Can the child support payment agreed in divorce agreement be changed
Can the child support payment agreed in divorce agreement be changed?
Court: it depends on the change of both parties' income and children' s actual needs.
In divorce cases, it's normal to make agreement on child support payment. However, if one party thinks the child support payment agreed in the divorce agreement is too high, can he/she pay less or lower the child support payment through litigation?
Wangzhang were a couple not long after their marriage they had an adorable son Qiangqiang. Along with the joy for child birth came quarrels pressure. In June 2015, Wangzhang divorced by agreement at civil affairs bureau. According to the agreement, Qiangqiang would live with mother ZhangWang was required to pay RMB1500 as child support each month.
At the beginning, Wang paid child support on time, but in the following months he paid less and less, finally he simply refused to pay any longer. After several negotiations with Wang failed, Zhang brought an action to Chongming district people' s court (hereinafter the “court”) as the legal representative of Qiangqiang, requesting Wang to pay child support in full amount according to the divorce agreement.
Iin court hearing, Wang held that when they divorced by agreement both parties had the willing to make peacehe agreed to pay RMB1500 child support each month as a result of compromise. He worked in a factory with a monthly income of around RMB4000. According to the local living standardthe actual needs of qiangqiang, the child support agreed in the divorce agreement was too muchshould be lowered to RMB800 a month.
While Zhang held that Wang agreed to pay the RMB1500 child support per month because she gave up partial community property, that the divorce agreement was entered out of both parties' free will. Hence she believed the content of the agreement was valid, didn' t agree to lower child support.
Through trial, the court held the the agreement on child support reached between Wangzhang was made after giving full consideration to property partitionchild support. The agreement was made out of true intention should be protected by law. Wang admitted that he was fully aware of the agreement on the amount of child support in the divorce agreement, but failed to produce evidence to prove there was significant change in its current income compared with the income when the divorce agreement was signed. Therefore his pleading on reduction of Qiangqiang' s child support was not accepted. Wang should pay child support of RMB1500 each month as agreed in the divorce agreement.
The focus in this case is whether the judge can use discretion to adjust the amount of child support agreed in the divorce agreement when the amount is bit high. The problem can be solved by referring to the regulations on child supportthe nature of the divorce agreement.
According to Marriage Law, the parties can make agreement on the amount of child support deadline of child support payment when they divorce. When there is no agreement, the child support can be determined by referring to the several opinions of the people's court on children’s custody in trying divorces cases promulgated by the Supreme People's Court: the amount of child support shall be determined based on the actual needs of child, parents' affordability the actual local living standard. In this case, both Wangzhang' s income are about RMB4000. Qiangqiang, five years old, is studying in kindergarten. Given the above factors, the amount of child support of RMB1500 is bit high. This is also the main ground in Wangs pleading.
In terms of nature, the divorce agreement is a contract. The process of reaching divorce agreement actually includes both parties' consideration to a series of issues including property partitionchild raising. The final divorce agreement is the result of the parties' negotiation. If the divorce agreement made by parties with full capacity for civil conductcontent is the true intention of both partiesnot in violation of laws, rules, public ordergood custom, it shall be binding upon both parties. Therefore, if Wang wants to deny the effectiveness of the agreement on child support in the divorce agreement, he has to prove his statement on the issue was not his true intention. But this doesn' t mean the amount of child support cannot be changed after the agreement on child support is made but depends on the change of both parties' incomeactual needs of the child. For instance, if a parent suffers serious disease which causes sudden income decreaseexpenses increase significantly as the child attends schoolgrows older, he/she can asked for adjustment of the amount of child supportpayment method according to the principle of change of circumstances .
In this case, there is no significant change in the health income condition of Wang at the time of the litigation compared with that when the divorce agreement was signed, the principle of the change of circumstances therefore doesn' t apply. Moreover, patents should properly deal with their relation with the other partychild after divorce, offer enough material supportcare for child' s healthy growth following the principle of maximum benefit, do not use child to restrict the other partyvent anger, hurting the child for a second time.
Several Opinions of the People' s Court on Childrens Custody in Trying Divorces Cases
Article 7 the amount of child support shall be determined based on the actual needs of children, parents' affordabilityand the actual local living standard.
For the parent with fixed income, the amount of child support may ac for 20% to 30% of his/her monthly income. Where two more children need to be supported, the proportion can be increased but no more than 50% of his/her monthly income.
For the parent with no fixed income, the amount of child support can be determined based on the above proportions according to the total income of the year and the average income in the same industry.
In case of special circumstance, the above proportions can be raised or lowered as appropriate.
Article 18 where the child requests to increase child support under one of the following circumstances the parent is able to pay, such request shall be supported:
(1) The formerly determined amount of child support is unable to meet the actual local living standard;
(2) The actual need has exceeded the formerly determined amount due to the child' s sickness or school education;
(3)There is other good reason for the increase.