may constitute the crime of refusing to execute the judgment or ruling (Article 313 of the Criminal Law) and face criminal accountability.

If there is no property under the name of the other party, the court may decide to terminate the execution procedure-but this is only a procedural suspension and does not extinguish the claim. Upon discovering new leads regarding the debtor’s assets—such as a new employer, new bank accounts, year-end bonuses, or inherited property—the rights holder may at any time apply to resume enforcement proceedings, and the court’s obligation to investigate and monitor remains in effect.

Adjustment of 3. amount and duration

The maintenance fee is not "fixed for life". Explanation of "(I)" Article 49, paragraph 3, "special circumstances" in practice supports both increases and decreases:

  1. Increase: If the child goes to school, falls ill, prices rise, or the income of the direct dependant drops sharply, and the original amount is obviously insufficient, the child may sue separately for an increase (the second paragraph of Article 1085 of the Civil Code is for this purpose);
  2. Decrease: If the payer's income drops significantly due to unemployment, serious illness, disability, etc., or if the burden is increased due to remarriage and rebirth, the payer may sue for an appropriate reduction;
  3. Time limit: in principle, it shall be paid until the child is 18 years old; those who are still receiving Senior high school education or below or cannot live independently after the age of 18 shall continue to bear the burden.

4. Material List and Procedure Points

Before prosecution or application for enforcement, it is recommended to fix the materials according to the following list:

  1. Identity and relationship materials: birth certificate of children, photocopies of ID cards of both parties, divorce certificate or effective judgment document;
  2. Proof of non-payment facts: bank transfer flow, WeChat/Alipay transfer record, collection chat record, written reminder letter and delivery voucher;
  3. Amount basis materials: the other party's salary income certificate (salary flow, personal tax record, labor contract), the previous agreement between the two parties on alimony;
  4. Expenditure vouchers: children's tuition fees, training fees, medical bills, used to prove the actual needs and claim to increase the reasonableness;
  5. Property clues: the other party's bank account, work unit, real estate vehicle information-the more specific the application execution phase, the faster the investigation and control.

Procedural attention should be paid to four points: First, the jurisdiction of alimony disputes applies to "the plaintiff versus the defendant", which is generally under the jurisdiction of the court of the defendant's domicile, and the court of the defendant's domicile is under the jurisdiction of the court of the habitual residence if the defendant's domicile is inconsistent with the habitual residence; Second, the statute of limitations does not apply to requests for alimony (Article 196, Item 2 of the Civil Code), family cases usually enter pre-litigation mediation first, and the mediation fails before the case is filed for trial; fourth, the period for applying for enforcement after the judgment becomes effective is two years, counting from the last day of the performance period stipulated in the legal document, without delay.

Review and Response of 5. Refusal to Pay Defense

In litigation and enforcement, there are five main types of defenses commonly used by the payer, and the court's review is as follows, and the direct dependant can anticipate and respond accordingly:

  1. "I have privately given cash": if a large cash payment lacks a transfer voucher, the court requires the payer to prove the fact of receipt. The custodial parent should insist on bank transfers and clearly mark the payment as “child support” to prevent cash-related disputes from arising in the first place.
  2. "Debt in rem has been offset": the payment of maintenance in rem must be clearly agreed and actually performed by both parties, and the offset arrangement must not be detrimental to the interests of the child (e. g., devaluing assets against high-priced debts); claims of debt relief without a written agreement are usually not supported;
  3. "The other party won't let me see the children, so I won't pay": Visiting rights and maintenance are independent of each other and cannot be refused on the grounds that visiting is blocked, and the correct approach is to sue separately to claim visiting rights;
  4. "Unemployed, jailed, sick and unable to pay": Financial difficulties can only be used as the reason for applying for adjustment of the amount, which must be changed by litigation and cannot be stopped on its own. Prisoners may claim a discretionary reduction during their sentences and resume payment from the month following the completion of their sentences, but the arrears still need to be paid off;
  5. "A one-time buyout": a one-time settlement of alimony must be clearly agreed in writing and actually fulfilled.

In addition, it is suggested that if the maintenance determined by the judgment is overdue, the execution will result in the double interest on the debt during the delay in performance (calculated at 1.75 per 10,000 per day), and the longer the arrears, the higher the cost-the claim should be included, which is also the realistic pressure that urges the payer to take the initiative to perform.

6. Frequently Asked Questions

The divorce agreement has written alimony, but the other party does not give it. Can you directly apply to the court for enforcement?

Cannot. A divorce agreement does not have enforceable force and must first be pursued through litigation: the child(ren) shall be the plaintiff, with the direct custodial parent acting as the legal representative, to file a lawsuit. Only after obtaining a final judgment or mediation statement can enforcement proceedings be initiated. Legal documents obtained through divorce litigation may be directly used as the basis for enforcement.

The other party said that if they had no money, would they not get alimony?

No. The court may, through the online property inquiry system, examine the judgment debtor’s bank deposits, wages, financial investments, vehicles, real estate, and other assets, and take measures such as freezing accounts, transferring funds, imposing consumption restrictions, and adding the debtor to the list of discredited persons. If no assets are found, the current enforcement proceedings may be terminated; however, once the rights holder discovers new leads, they may at any time apply to resume enforcement. Prolonged failure to pay will also result in the accumulation of interest and default damages.

He won't let me watch the kids, can I not pay child support?

Cannot. The right of visitation and child support are two distinct legal relationships and do not offset each other. Failure to pay child support constitutes a breach of contract or a violation of the law. If the other party obstructs visitation, the aggrieved party may file a separate lawsuit to enforce the right of access or apply for compulsory enforcement of the visitation arrangement; however, the refusal to pay child support cannot be justified by foregoing visitation rights.

Can the child still pay for child support when he is 18?

Sure. Adult children who are still enrolled in Senior high school or lower-level education, or who have lost or partially lost their ability to work and are therefore unable to maintain a normal life due to non-subjective reasons, still have the right to claim child support. The legal basis for this is Article 1067 of the Civil Code and Interpretation (I), Article 41.

Can I get a portion of alimony first after prosecution? Are the litigation costs of alimony disputes high?

You can apply for first execution. According to the Civil Procedure Law, in cases involving claims for child support, alimony, or maintenance, a party may apply to the court for provisional execution prior to judgment. The court may then order the opposing party to make an initial payment of a portion of the amount to address urgent needs during the litigation. When making such an application, the party must explain the urgency (e.g., immediate need for children’s tuition or medical expenses) and provide supporting evidence. Child support disputes are classified as family law cases. Court fees are assessed on a per-case basis and are relatively low; parties who meet the eligibility criteria for financial hardship may apply for a waiver or installment payment of the fees. If the amount claimed in the lawsuit is substantial, the fees will be calculated according to the standards applicable to property-related cases. Compared with the amount of long‑overdue child support, litigation costs are usually manageable and should not be a reason to forgo pursuing one’s legal rights.

7. Practical Insights from a Lawyer

If the other party does not pay alimony, the most important thing is to distinguish what you are holding first. If the divorce was finalized by court judgment or mediation, you can directly apply to the court for enforcement based on the effective document. The court may then investigate and freeze the other party’s bank deposits, wages, financial investments, vehicles, and equity interests, and resume enforcement proceedings once any relevant leads are discovered. If the divorce was by mutual agreement, that agreement does not have enforceable force; you must first file a lawsuit in the child’s name to convert the terms of the agreement into an enforceable judgment before initiating enforcement proceedings. If you don’t get this step right, you’ll often end up wasting several months.

When suing, remember that the plaintiff is a child, not directly raised you, and you participate as a legal representative. The claim must be stated in specific terms: the monthly amount, the starting date, the end date of payments, and any reasonable portion exceeding the originally agreed amount may also be asserted. The other party’s excuse of “having no money” won’t hold up; the key during the enforcement phase is continuous asset tracing and reporting of leads—whether they’ve changed jobs, bought a car, or opened a business, all can be submitted as potential property clues. In the case of a divorce by mutual agreement, do not focus solely on the divorce agreement itself when seeking to enforce your rights.

At the level of talk, don't be intimidated by "not going to be available anyway. You could start by clarifying the other party’s sources of income and financial situation. During negotiations, propose mutually beneficial terms such as “you make payments on time, and I’ll cooperate with visitation arrangements,” which can help minimize future disputes for both sides. If the other party consistently defaults on payments, take decisive enforcement action instead of repeatedly pursuing payment verbally. Don’t shy away from the hassle—filing a case and initiating asset inquiries early is far more effective than making annual visits to collect the debt. The amount can be adjusted again as the child’s needs and the cost of living change; all of this can be discussed and negotiated step by step.

The winner or loser of the recovery of alimony lies in two points: first, the main line of "children are the right holders" is to sue in the name of children and be represented by the direct dependents, and the scope of claim covers both the arrears and the future monthly payment. Second, evidence and execution go hand in hand-fixed agreements, transfer, collection records and expenditure vouchers before prosecution, and timely application for execution after judgment and continuous provision of property clues. With regard to payment, child support is a legal obligation; excuses such as “I have no money,” “you’re not allowed to see the child,” or “my new marriage imposes a heavy financial burden” are generally not valid. It is advisable to proactively negotiate and adjust the amount to avoid restrictions on high‑value transactions, being listed as untrustworthy, and even facing criminal liability.