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Can Ningbo sue for not paying alimony during marriage?

Ningbo Author：LuXu WANG

Before the divorce, the other party does not raise children and does not pay alimony, can you sue him? Many people think that "you can't ask for alimony without divorce", but in fact, you can also claim it within marriage, which is called alimony within marriage.

1. the concept of marital maintenance

marital support fee refers to the life education and medical expenses claimed by the minor children or children who cannot live independently when the husband and wife have not dissolved the marriage relationship but one party fails to fulfill the obligation of raising. It breaks the misunderstanding that "you can't have it without divorce.

The subject of rights is the children

the request for maintenance within marriage is generally made by the party directly raising the child in the name of the child, the subject of the right is the child himself, and the parents are the legal representatives. The focus is on "whether the obligated party has fulfilled its duty of maintenance".

2. legal basis

the judicial interpretation of the Marriage and Family Compilation is (I) clear. During the existence of the marriage relationship, if both or one of the parents refuses to perform the obligation to raise their children, and children who are minors or cannot live independently request payment of support, the people's court shall support it.

No divorce can be filed

as long as the refusal to perform the maintenance obligation is met, the claim for marital maintenance can be sued without prior divorce. This is important to protect the interests of children during marriage.

3. what circumstances can be claimed

it is common for one party to leave home, cut off economic ties, hide his income from his family, or be unable to support him due to gambling and drug abuse. The core is that the party has the ability to afford but refuses to fulfill its maintenance obligations.

1. Short-term turnover does not count

short-term inability to pay due to temporary unemployment and sudden difficulties is different from malicious refusal to perform. The court will look at whether it refuses for a long time and subjectively, rather than determining it once it is not given.

2. The demarcation between refusal to pay and temporary difficulties

long-term non-return from home, having income but deliberately hiding it, making it clear that it is no longer a burden, and transferring income to someone else's account are non-performance, which the court usually supports. If there is no income for a short period of time due to objective reasons such as unemployment, serious illness, serving a sentence, etc., it is generally determined that it is difficult to perform, and the court may not award or significantly reduce it, but it will not affect the future improvement of conditions.

How 4. Produce and Claims

the claiming party shall prove: the actual needs of the child, the income or affordability of the obligated party, its long-term non-payment or refusal to pay. Bank running water, chat records, witness testimony, unit income certificate, etc. can be used.

Two types of evidence to determine the amount of payment

one is the evidence that the child actually needs: receipts for tuition and custody fees, medical bills, and a list of daily living expenses, preferably on a monthly basis with a voucher number. The other category is evidence of the other party's affordability: salary flow, tax payment record, social security payment base, operating account entry, vehicle and real estate information under the name. The former determines the lower limit, the latter determines the upper limit, and the absence of one side will leave the amount in the passive range.

Three Operational Points of 5. Marital Maintenance Litigation

first, the plaintiff is a child and not a spouse. The minor child is the plaintiff, and the party directly under his care acts as the legal representative on behalf of the lawsuit. The complaint and authorization materials should be clearly written according to this identity, so that the lawsuit for payment between husband and wife is easy to be required to be corrected at the filing stage. When filing a case online in Ningbo through Zhejiang Court Network or "Mobile Micro Court", the plaintiff should also be filled in as a child and legal representative as a direct supporter, otherwise the filing review process will require correction.

Second, the request should be divided into two paragraphs: the part of the arrears that has occurred before the prosecution shall be claimed according to the actual expenditure; The part after the prosecution shall be paid on a monthly basis according to 20% to 30% of the monthly income. Third, do not confuse alimony with emotional issues. The focus of the trial should always be on the actual needs of the children and the affordability of the other party. The more specific these two items are, the closer the judgment amount is expected.

6. case proof

in practice, the husband did not return home for more than one year, and the operating account under his name showed that the average monthly income was more than 30000 yuan but he did not pay any money to the family. The wife filed a lawsuit for marital alimony in the name of her children. The court ordered her to pay alimony on a monthly basis at 25% of her monthly income in combination with the bank's running water, and made a payment judgment on the arrears in the

12months before the lawsuit.

In practice, if one party fails to pay alimony due to a sudden serious illness for 4 months in hospital and has no labor income during the period, the court finds that it is an objective performance that cannot, but does not refuse to perform, and fails to support the marital alimony request. At the same time, after explaining that it has recovered its income ability, the children can make another claim, and the necessary medical and educational expenses incurred can be settled together in the future.

7. Risk Alert

  • mistake that you can't ask for alimony without divorce.
  • There's no way to prove the other can afford it.
  • Take short-term difficulties as malicious refusal to pay.
  • No records of income and communications are maintained.
  • Claim in their own name and not in the name of their children.

8. FAQ

can I ask for alimony without divorce?

Can. If one party refuses to perform the duty of maintenance, the child may claim maintenance within marriage without first divorcing.

Who will be the plaintiff?

The subject of the right is the child, who is sued in the name of the child by the direct dependant as the legal representative.

Does the other party have no money for the time being?

Short-term objective difficulties are not malicious refusal to pay, the court to see whether the long-term, subjective refusal.

To prove what?

The actual needs of the child, the affordability of the other party, long-term non-payment or refusal to pay.

Can you sue for alimony without divorce?

You can. During the existence of the marriage relationship, minor children have the right to claim maintenance from the father or mother who fails to perform the duty of maintenance, and the other party shall act as legal representative to sue on behalf of the other party. Such cases do not presuppose divorce and do not automatically enter into divorce proceedings as a result.

How much can you generally pay for marital support?

Usually refer to 20% to 30% of the monthly total income of the payer, and those who bear more than two children can rise but generally not more than 50%. If the income of the other party is difficult to ascertain, the court will determine it by reference to the per capita consumption expenditure of the local residents in the previous year or the average wage of the industry, so it is important to obtain the flow and tax payment records in advance.

Practical Experience of 9. Lawyers

before the divorce, the other party will not raise children or pay for it. Can you sue him? The answer is yes. During the existence of the marriage relationship, if one party refuses to perform the obligation of support, minor children or children who cannot live independently can request the payment of support. Such requests are usually called marital support, which breaks the misunderstanding that no divorce can be claimed. Attention should be paid to the subject problem: the request is generally made by the party directly raising the child in the name of the child, the subject of the right is the child himself, and the parents are the legal representatives. Only when the direction is right can the procedure go smoothly.

To claim, it is necessary to prove that the other party did not fulfill the responsibility of raising. Evidence can be prepared around two aspects: one is the actual needs of the child, such as daily expenses for life, education, and medical care; the other is the fact that the other party has the ability but refuses to pay, such as his income status, the record of communication between the two parties on alimony, and the details of expenses that have not been borne for a long time. The focus is on whether the obligated party has fulfilled its due responsibility for upbringing, so presenting these facts in a clear manner can support the claim more than simply stating emotional conflicts, and it is easier to facilitate mediation or judgment.

There are several key points worth paying attention to in operation: make a request in the name of the child and specify the amount and starting and ending time required to be paid; Evidence should be accumulated as much as possible at ordinary times, and should not be collected temporarily until prosecution is brought. We should also consider the connection with the maintenance fee after divorce in the future to avoid repeated claims or gaps before and after. At the same time, it is necessary to manage emotions and strategies. Marital support litigation is often intertwined with divorce disputes, and excessive intensification of conflicts may affect subsequent negotiations. Taking it as an opportunity to clarify the boundaries of rights and obligations not only solves the immediate needs, but also lays the foundation for future arrangements.