Insights

How to calculate the maintenance fee in Ningbo? Statutory standards and practical operation points

Ningbo Author：LuXu WANG

The raising of 1. issues

advice for handling a alimony dispute last month.

The party concerned is a single mother. At the time of divorce, the agreement agreed that the ex-husband should pay 2000 yuan alimony every month.

This paper will focus on the above issues, from the legal provisions, practical operation, typical cases of three dimensions of the system.

The legal standard of 2. maintenance.

Article 1085 of the Civil Code stipulates that if, after divorce, a child is 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 length of the period shall be agreed upon by both parties; if the agreement fails, the people's court shall make a judgment.

With regard to the specific amount, article 49 of the (I) of Judicial Interpretation of the Marriage and Family Code of the Civil Code gives the standard of reference:

  • if there is a fixed income, maintenance can generally be based on its total monthly income. 20% to 30% the proportional benefit;
  • for those who bear more than two child support, the proportion may be appropriately increased, but generally it shall not exceed the total monthly income. 50%;
  • if there is no fixed income, the amount of maintenance 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.

Here need to pay attention to a few details:

range of "Total Monthly Income": Includes not only basic salary, but also recurring income such as bonuses, allowances and subsidies. In practice, if one party deliberately conceals income, the other party can apply to the court to obtain the other party's bank flow, tax records, social security payment base, etc., as the basis for determining the actual income.

"20%-30%" is not a rigid standard: The judicial interpretation uses "can" instead of "should". The court will make a comprehensive judgment based on the actual needs of the children, the affordability of both parents and the actual living standards of the local area. In Ningbo, considering the cost of living, the amount of alimony determined by the court usually refers to this proportion, but it will not be applied mechanically.

What does 3. support include?

According to the judicial interpretation, alimony includes children's living expenses, education expenses, medical expenses, etc.. However, the "education fee" here usually refers to the regular expenses of compulsory education, excluding private school tuition fees, high interest class fees, etc. If a large amount of education expenditure or medical expenditure is actually incurred, it can be claimed separately.

Practical Tip: If you are worried that the other party will not recognize the additional expenses in the future, it is recommended to clearly agree in the divorce agreement: in addition to fixed maintenance, large education and medical expenses shall be shared by both parties in proportion, and set a "large" threshold (e. g. a single more than 20

00yuan).

Can 4. maintenance be increased or decreased?

The answer is yes, but you need to meet the legal conditions.

According to Article 58 of the (I) of Judicial Interpretation on Marriage and Family of the Civil Code, the people's court shall support the child's request for an increase in alimony from the father or mother who can afford it under any of the following circumstances:

  1. the original amount of alimony is insufficient to maintain the actual local living standard;
  2. due to the fact that women are sick and go to school, their actual needs have exceeded the original amount;
  3. there are other legitimate reasons should be added.

In judicial practice in Ningbo, common cases of increasing alimony include:

  • children are promoted from kindergarten to primary school, junior high school and Senior high school school, and education expenditure has increased significantly
  • child's sudden illness or diagnosis of chronic illness, medical costs exceed expectations
  • the income of the direct dependant has fallen sharply and cannot afford it alone.
  • The price level has risen significantly, and the original amount is obviously insufficient.

With regard to the reduction of alimony: the payer may also request a reduction in alimony if there is a significant decline in income due to unemployment, major illness, etc. However, sufficient evidence is required, and the court will usually require that the original standard be maintained unless it is truly unaffordable.

Method and duration of payment of 5. maintenance

payment method: You can pay monthly, quarterly or annually, or you can pay in one lump sum. One-time payments are usually applied where the payer has stable assets and both parties agree. Monthly payments are the most common method, and it is recommended to keep payment records by bank transfer and note "maintenance.

Payment period: generally until the child is 18 years old. There are two exceptions:

  • if a child has reached the age of 16 but not the age of 18, uses his labor income as the main source of income, and can maintain the local general living standard, the parents can stop paying maintenance;
  • although the children have reached adulthood, but are still in school to receive Senior high school education or below, or lose or partially lose the ability to work and other non-subjective reasons can not maintain a normal life, parents should still bear the necessary support.

What 6. the other party doesn't pay alimony?

If the other party defaults or refuses to pay alimony, there are two paths to relief:

path 1: The case of an agreed divorce.

If the amount of alimony is agreed in the divorce agreement, you can sue the court directly and ask the other party to fulfill the agreement. After receiving the effective judgment, if the other party still does not pay, you can apply for enforcement.

Path 2: The case of divorce proceedings.

If the amount of maintenance is determined by a court decision, you can apply directly for enforcement without having to sue again.

Enforcement measures: The court can freeze the other party's bank account, seize real estate vehicles, restrict high consumption, and judicial detention if the circumstances are serious.

7. practical recommendations

when signing the divorce agreement:

  • the amount of alimony should not be set too low, and space should be reserved for the growth of children.
  • Clearly agreed maintenance adjustment mechanism (e. g. annual adjustment based on price index)
  • agreement on the sharing of large expenditures
  • agreement on the method and time of payment, and clarify the liability for breach of contract for late payment.

When an increase in maintenance is requested:

  • negotiate with the other party first, and then prosecute if the negotiation fails.
  • Prepare the child's tuition, medical expenses and living expenses.
  • Collect evidence of income growth (e. g., bank records, tax records)

the above is a review of alimony calculations and practical operations. The alimony case seems simple, but it involves many specific issues, and the handling strategies will be different in different cases.

Summary of relevant 8. laws and regulations

the main legal provisions covered in this paper include:

  • article 58 of the (I) of Judicial Interpretation of the Marriage and Family Code of the Civil Code
  • article 1085 of the Civil Code
  • article 49 of the (I) of Judicial Interpretation of the Marriage and Family Code of the Civil Code

9. Practical Operation List

if you are facing related problems, it is recommended to follow the following steps:

  1. collect evidence: organize all written materials, transfer records, chat records, etc. related to the case;
  2. consult a professional: before taking any action, it is recommended to consult a professional lawyer to understand their rights and possible legal consequences;
  3. assessing costs and benefits: litigation requires time and economic costs, which need to be combined with the amount of the case and the probability of winning the case;
  4. choice of dispute resolution: give priority to negotiation or mediation, and consider litigation if no agreement can be reached;
  5. note the statute of limitations: the law does not protect the person lying on the right to sleep, be sure to claim the right within the statutory statute of limitations.

Practical Experience of 10. Lawyers

there is no fixed national figure for maintenance, which is determined by a combination of three factors: the actual needs of the child, the affordability of both parents, and the actual local standard of living. If there is a fixed income, it is usually paid at 2% 30 of the total monthly income, and the burden of more than two children can be appropriately increased but generally not more than half. Therefore, before negotiating or suing, first calculate an account of the actual expenses of the child's life, education, medical care, etc., and then compare the income of the other party to come up with an expressible proposition, which is more confident than asking for a casual price.

The dispute over the amount is essentially a dispute over evidence. The claiming party shall prepare the child's expense bill and the other party's income and property clues. Fixed income with wage flow, tax or social security records to support, self-employment and cash income more, often need to find a fulcrum from the bank flow, business traces. Payment methods, regular payment is the most common, one-time payment requires the other party to have the actual ability to pay and pay attention to the risk, the period is generally until the child can live independently.

The alimony is not a final word. If the child's illness, further education, rising prices, etc. cause the need to increase, or the payer is unable to afford it due to changes in the situation, you can request an adjustment. If the other party does not pay on time, don't just push on the lips, step by step from the confirmation of the prosecution to the application for enforcement, and if necessary, use measures such as the list of dishonesty to exert pressure. In order to avoid detours, the amount, payment method, term and adjustment mechanism are written into the agreement at the time of divorce, so that every claim in the future can be based on. The adjustment request also depends on evidence. Don't expect a situation to change.