Lawyer Shen Jinlong discusses the two paths of Article 1085 of the Civil Code regarding whether to apply for compulsory enforcement or file a separate lawsuit if the other party fails to pay the agreed child support fees after the agreement

First, take a look at the piece of paper in your hand: the judgment and mediation documents are to be executed, and the agreement needs to be confirmed before filing a lawsuit

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 child support. The amount and duration of the support shall be agreed upon by both parties; If the agreement cannot be reached, it will be judged by the court. This is a physical basis, but how to proceed with the program depends on the credentials in your possession. Judgments, civil mediation agreements, and judicial confirmation rulings on child support made by the court are all grounds for enforcement, and can be directly applied for enforcement to the first instance court or the court where the property of the person subject to enforcement is located. If the child support amount written in the divorce agreement is only signed by both parties and stamped with the divorce seal by the Civil Affairs Bureau, it is not a basis for execution itself - if the other party does not give it, you have to file a lawsuit first and negotiate execution after obtaining the judgment. In practice, many parties may think that "an agreement is just a contract, and taking it to the court can deduct money" when they encounter it for the first time. This misunderstanding is very common and can easily waste time. If you are stuck in the process of fulfilling the divorce agreement or dividing property, you can also take a look at the 70% dispute over property in Shenzhen divorce cases, how to divide the 8 million yuan property that the other party is dragging on? This article has a coherent idea.

No litigation fees will be charged for applying for enforcement, but the two-year deadline must be closely monitored

The cost of applying for compulsory enforcement is not prepaid according to the "Method for Payment of Litigation Costs". After the enforcement is completed, it will be borne by the executed party, which is different from the need to advance litigation costs for filing a separate lawsuit. In terms of the deadline, the period for applying for execution is two years, starting from the last day of the performance period stipulated in the legal document; For installment performance, it shall be calculated from the last day of each performance period. Child support is paid on a monthly or annual basis, and many people wait for three or four years to remember. As a result, the portion of the previous years may have already passed the statute of limitations - if the debtor raises a statute of limitations defense during the enforcement process, the court will review it. We usually suggest that if you haven't received it for two consecutive periods, you should first send a written reminder, keep transfer records and chat records, and then file a case for execution as soon as possible. Don't save it. In Shenzhen, there are enforcement filing windows in Futian, Nanshan, and Bao'an courts. If all the materials are complete, the case can be closed on the same day.

Filing a separate lawsuit is not going back, these three situations actually require prosecution

The first type is that the other party does not provide the child support as stipulated in the divorce agreement, and the agreement has not been confirmed by the court; The second option is that the original amount of the judgment was set a few years ago, but now that the child is in high school, sick, and prices have risen, you need to increase child support; The third scenario is that the other party's income has significantly increased or your situation has deteriorated, requiring a change. These three types of cases require separate litigation, usually involving disputes over child support or changes in child support relationships. In terms of jurisdiction, it is usually under the jurisdiction of the court where the defendant resides; If the defendant's place of residence is different from their habitual residence, it shall be under the jurisdiction of the court of habitual residence. When filing a lawsuit, it is necessary to bring the divorce certificate, divorce agreement, child birth certificate, and other party's income clues (salary statements, social security payment records, tax records). In terms of amount, for those with fixed income, they generally receive a monthly payment of 20% to 30% of their total income; For those who bear the burden of two or more children, the proportion may be appropriately increased, but generally not exceeding 50%. This is a typical case approach and does not represent the outcome of individual cases. It depends on the local court and the actual burden capacity of both parties.

There are more means available during the execution phase than many people think

After entering into execution, the court may inquire, freeze, and transfer the bank deposits of the executed person, withhold and withdraw their income, seal up auctioned properties and vehicles, restrict high consumption, and include them in the list of dishonest executed persons. For those who refuse to fulfill their obligations with serious circumstances, they may also be fined or detained; Those who commit the crime of refusing to execute judgments or rulings shall be held criminally responsible in accordance with the law. In practice, the debtor of child support cases is often someone who has a stable job, but once their salary account is frozen, their willingness to fulfill it immediately changes. We generally recommend submitting property clues of the executed party simultaneously when applying for enforcement, such as company name, social security number, and commonly used bank account opening bank, which is much faster than letting the court search for a needle in a haystack. Implementing a settlement is also an option, but don't just write a verbal promise in the settlement agreement. It should be in writing and specify the consequences of the breach. Otherwise, if the other party delays, you will have to reapply.

Whether child support can be paid in one lump sum depends on whether the other party has the ability to pay

Article 1085 of the Civil Code does not prohibit one-time payments. Whether it is supported in practice mainly depends on two points: first, whether the other party has the ability to make one-time payments, such as having large deposits or convertible properties; The second is whether there is a risk of monthly payment, such as the other party being in another city for a long time, showing signs of property transfer, or repeatedly defaulting. If the other party's salary is ordinary and the income is paid monthly, the court usually still orders monthly or annual payments. If you want to fight for a one-time settlement, you need to submit the property clues together when filing a lawsuit, and if necessary, apply for litigation preservation. This should be distinguished from property division - child support is for children, not for the division of joint property between husband and wife. Don't mix it up in one lawsuit to calculate the total amount, as it may easily confuse the legal relationship. For cases involving the division of real estate and deposits, you can refer to the handling sequence in the Shenzhen divorce case where 70% of the property was disputed and 8 million yuan of pre marital property was almost divided, as reviewed by the lawyer.

What should I do if the other party goes missing, changes jobs, or transfers property

If the whereabouts of the person subject to execution are unknown, the court may serve an execution notice by announcement and investigate their property through the network control system. Changing jobs does not affect execution. Social security and housing provident fund deposit records can be locked to the new unit, and the court can issue a notice of assistance in execution to the new unit, requesting the withholding of wages. For the transfer of property, an application can be made to add or change the executed party, or to file a lawsuit for revocation rights; If the circumstances are serious, a report can be made to the public security organs. When Guangdong Zhiming Law Firm handles such cases, the first step is usually to conduct a property due diligence, by reviewing the counterparty's bank statements, real estate registration, and vehicle registration over the past year or two, and then deciding whether to proceed with execution or preservation first. Lawyer Shen Jinlong (Guangdong Zhiming Law Firm) reminds that the longer a child support dispute drags on, the less money the child will actually receive, and the choice of procedure is more important than emotional confrontation.

The cost and time of the two paths will be determined by calculating the account

Application for execution: No advance payment of application fee is required. After filing the case, the investigation and control process is generally initiated within one month. For simple cases, the execution may be completed within three to six months, while for complex cases, the execution procedure may be suspended. Separate lawsuit: The first instance litigation costs shall be charged in proportion to the amount of the subject matter, with each case below 10000 yuan being charged 50 yuan. The simplified procedure trial period shall be three months, and the ordinary procedure shall be six months. After the judgment takes effect, if the other party fails to pay, they may apply for execution again. So the order is clear: effective documents are executed first; Lawsuit only if the agreement is not confirmed or if there is a need to increase the change amount. The two paths can also be connected - first file a lawsuit to obtain a judgment, and then apply for enforcement. If you are still in the stage of divorce and the other party refuses to leave, let's take a look at 50000 couples divorcing in Shenzhen every year. What if the other party refuses to leave? Lawyer Futian dismantled and resolved the divorce and child support together, which is more convenient than pursuing after the divorce. More marriage and family issues can be addressedShenzhen Marriage and Family LawyerColumn review.

Evidence List: Start organizing now, don't wait for the court hearing

Divorce certificate or judgment, mediation agreement; Original divorce agreement; Medical certificate and household registration book of the child's birth; The other party's overdue transfer records, WeChat chats, and payment reminder messages; Other party's income clues (unit, social security, housing provident fund, tax payment); Actual expenditure receipts for children (tuition fees, medical expenses, training fees). These materials can be used in both the application for enforcement and separate litigation. The earlier the evidence is fixed, the harder it is for the other party to rely on it. Lawyer Shen Jinlong (Guangdong Zhiming Law Firm) often encounters situations in which the parties only have verbal agreements and do not even keep transfer records, resulting in a silent loss in the end. If you want to know what a lawyer can do for you, you can see Lawyer Shen Jinlong.

Author: Lawyer Shen Jinlong, Guangdong Zhiming Law Firm. Consultation hotline: 0755-25986969.

Disclaimer: The content of this article is a general sharing of legal knowledge, organized based on current laws and regulations and public practice, and does not constitute any legal opinion or commitment to the outcome of any specific case. There are significant differences in individual cases, and the standard of child support, enforcement measures, and judgment results shall be determined by the accepting court. It is recommended to consult a practicing lawyer based on one's own situation before making a decision.