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After divorce in Ningbo, can alimony be increased or decreased? Change the conditions, proof and process of alimony

Ningbo Author：LuXu WANG

Divorce to talk about good alimony, is it "a final word", the next ten years can not move? This is a lot of Ningbo parties first asked a sentence. The answer is very clear: alimony can be increased or decreased, but it is not a matter of casual mention-there is only one core judgment, the original amount is still "enough" at present, and the payer is "not affordable". Children grow up, go to school, get sick and stay in hospital, and the cost of raising them goes up year by year. The law does not think that an agreement or judgment can accurately calculate the life after more than ten years, so it leaves an adjustable channel for alimony, but there are conditions, evidence and procedures for taking this channel.

In other words, alimony is not fixed, but dynamic. It is not emotional grievances that determine the success of the change, but whether you can make it clear with evidence that "the situation has indeed changed.

How is the amount of 1. alimony determined: three judging factors

to talk about changes, one must first understand what the original amount was calculated. According to Article 1085 of the Civil Code, the party who does not directly raise the children after divorce shall bear part or all of the alimony. The amount and how long the burden shall be agreed upon by both parties. If the agreement fails, the court shall decide. As for "how much is appropriate", Article 49 of the (I) of interpretation of the Supreme people's Court on the Application of the Marriage and Family Code of the the People's Republic of China Civil Code gives the standard: the amount can be determined according to the actual needs of the children, the affordability of both parents and the actual living standard of the place.

1. There is a fixed income.

The maintenance fee can generally be paid at 20% to 30 of the total monthly income; for those who bear more than two children, the proportion can be appropriately increased, but generally it shall not exceed 50% of the total monthly income.

2. No fixed income

the amount can be based on its total income for the year or the average income of the same industry, with reference to the above-mentioned proportion to determine, in practice often need to combine the operating flow, social security payment to prove.

3. There are special circumstances

article 49 at the same time clearly, there are special circumstances, can be appropriate to increase or reduce the proportion. This sentence is not only the mouth of "plus", but also the entrance of "minus"-the background color of change is the dynamic balance of proportion, actual needs and local living standards, rather than a fixed number.

Under what circumstances can 2. ask for an "increase" in alimony?

There are clear statutory circumstances for increasing maintenance. Article 1085 of the Civil Code stipulates that the amount determined by agreement or judgment shall not prevent the child from making a reasonable request to either parent for more than the original amount when necessary; Article 58 of the (I) of Interpretation further lists three situations that the court should support.

  1. The original amount of maintenance was not sufficient to maintain the actual standard of living in the area. It is common for years of divorce, prices and parenting costs have risen significantly, and the original standard is significantly lower.
  2. As a result of women's illness and schooling, the actual needs have exceeded the original amount. For example, there is a long-term need for treatment, or entry into a significantly higher-cost learning phase.
  3. There are other legitimate reasons should be added. This is a pocket clause that needs to be judged in the context of specific facts.

In addition, a significant decline in the income of the direct dependent party and a significant increase in the income of the paying party, although not directly equivalent to the statutory situation, are often the background to the discretionary increase in the amount of the court. It should be noted that the increase is not "if prices rise, it will be added", but the key is whether it can be proved that the original amount is no longer sufficient for the actual needs, that is, whether it is "necessary".

Under what circumstances can 3. claim a "reduction" or even "suspension" of alimony?

Many people think that alimony can only be increased but not reduced. In fact, when the paying party meets the conditions, it can also request a reduction. The current law does not make a list like "increase", but a relatively safe grasp has been formed in trial practice, and the following situations are usually considered:

1. Significant decrease in revenue

the paying party may claim an appropriate reduction in income due to unemployment, industry downturn, operating losses, etc., and the change is not artificially created to evade obligations.

2. Long-term illness or incapacity to work, and lack of financial resources

if you are really unable to pay the original amount, you can request a reduction in the burden.

3. Restriction of personal freedom due to illegal crime

if the person is unable to pay during the period of financial incapacity, he may claim suspension or reduction; however, if he has a new source of income after the restoration of personal freedom, he shall continue to pay in accordance with the original agreement or judgment.

It should be noted that the threshold of proof for "reduction" is often higher than that for "increase. The court will carefully examine whether "it is really unaffordable"; it is usually difficult to support a claim that it is difficult to say verbally, cannot produce objective evidence of a sharp decline in income, or even traces of property transfer.

The two paths of 4. change are to negotiate and sign the agreement first, and then sue if the agreement cannot be reached.

1. Negotiated changes: the lowest cost, but to write clearly

if the two parties can reach an agreement, it is enough to sign a written agreement on the change of alimony, specifying the new amount, starting time, payment method and when to pay, so as to avoid further disputes in the future, and can also be used as a basis when the other party goes back on its word. What needs to be reminded is that the agreement must not violate the mandatory provisions of the law, and the obviously unreasonable agreements such as "one-time buyout" and "waiving the right to increase claims" are uncertain in effectiveness.

2. Litigation change: who is the plaintiff and which court to go

if there is no agreement, it shall be settled through litigation. The cause of such cases is a "maintenance dispute", the plaintiff is usually the child himself, by the party directly raised as a legal representative of the litigation. The general rules of territorial jurisdiction apply to jurisdiction. In principle, the people's court in the place where the defendant has his domicile shall have jurisdiction. If the place of domicile is inconsistent with the place of habitual residence, the court in the place of habitual residence shall have jurisdiction.

5. evidence preparation: these points determine success or failure

the case of changing alimony is, in the final analysis, a lawsuit that speaks with evidence, and the judge needs to see the verifiable facts.

1. About income

if you want to prove that the other party "can afford" or "can't afford", salary flow, bank details, social security records, personal tax records and unit income certificates are all common materials. When the other party's income is not transparent, you can apply for court investigation and evidence collection or apply for an investigation order in the lawsuit to obtain information such as wages, social security, taxes and real estate.

2. About expenditure

the party advocating the increase should sort out the actual expenses of the children: tuition and miscellaneous fees and training fees, medical bills, insurance premiums, daily parenting expenses, etc., and it is best to organize them into continuous expenditure ledgers in chronological order to prove that the rigid expenses do exceed the original amount.

3. On local living standards and special circumstances

public data such as per capita consumption expenditure released by the statistics department can be submitted as a reference for "the original amount is not enough to maintain the actual living standard of the local area"; If it involves diseases, disabilities and other facts, it is necessary to submit diagnostic certificates, medical records, appraisal opinions and other materials.

6. a few common mistakes, first avoid the pit and then do it.

  1. "Once you set it, you can never change it. "Wrong. The amount determined by agreement or judgement could have been adjusted in the light of changing circumstances, and the law has reserved a special channel for this purpose.
  2. "Give to 18 years old completely cut off. "Not exactly right. The payment period is generally until the age of 18, but adult children who are still receiving Senior high school education or below, or who are unable to maintain a normal life due to non-subjective reasons such as loss or partial loss of working ability, can still request alimony.
  3. "If the other party doesn't pay alimony, I won't let him look after the children. "This is the most error-prone step. The right to visit and the payment of maintenance are two independent obligations that cannot be legally offset against each other, thereby preventing visits, which may put you in a passive position.
  4. "If you say it orally, you will add it. "Verbal promises are difficult to fix, and once the other party does not recognize the account, the proof is very passive. Change as much as possible in writing.

7. FAQ

the divorce agreement states that alimony is "no longer changed". Can it be adjusted?

The key is whether there is a "when necessary" or a change in circumstances. If the child's actual needs have exceeded the original amount, or the original standard is no longer sufficient to maintain the local standard of living, even if the agreement says "no more changes", it may still be supported to adjust.

When the child goes to college, can he still ask his parents for tuition and living expenses?

To distinguish between situations. In the interpretation (I), "adult children who cannot live independently" generally refer to people who are still in school and receive Senior high school education or below, or who are unable to maintain a normal life due to non-subjective reasons such as loss or partial loss of working ability. Adult children who have reached the age of 18 and have received higher education are usually not legal dependents, and the court generally does not support their claims for university expenses; however, if the parents expressly agree in the divorce agreement to bear the university expenses, the agreement is valid, and the children may claim according to the agreement.

When will the change of alimony be calculated?

In the case of a change through consultation, the agreement shall prevail; in the case of a change in litigation, it shall generally be calculated from the date of the claim, or the court may determine the starting time at its discretion. Past arrears are usually to be claimed separately or resolved through execution and should not be mixed with this change.

The other party has been in arrears for a long time. Do I first pursue the arrears or sue for change?

The two are different in nature. If the original judgment, mediation or agreement has determined the amount and the other party has not paid, you can first claim the right to the part that has been paid due and apply for enforcement when the conditions are met; if you believe that the original amount itself is unreasonable and needs to be adjusted, you can claim the change through the maintenance dispute litigation. In practice, the "debt recovery adjustment" can be considered as an overall plan to avoid back and forth.

Practical Experience of 8. Lawyers

when I take over this kind of consultation, I usually refine "want to add or subtract" before deciding how to play. The direction of increasing and decreasing the evidence is almost opposite: the party who wants to add should set up "the actual needs of the child have exceeded the original amount" and "there is still room for the other party's affordability" at the same time; The party who wants to reduce should tell the truth that "I really can't afford it. The breakthrough is often not in the most intense emotional point, but in the most objective evidence to support the link-whether the tuition bills are continuous, the other party's social security and tax records can show the real income, the local per capita consumption data can form a reference. The party who wants to reduce should pay special attention to: the court's review of "reduction" is cautious. If it is difficult to shout and traces of large consumption or property transfer are found at the same time, it is more important to claim that it is easy to collapse. It is more important to sort out the income and expenditure accounts first than to prosecute in a hurry.

The rhythm of the evidence is equally exquisite. The alimony case is not completed by handing in the materials once, but by timing the "change. I usually divide into two layers: the first layer first fixes the objective evidence of the other party's income, and forms a portrait through bank flow, social security, tax payment and industrial and commercial information. If the income is opaque, then consider applying to the court for investigation and evidence collection within the procedure; The second layer sorts out the expenses of the children at this end, and arranges the documents such as tuition and miscellaneous fees, training and medical expenses into a running account by month, so that it can be clear "where the money is spent. Do not temporarily gather a few scattered bills to sue. Evidence collection should also be avoided: it is no problem for both parties to collect normal information before showdown, but do not touch privacy, steal property or take other illegal means for evidence collection, otherwise the evidence may not be used and may be attacked. It is safer to apply for an investigation order and the court to obtain such formal channels.

Finally, talk about negotiation and timing of action. The most puzzling thing for many parties is that they regard visiting as a bargaining chip: "if he doesn't give money, I won't let him see the children. "When this sentence is uttered, it often completely talks about the space that could have been discussed-the two obligations do not offset each other in law. The more you hold your child, the more reason the other party has to delay. The pragmatic approach is to separate the payment obligation from the visit arrangement, write in the agreement the starting time, payment method and delay consequences of the fresh amount, and put the verbal commitment on paper. In terms of the timing of action, it is suggested to seize several nodes: when the child enters a new learning stage, new medical expenses appear, the other party's income increases significantly or remarries and reorganizes the family, and when his own income changes significantly. These nodes are not only the objective time point of "situation change", but also easier to be supported by evidence. In the final analysis, the change of alimony is a game based on evidence. It is much more useful to settle the accounts, prepare the materials and tell the truth early than to quarrel repeatedly.