Insights

After Ningbo remarries, do you want to pay child support for your former marriage?

Ningbo Author：LuXu WANG

Remarriage is the restart of marriage relationship, but it is not necessarily the restart of kinship relationship. In remarried families in Ningbo, you often hear two opposing views: one side argues, “He’s already remarried—why should I still have to pay child support for his previous children?” while the other insists, “Since the child went with the mother when she remarried, the stepfather should share in the responsibility of raising them.” Neither statement is accurate. The answer given by the law is simple: for biological children, the obligation to raise them is not eliminated by parents' divorce or remarriage; for stepchildren, only when a relationship of upbringing and education is truly formed can stepparents bear the obligation to raise them. Blood relationship to see "is not", stepchild relationship to see "nowhere".

The following discussion, in light of the Civil Code and the Supreme People’s Court’s Interpretations on the Application of the Marriage and Family Chapter of the Civil Code, clarifies whether alimony should still be paid for children from a previous marriage after remarriage.

1. The relationship between remarriage and the obligation to provide support

Grasp a premise first: The basis of the maintenance obligation is the relationship between parents and children, not the marriage relationship. Article 1084 of the Civil Code stipulates that the relationship between parents and children shall not be eliminated by the divorce of the parents; after the divorce, the children are still the children of both parents, and the parents still have the rights and obligations of raising, educating and protecting the children. Article 1085 stipulates that if, after divorce, a child is directly raised by one party, the other party shall bear part or all of the alimony. The article reads "after divorce", not "before remarriage". Remarriage only reestablishes a family and does not cut off the parent-child relationship with the children born from the previous marriage.

First, the increase of the other party's affordability after remarriage does not mean that he can ask for an increase in alimony. The second paragraph of Article 1085 of the Civil Code stipulates that the original agreement or judgment does not prevent the child from making a reasonable request for more than the original amount when necessary. The "necessity" here refers to the actual needs of the children-rising prices, illness, further education, increased necessary medical expenses, etc., rather than the improvement of the parents' family conditions. The increase in the family's income after the remarriage of the father or mother belongs to their own living conditions and does not automatically translate into a reason for increasing maintenance. The court determines whether the increase is based on whether the child needs it and whether the payer can afford it, not how much money the payer's spouse has.

Secondly, remarriage does not constitute a reason to reduce alimony. The payer remarries and has more expenses at home, so it cannot be taken for granted that it can be given less. Once the maintenance fee is agreed upon or determined by judgment, it shall be binding on both parties and shall not be changed at will in non-statutory circumstances. Remarriage is the choice of the parties themselves, and the expenses brought about by the formation of a new family generally cannot resist the maintenance obligations that have been undertaken before.

2. obligation to support biological children (former marriage children)

For the biological children born in the previous marriage, the obligation to support them is legal and continuous, which is neither eliminated by divorce nor changed by parents remarrying or giving birth to new children. Children born after divorce and children born after remarriage are different in the eyes of parents, and there is no distinction between high and low in law-they have the obligation to raise every child.

Then, after remarrying and giving birth to a new child, can you use this as an excuse to reduce the maintenance fee originally agreed? According to the judgment of local judges, the mainstream attitude is generally not supportive, and can be adjusted only when there are objective difficulties.

In the case of Jiang Pengpeng v. Jiang Zhentao's alimony dispute, the parties agreed to remarry less than a month after the divorce, and gave birth to another daughter at the end of the year, and then sued to reduce the alimony. The court held that the agreement on alimony in the divorce agreement is a true expression of intention and is binding on both parties; the parties first reached a divorce agreement, and then quickly remarried and reborn, during which no unforeseen objective circumstances occurred, and the principle of change of circumstances did not apply. On the contrary, the change violated the principle of good faith, so it did not support its request. Similarly, many courts rejected requests for "remarriage and childbearing, and for a reduction in alimony due to the great pressure of life" on the grounds that they "failed to prove a significant decline in income and a significant reduction in labor capacity. The court will also point out that it is unreasonable for some parties to claim difficulties while taking out loans to purchase large real estate after remarriage.

However, "generally not supported" does not mean "absolutely not supported". If the payer's income has decreased significantly for a long time due to illness, disability, unemployment and other reasons, and the continued payment according to the original standard will seriously affect his basic life, the court may make an appropriate reduction. However, the threshold for adjustment is objective, realistic and evidentiary difficulties, rather than "the cost increases after remarriage".

Corresponding to a decrease is an increase. When necessary, the child may request the parent who can afford it to increase the maintenance fee. Common situations include: the original amount is not enough to maintain the actual local living standard; the actual need for schooling has exceeded the original amount due to illness; there are other legitimate reasons. That is to say,"It is agreed not to pay alimony" is not a once-and-for-all solution-if the economic situation of the direct dependant is significantly reduced, or the necessary expenses of the child are significantly increased, the child can still request the other party to pay.

Do you want to raise 3. stepchildren

This is the most commonly misunderstood aspect of blended families. The answer falls on Article 1072 of the Civil Code: "No abuse or discrimination shall be allowed between stepparents and stepchildren. The rights and obligations between a stepparent and a stepchild who is under the stepparent’s care and upbringing shall be governed by the provisions of this Law concerning the relationship between parents and children. The provision is structured in two tiers: the first tier sets a baseline—regardless of the closeness of the relationship, stepparents and stepchildren must not abuse or discriminate against each other; the second tier is the key— Only when stepchildren "receive their upbringing and education", stepparents bear the obligation of raising.

The step-parent does not, of course, acquire the obligation to support the step-child simply because of remarriage.Step-parents and step-children are, by nature, only related by affinity arising from the remarriage of their parents; legally, no rights and obligations as between parents and children arise. For such rights and obligations to come into existence, there must be an additional factual basis, namely that the step-parent has actually provided for and educated the step-child.

What is "upbringing education"? The basic judgment of judicial practice is: Based on living together, especially the length of living together, and then comprehensively examine whether the stepparents take care of their real life, whether they perform the duty of family education and guarantee the right of minors to receive education, and whether they bear the maintenance fee. There are three main points:

  • Living together is the core foundation, and the time should not be too short; short-term, intermittent care is usually not enough to form a parenting and educational relationship.
  • If the stepparents do not live with their stepchildren, and the biological parents only use the joint property of the husband and wife to pay the maintenance fee, it is generally not appropriate to identify the formation of the relationship of upbringing and education in the sense of Article 1072.
  • The upbringing and education is based on the premise that the stepchild is underage or unable to live independently; if the stepchild has grown up and can live independently at the time of marriage, the two parties only have a relationship by marriage.

Once the relationship of upbringing and education is formed, the legal consequences are comprehensive: it belongs to the pseudo-consanguinity in law, and the stepparents have the obligation to support, educate and protect the minor stepchildren; the stepchildren who receive their upbringing and education have the obligation to support, support and protect the stepparents when they reach adulthood; both parties enjoy the right of inheritance; the stepchildren can also follow the surname of stepfather or stepmother. In other words, Once "Department" has a relationship of raising and educating, both parties will treat them as "parents and children", enjoy rights and bear responsibilities.

4. the dual relationship between stepchildren and their biological parents and stepparents

Forming the relationship of raising and education does not eliminate the relationship between stepchildren and their biological parents. While the stepparents form a pseudo-consanguinity with their stepchildren, the parent-child relationship between the stepchildren and the biological father or mother who does not directly raise them persists. thus forming a "dual" pattern:Stepchildren still have a duty to support their biological parents and, where a fostering or educational relationship has been established, also owe a duty of support to their stepparents. In terms of inheritance, stepchildren are statutory heirs both of the stepparents with whom they have a fostering relationship and of their biological parents.

Because "double rights and obligations" means that a relationship may have two responsibilities, the law also gives room for choice-Article 103 of the Civil Code stipulates that the stepfather or stepmother can adopt the stepchild with the consent of the stepchild's biological parents; once the adoption relationship is established according to law, the stepparents and children will form a complete parent-child relationship, and the rights and obligations with the biological parents will be eliminated by law.

The inheritance of stepchildren to stepparents involves aspects such as the determination of the dependency relationship, the succession order, and the scope of the inheritance. Here is just a hint: The key still lies in whether the dependency relationship is formed; if it is formed, the stepchild can participate in the inheritance as the legal heir, but if it is not formed, it cannot. The specific case is detailed separately.

5. relationship after parental divorce

The Civil Code Marriage and Family Interpretation (II) stipulates that after the divorce between the biological father and stepmother or the biological mother and stepfather, if the parties claim that the rights and obligations between the stepparents and the stepchildren who have been raised and educated by them are no longer applicable to the provisions of the Civil Code on the relationship between parents and children, the people's court should support them; but there are exceptions: first, the two parties have a legally established adoption relationship, second, stepchildren still live with stepparents. The (I) interpretation of the marriage and family editor stipulates that when the biological father divorces the stepmother or the biological mother divorces the stepfather, if the stepfather or stepmother does not agree to continue to raise the stepchild who has been raised and educated, the biological father or mother shall still raise the stepchild.

  • If the relationship of upbringing and education is not formed, both parties have only in-law relationship. Once the remarriage relationship is terminated (divorce by agreement, divorce by judgment or death of biological parents), the relationship between stepparents and children will be dissolved, and stepparents have no obligation to support.
  • For those who have formed a relationship of upbringing and education, if the step-parents do not agree to continue to raise the minor step-children after divorce, they shall still be raised by the biological parents, and the relationship of rights and obligations between the two parties can be dissolved; but if the stepchildren still live together with the stepparents, or the two parties have established an adoption relationship, they cannot be dissolved at will.
  • After the relationship is dissolved, not all of them will no longer bear the burden. For stepparents who lack the ability to work and the source of livelihood, if they request the adult stepchildren who have received their upbringing and education to pay living expenses, the people's court may comprehensively consider the situation of upbringing and education, the affordability of the adult stepchildren and other factors to support them according to law; except for stepparents who have abused or abandoned their stepchildren.

How to determine and adjust the 6. maintenance fee

The law gives a flexible standard for the specific amount of alimony. Article 1085 of the Civil Code stipulates that the amount of 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 decide. Maintenance includes children's living expenses, education, medical expenses and other expenses.

In terms of amount, the rules often referred to in practice are: for those with fixed income, they can generally be paid according to 20% to 30% of their monthly total income; for those with more than two child support expenses, the proportion can be appropriately increased, but generally not more than 50% of the monthly total income; for those without fixed income, they 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; under special circumstances, the ratio can be appropriately increased or decreased. The court will also take into account the actual needs of the child, the affordability of both parents and the actual local standard of living. The payment may be made in the form of a periodic payment, a one-time payment or a financial offset.

In terms of the term, the maintenance fee is generally paid until the child is 18 years old; if the child is over 16 years old but not 18 years old, and takes his own labor income as the main source of income and can maintain the local general living standard, the parents can stop paying. "Adult children who are unable to live independently" usually refer to adult children who are still in school to receive Senior high school education or below, or who are unable to maintain a normal life for non-subjective reasons, such as loss or partial loss of working ability; adult children who have already attended university generally do not fall within this scope.

After the alimony is determined, it is not the same. It can be changed by agreement or sued. As long as the change of the agreement does not harm the legitimate rights and interests of the children, the court usually recognizes it. If the change is sued, it is required to increase the general needs: the original amount is not sufficient to maintain the actual local living standard; The actual needs exceed the original amount due to illness, schooling, etc.; There are other legitimate reasons and the payer can afford it. Where a reduction is requested, objective circumstances such as the incapacity of the paying party to work and the loss of financial resources due to criminal detention are usually required; "remarriage and childbirth" itself generally does not constitute a valid reason for the reduction.

Remedies 7. the other party's arrears of maintenance

The failure to get alimony is another type of high-frequency distress, which should be handled in two cases.First, there is an already effective judgment, mediation statement, or a confirmed mediation agreement. If the other party fails to perform, it can directly apply to the court for compulsory execution. The court can inquire, freeze, and deduct the bank deposits, wages, provident funds and other properties of the person subject to execution through the online inspection and control system, seal up and auction his real estate and vehicles, or include them in the list of untrustworthy persons subject to execution in accordance with the law, and adopt restrictions on high consumption And other measures; if the circumstances of refusal to perform are serious, they may also be investigated for corresponding legal responsibilities.

The second type, there was only an agreement and no effective legal document before.If the other party fails to make payments as agreed, you may file a separate lawsuit requesting the court to order them to pay the outstanding child support. If a minor child or an adult child who is unable to live independently requests to pay the outstanding maintenance fee, the people's court shall support it; if the child has reached the age and is able to live independently, the direct supporter may also request the other party to pay the previously outstanding expenses.

It must be emphasized: The remarriage of the other party is not the reason for refusing to pay the maintenance fee. No matter whether the other party remarries or not, and whether the remarried object is willing to pay, it will not reduce the legal obligation of the payer;Similarly, the remarriage of the direct dependant and the improvement of family conditions are not reasons for the other party to stop paying.

8. Common misconceptions

Myth 1: "If the other party remarries and the child is raised, I don't have to pay." Remarriage does not eliminate the parent-child relationship, nor does it eliminate the obligation to support. Who takes care of the child and whether there is one more person in the family to earn money does not affect the payer's continued payment of maintenance according to the agreement or judgment. Refusal to pay on the grounds of the other party's remarriage is a typical breach of contract or refusal to perform.

Myth 2: "The stepfather must raise the child brought by his ex-wife (ex-husband)." Stepparents do not naturally have the obligation to raise their stepchildren because of remarriage. Only when they actually form a relationship of raising and education-living together, taking care of, educating, bearing the maintenance fee and reaching a certain period of time-can they bear the same obligation as parents. This obligation does not exist if the stepchild has been raised by the biological parents or if the stepparents do not live with them at all.

Myth 3: "All money given after remarriage is considered as alimony." alimony has its definite scope, which mainly refers to children's living expenses, education expenses, medical expenses, etc. Other daily expenses for children, such as red envelopes for holidays and non-essential items purchased temporarily, may not be directly offset against the amount payable if they do not clearly point to alimony. For the avoidance of dispute, the payment of maintenance is best made by transfer, indicating the purpose and retaining the voucher.

Misconception Four: “Once the child has changed their surname and is living with the stepfather, the biological father is no longer obligated to provide support.”"Whether a child takes the father’s or mother’s surname is separate from the obligation to provide support; a change of surname does not extinguish that obligation.

9. Frequently Asked Questions

Question 1: I’ve remarried—am I still required to pay child support for the children from my previous marriage?Yes. Remarriage does not terminate the parent–child relationship, nor does it extinguish the duty of support. As long as the child is a minor or unable to live independently, the payment shall continue to be made in accordance with the criteria established in the divorce agreement, the mediation document or the judgment.

Question 2: After the other party remarries and their income increases, can I request an increase in child support?You cannot simply request an increase in support payments on the grounds that the other party has remarried or that their household income has increased. The legitimate reason for an increase is that the child’s actual needs have increased, and the other party has the financial capacity to bear the additional expenses.

Question 3: After my divorce, I remarried and had children. Can I use this as grounds to request a reduction in the original child support obligation?Generally not. The court usually disapproves the claim of reducing or not paying maintenance on the grounds of remarriage and childbirth alone; only if there is a long-term illness, disability, unemployment, etc. that leads to a significant long-term decline in income may be considered as appropriate.

Question 4: Should stepchildren be raised or not?See whether a fostering and educational relationship has been established. Formed, stepparents have the same upbringing obligations as their parents; not formed, stepparents have only moral care. The core of the determination lies in whether the parties have lived together for a prolonged period and whether they have actually provided care, education, and financial support.

Question 5: After the stepfather divorces the biological mother, are the stepchildren still required to provide support?It depends. Generally speaking, if the stepparents do not agree to continue to raise their minor stepchildren after divorce, they will still be raised by the biological parents, and the relationship between the stepparents and children can be dissolved. However, if the stepparents lack the ability to work and the source of income, the court can comprehensively support the stepchildren to pay a certain amount of living expenses.

Question 6: The other party has been consistently in arrears with child support payments. How can I recover them? If there is an effective judgment or mediation statement, apply directly for compulsory execution; if there is only a divorce agreement and no legal document, sue separately for payment of the arrears of maintenance. Whether the other party remarries or has children in a subsequent marriage does not affect their obligation to make payments.

10. Lawyer's Practical Insights

In blended families, the most common misconception about child support is treating remarriage as an on‑off switch for parental obligations. In the case of a biological child born to a previous marriage, the obligation to support the child is not extinguished by divorce, remarriage or the birth of a child, nor is it automatically increased by the remarriage of the other party. What the parties should really distinguish is whether they should be given or not and whether they can be adjusted: if the other party asks for an increase in alimony on the grounds of an increase in remarriage income, the premise of the increase is that the actual needs of the children have undergone substantial changes, such as prices, illness, further education and necessary medical care, rather than better conditions in the payer's home. On the contrary, it is usually difficult to obtain support if the payers demand for remarriage and new family expenses are greatly reduced.

If you are the party who advocates the adjustment, you should choose the right direction of proof: ask for an increase, prepare the bills for the actual expenses of the children, the certificate of schooling and medical treatment and the income status of the payer; if you ask for a decrease, you have to come up with evidence of objective difficulties, and it is difficult to convince the referee only by having another child and being under great pressure. If the other party is in arrears for a long time, start with the collection and leave traces. SMS, WeChat and transfer records will be kept. If the negotiation fails, the lawsuit will be filed in the name of the child. The claim will be made in time and on schedule. Don't let the right sleep. Keep records of every payment and collection effort, so that you will not be at a disadvantage whether you are negotiating or filing a lawsuit.

Remarriage will also lead to the problem of stepchildren, and the judgment standard is that there is no place: whether to live together for a long time and whether the stepparents actually undertake the upbringing and education, which is the key to whether the stepparents bear the obligation, and the marriage relationship alone is not enough. In the event of further divorce, there are other rules for dealing with the relationship between the stepparents and the stepchildren who are dependent on them. The evidence of living together and the sharing of expenses can be left in advance, which can not only take the initiative when fighting for alimony, but also avoid being turned over in the future. Ultimately, don’t gamble on your obligation to provide support through remarriage; the most reliable approach is to preserve the facts as evidence.

Returning to the original question, we can draw a three-sentence conclusion: For biological children, remarriage does not change the maintenance obligation, nor does it automatically change the amount of maintenance fee; for stepchildren, only when the relationship between maintenance and education is formed, the stepparents can bear the maintenance obligation; the increase or decrease of maintenance fee depends on the actual needs of the children and the objective affordability of the payer, not on who gets married and who gives birth to the children.

Falling on the specific operation: firstly, write the amount, payment method and time limit of the maintenance fee as clearly as possible, use the transfer and indicate the purpose, and keep the voucher; secondly, if it needs to be adjusted, give priority to reaching a written agreement through negotiation, and if the negotiation fails, do not stop paying or underpay by yourself; thirdly, if it involves stepchildren, pay attention to keeping the evidence of common living, care, education and expenses; fourth, if you cannot get alimony, apply for enforcement or prosecution in a timely manner.