Civil and Commercial Perspective... Can the actual support change the custody agreed in the divorce agreement.
Published:
2023-12-21
Brief of the case
On July 17, 2009, Wang (female) and Zhang (male) registered their marriage in the Civil Affairs Bureau. After marriage, they gave birth to their eldest son Zhang Daxou on June 4, 2010, and gave birth to their second son Zhang Xiaomou on October 9, 2014. The two parties agreed to divorce on December 1, 2020 due to emotional discord. The two parties agreed in the divorce agreement that "each person shall raise one child without division of property". Since the divorce of both parties, the two legitimate children were actually directly raised by Zhang. Later, Zhang filed a lawsuit with the people's court according to the agreement of the divorce agreement. The lawsuit request: 1. According to the law, Zhang Xiaomou, the son of both parties, was raised by Wang, and Wang was ruled to pay Zhang Xiaomou's alimony from December 1, 2020 to the date when Wang was actually raised according to 1800 yuan per month; 2. According to the law, Zhang Da was sentenced to be raised by Zhang, and Wang was sentenced to pay Zhang Da's maintenance fee from December 1, 2020 to the date of his independent life in accordance with the monthly 1800 yuan; 3. The litigation expenses shall be borne by Wang.
The author's agent, Wang mou, puts forward the following key points of reply
1. Zhang's statement in the complaint that Wang did not fulfill the obligation of raising after the divorce is inconsistent with the facts, because the oral agreement between the two parties after the divorce changed the content of "each person raising one" stipulated in the divorce agreement, and the custody of the two children was handed over to Zhang, and Zhang has actually raised, and the actual raising situation has changed the content of the divorce agreement, can no longer fulfill the divorce agreement agreed to "raise one per person".
2. because both children are boys, raising children by Zhang is more conducive to the growth of children. Raising two children together is more conducive to the healthy growth of the child. Now if the judgment is forced to change the custody right, it is not conducive to the physical and mental health of the child. Therefore, the request to reject Zhang's claim.
3. Regarding alimony, Wang believed that when the two parties agreed to divorce, Wang did not propose to divide the joint property of the husband and wife in order to allow Zhang to better raise the child. The two parties verbally agreed to offset the joint property of the husband and wife against the child's alimony. It was agreed in the divorce agreement: "No property division". Therefore, the court was requested to investigate the facts of the case in accordance with the law and reject Zhang's claim.
To sum up, Zhang's claim has no factual and legal basis. Wang asked the court to proceed from maintaining social harmony and protecting the legitimate rights and interests of the children, and combined with the fact that the two parties verbally changed the "one person raising one" stipulated in the divorce agreement after the divorce. Content, and the fact that Zhang actually raised, refer to the actual situation that Wang did not divide the common property of the husband and wife during the divorce, zhang's claim was rejected in accordance with the law.
Referee Points
The relationship between parents and children is not eliminated by the divorce of the parents. If the children are directly raised by one party after divorce, the other party shall bear the maintenance fee. Zhang Xiaomou, the legitimate son of the plaintiff Zhang and the defendant Wang, has been living in Zhang's hometown since his birth. If it is changed to be raised by the defendant Wang, it will greatly change his living and learning environment, which is not conducive to his healthy growth. The court does not support the plaintiff Zhang's claim. The defendant's defense that he had reached an oral agreement with the plaintiff to offset the maintenance of the two children with common property was not accepted by the court because the defendant failed to submit evidence to prove it. Therefore, the defendant Wang should pay alimony to the plaintiff Zhang from the date of divorce. With regard to the amount of alimony, according to the fact that the defendant Wang has no working income and is a rural registered permanent residence, combined with the actual needs of his children and the actual living standard of the local area, the court decided that the amount of alimony paid by the defendant to Zhang Da and Zhang Xiao is 500 yuan/month/person.
Undertaking experience
Whether the 1. is a divorce by agreement or a divorce by judgment, the original dependency relationship is based on the comprehensive consideration of factors such as the parenting conditions of both parents and the basic status of the child. Therefore, whether the conditions of dependency have changed significantly to the detriment of the dependent is an important criterion for judging whether the dependency relationship needs to be changed.
Disputes over the relationship of upbringing should proceed from "benefiting the physical and mental health of children and protecting the legitimate rights and interests of children", abide by the principle of maximizing the interests of children, and protect the legitimate rights and interests of minor children to the maximum extent. According to the fact that both parties have not divided their common property, combined with the wishes of the minor children themselves, the parenting conditions and ability of both parents, the basic situation of the minor children, the stability of the children's living environment, the situation of living together and other factors. For custody disputes, as lawyers, we should not ignore the healthy growth of children just to win the lawsuit. We should guide our clients to comprehensively consider the conditions of raising children from the perspective of children. We should not forget the rights and interests of children in order to get angry with each other, so that even if we win the lawsuit, we lose the children.
2. the divorce agreement did not agree on the property to offset the child's support, and Wang failed to provide evidence to prove the agreement, the court did not support it.
The payment of alimony is the legal obligation of the parents. If the alimony is clearly offset by the abandonment of the property share in the divorce agreement, it shall be deemed to have paid the alimony. In this case, the abandonment of the divided property did not explicitly offset the alimony in the divorce agreement, and no evidence was provided to prove the agreement. Therefore, the court did not support Wang's claim for not paying alimony.
Laws and regulations
1. Article 49 of the (I) of Interpretation of the Supreme People's Court on the Application of the Marriage and Family Code
The amount of alimony may be determined according to the actual needs of the children, the affordability of both parents and the actual living standard of the locality.
If there is a fixed income, maintenance may generally be paid in proportion to 20% to 30 of his total monthly income. For those who bear more than two child support, the proportion may be appropriately increased, but generally it shall not exceed 50% of the total monthly income.
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.
In case of special circumstances, the above ratio may be appropriately increased or decreased.
2. Article 56 of the (I) of Interpretation of the Supreme People's Court on the Application of the Marriage and Family Code
Under any of the following circumstances, if one of the parents requests to change the child-rearing relationship, the people's court shall support the (I) party living with the child to continue to raise the child due to serious illness or disability; (II) the party living with the child fails to raise The obligation or maltreatment of the child, or its living with the child has indeed adverse effects on the child's physical and mental health; (III) children who have reached the age of eight are willing to live with the other party, the party is also capable of maintenance; the (IV) has other valid reasons for the change.
3. Article 1084 of the the People's Republic of China Civil Code
The relationship between parents and children shall not be eliminated by the divorce of the parents. After divorce, the children, whether raised directly by the father or mother, remain the children of both parents.
After divorce, parents still have the right and duty to raise, educate and protect their children.
After divorce, children under the age of two shall be directly supported by their mothers. If the parents fail to reach an agreement on the upbringing of a child who has reached the age of two, the people's court shall, in the light of the specific circumstances of both parties, make a judgment in accordance with the principle of being most beneficial to the minor child. If a child has reached the age of eight, his true will shall be respected.
4. Article 1085 of the the People's Republic of China Civil Code
After divorce, if the children are directly raised by one party, the other party shall bear part or all of the maintenance. There is an agreement between the two parties on the length of the period of how much to bear the expenses; if the agreement fails, the people's court shall decide.
5. Article 67 of the the People's Republic of China Code of Civil Procedure
The parties have the responsibility to provide evidence for their claims.
The people's court shall investigate and collect the evidence that the parties and their agents ad litem are unable to collect on their own due to objective reasons, or the evidence that the people's court deems necessary for the trial of the case.
The people's court shall, in accordance with legal procedures, comprehensively and objectively examine and verify the evidence.
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