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Can alimony be adjusted in Ningbo divorce agreement? 3 Situation

Ningbo Author：LuXu WANG

The alimony written in the divorce agreement often becomes insufficient as the child grows up, prices rise, and one party's income changes. However, alimony cannot be changed if one wants to. It is protected by the binding force of the agreement and allows reasonable adjustment in the event of major changes. The key is to prove that the original amount has clearly failed to meet the actual needs of the child, or that there has been a significant change in the financial situation of the payer.

The legal binding force of the 1. maintenance agreement.

The maintenance clause in the divorce agreement is the true intention of both parties and is legally binding on both parties. Article 1085 of the Civil Code stipulates that if a child is directly raised by one party after divorce, the other party shall bear part or all of the maintenance; the amount of the cost and the length of the period shall be agreed upon by both parties; if the agreement fails, The people's court shall decide. Once the agreement enters into force, both parties shall perform it and shall not go back on their words at will.

1. The agreement does not mean that it cannot be changed.

Although the agreement is binding, the essence of alimony is to protect the rights and interests of children, rather than to fix the rights and obligations of both parties. When the actual needs of children, the affordability of parents or the local living standards change significantly, the amount of the original agreement can be adjusted according to law. This is the embodiment of the principle of change of circumstances and the principle of maximizing the interests of children in the field of alimony.

2. Legal basis for adjustment

according to the Civil Code and relevant judicial interpretations, an agreement or judgment on child support does not prevent the child from making a reasonable request to either parent, if necessary, for more than the amount originally set by the agreement or judgment. At the same time, one parent may also request an appropriate reduction in alimony due to a significant reduction in income or incapacity to work.

Three situations in which the original amount of the 2. is obviously insufficient

maintenance adjustments are usually based on three major changes: a significant increase in the actual needs of the child, a significant deterioration in the economic situation of the direct dependant, and a significant increase in the financial capacity of the payer. Each category needs to be supported by sufficient evidence and cannot be claimed on the basis of subjective feelings alone.

1. Significant increase in the actual needs of children

common real increases include: children entering high-fee private schools, major illnesses or long-term medical expenses, participation in necessary extracurricular education or rehabilitation training, and significant price increases in the places where they live. These expenditures should be reasonable and necessary, not one party unilaterally raising living standards.

2. Significant deterioration in the economic situation of direct dependents

if the direct support party has a substantial decline in income due to unemployment, illness, disability, etc., and it is difficult to bear the child support expenses alone, it may claim to increase the support expenses. However, it is necessary to prove that the decline in income is continuous, non-temporary, and that efforts have been made to improve it through other means.

3. Significant increase in the payer's economic capacity

if the income of the party paying the maintenance fee increases significantly, the property increases significantly or inherits a large amount of inheritance, the child may claim a corresponding increase in the maintenance fee. However, the court usually does not include the full amount of the payer's new income in the maintenance fee, but determines it in a reasonable proportion to avoid disguised punishment of the payer.

3. the main points of proof of the direct support party.

The party advocating an increase in maintenance needs to provide evidence around the two dimensions of the actual needs of the child and the affordability of the payer. The more specific the evidence, the more likely it is that the court will support it.

1. Evidence of child expenditure

including tuition bills, medical invoices, rehabilitation training expenses, living expenses list, extracurricular education expenditure vouchers, etc. The evidence should reflect the reasonableness, necessity, continuity of the expenditure, and the gap that cannot be covered by the original maintenance fee.

2. Evidence of payer's income

the payer's salary income, bonuses, operating income, investment income, property rent, etc. can be used as a reference for its affordability. If the payer conceals the income, it may apply for a court investigation order or ex officio to investigate its bank flow, tax records, social security contribution base, etc. If the payer has a high consumption record but the actual income is unknown, the court may determine the affordability in the light of the level of consumption.

4. Negotiation Change and Litigation Change Path

the adjustment of alimony can be achieved in two ways: by signing a written change agreement after consensus between the two parties, or by one party suing to request the court to make a change. Negotiated changes are the least costly and most efficient, but must be fixed in writing to avoid future reneging.

1. Negotiation of changes in writing

the change agreement shall state the amount of the original maintenance fee, the adjusted amount, the payment method, the payment period, the reason for the adjustment, the liability for breach of contract, etc. The agreement shall take effect after being signed by both parties and may be notarized or witnessed by a lawyer if necessary to enhance the effectiveness of the agreement.

2. Procedure for litigation changes

if the negotiation fails, the party directly raising the child or the child himself may act as the plaintiff, and the payer shall be the defendant and bring a lawsuit for the maintenance dispute to the court. The original divorce agreement, child birth certificate, supporting relationship certificate, expenditure voucher, income change evidence, etc. shall be submitted at the time of prosecution.

Amount and duration of 5. maintenance adjustments

in determining the amount of alimony, the court takes into account the actual needs of the child, the affordability of both parents and the actual local standard of living. If there is a fixed income, the maintenance fee is generally paid according to the proportion of 20% to 30% of the total monthly income; if the child support fee is borne by more than two children, the proportion may be appropriately increased, but generally does not exceed the 50% of the total monthly income.

1. Separate sharing of special expenses

the court usually supports the sharing of large medical and educational expenses of children beyond the scope of daily maintenance. Such expenditures need to be negotiated in advance or claimed on the basis of bills afterwards, and a single large expenditure should be notified to the other party in advance and the necessary consent should be obtained.

2. Maintenance payment period

maintenance is generally paid until the child reaches the age of 18. However, if the child has not yet lived independently, is still receiving Senior high school education or below, or is incapacitated, the parents shall continue to pay. When adjusting maintenance, the adjusted payment period and termination conditions should also be clarified.

6. case proof

in practice, if the children after divorce incur long-term medical expenses due to major diseases, and the maintenance expenses agreed in the original agreement are obviously not enough to cover the actual expenses, the direct maintenance party sues to request an increase in maintenance expenses. The court usually reviews the medical bills, diagnosis certificates, cost continuity and the income of the payer, increases the amount of maintenance expenses within a reasonable range, and orders both parties to share the large medical expenses exceeding the daily maintenance expenses in proportion. In similar cases, the amount of division or compensation is usually in the range of $100000 to $3 million, depending on the size of the property and the circumstances of the evidence.

In practice, if the party paying alimony has a significant decline in income due to unemployment or long-term illness, and requests a reduction in alimony, the court usually requires unemployment certificates, medical records, income certificates, social security payment records, etc. to reduce the amount of alimony as appropriate after confirming that the decline in income is continuous and non-temporary, but generally it will not fall to a level significantly lower than the basic living needs of the children. In similar cases, the amount of division or compensation is usually in the range of $100000 to $3 million, depending on the size of the property and the circumstances of the evidence.

7. Risk Alert

  • increase on the basis of price increases alone: the increase needs to be significant and it needs to be shown that the actual expenditure exceeds the original maintenance.
  • Not retained expenditure vouchers: tuition fees, medical expenses, rehabilitation expenses and other bills are missing, it is difficult to prove the actual need to increase.
  • Ignoring the payer's reasonable affordability: the amount of the request is too high and the court may decide on a pro rata basis of income and not support the full claim.
  • The oral change agreement is not written: when one party repents, the other party is difficult to prove.
  • Missed statute of limitations: After the child is an adult or living independently, the request for a support adjustment may no longer be supported.

8. FAQ

can the alimony agreed in the divorce agreement be changed?

Yes, provided that a significant change has been demonstrated, such as a significant increase in the actual needs of the child, a deterioration in the financial situation of the direct dependant or a significant increase in the income of the payer. A change agreement may be entered into through negotiation or an adjustment may be brought to court.

What evidence is needed to increase maintenance?

Children's expenditure documents such as tuition fees, medical expenses, rehabilitation bills, evidence of changes in the payer's income such as salary flow, tax records, business income certificates, and related materials of changes in local living costs.

As the payer's income increases, does the maintenance fee necessarily increase?

Not necessarily. The court will take into account the actual needs of the child and the affordability of the payer, reasonably determine the proportion of income, and will not include the full amount of the additional income in the maintenance fee.

Can alimony be reduced?

You can. The payer may request a reduction in maintenance due to a significant decline in income due to unemployment, illness, disability, etc., provided that the decline is sustainable and the original amount is significantly beyond affordability.

Practical Experience of 9. Lawyers

it is not easy to change the alimony written in the divorce agreement, because it is a binding agreement. However, "bound" does not mean "cannot be changed": when the actual needs of the children, the affordability of one parent or the local living standard change significantly, the original amount can be adjusted according to law. The key word in the judgment is "obvious"-whether the original amount is obviously insufficient, or whether the payer's economic situation has changed significantly enough to affect the burden. The feeling that "prices have gone up and I don't think it is enough" usually cannot be adjusted.

If you want the amount to go up, it is more useful to do enough evidence than to communicate repeatedly. The child's tuition, medical care, and necessary extracurricular or rehabilitation expenses must be proved by bills and records to be reasonable and necessary, rather than one party unilaterally raising the standard of living; if the other party's income has increased significantly, there must also be verifiable materials. If you want to apply for a downward adjustment, you must be able to prove that your income has decreased significantly or you have lost your ability to work. In practice, we first try to negotiate changes and sign a supplementary agreement to fix the new amount and implementation method. If we can't talk about it, we will go through litigation changes, which will save trouble and leave a way out.

A few more points to remind. The adjustment of alimony and the "children's separate claim" are two different things-the agreement or the original judgment will never prevent the children from making reasonable demands exceeding the original amount when necessary, and the rights of the claim will not be lost because they have signed the agreement; On the other hand, the agreed part must still be performed according to the agreement before the adjustment, and "I want to change" cannot be used as an excuse to stop paying, otherwise it will easily fall into passivity in the procedure. The adjustment involves the amount and time limit in the future. It is not to write off the past, to think clearly about this boundary, and then to decide how to talk and how to sue, so as not to use wrong efforts.