At present, divorce is a hot topic in society, and divorce cases accepted by courts are on the rise. There are more and more disputes over the custody of children during divorce. Both sides are fighting for the children. What's more, when fighting for the custody of the children, one party does not ask the other party to pay alimony, but asks the other party to sever the relationship with the children. The author believes that what the divorced parties are fighting for now is the custody of the children. On the one hand, the current national family planning policy generally allows only one child to be born. In most one-child families, parents want to raise children; On the other hand, the reason is that the parties lack understanding of the legal issues of raising divorced children. Therefore, the author wants to talk about the legal issues of child support after divorce.

First, the relationship between parents and children after their parents divorced

Paragraph 1 of Article 36 of China's Marriage Law stipulates: "The relationship between parents and children shall not be eliminated due to parents' divorce. After the divorce, whether the parents directly raise the children or the children of both parents. "This is the basic principle to deal with the problem of child support after divorce, that is to say, the relationship between children and parents is not affected by parents' divorce. This is a broad concept. In practice, the relationship between children and their parents includes legitimate children, adopted children and stepchildren and their parents. Different relationships are handled in different ways, as follows:

1. The relationship between parents and their children born in wedlock will not be destroyed by parents' divorce, because their relationship is a natural blood relationship based on the birth of their children. This blood relationship can not be changed, can not be dissolved through legal procedures, and can not be transferred by human will. Divorce can only dissolve the relationship between parents, not between parents and children. After the parents divorce, no matter whether the children live with the father or the mother, they are still the children of both parents, and their rights and obligations will not change before and after the parents divorce, which is consistent.

2. The relationship between adoptive parents and children will not be destroyed by the divorce of adoptive parents. Paragraph 1 of Article 26 of the Marriage Law stipulates: "The state protects the lawful adoption relationship. The rights and obligations between adoptive parents and adopted children shall be governed by the relevant provisions of this Law on the relationship between parents and children. " In other words, the adopted children are still the children of adoptive parents after divorce, and their rights and obligations will not change because of their divorce, unless there are facts to change the adoption relationship.

3. After the divorce of parents, the relationship between stepparents and stepchildren is more complicated than the former two. First of all, if there is no foster relationship between stepparents and stepchildren, the relationship will disappear after the divorce of stepparents; Secondly, if the stepparents and stepchildren have formed a dependency relationship, there are the following situations: the relationship between underage stepchildren and stepparents can be eliminated because of the divorce of stepparents; For stepchildren raised by stepparents, their relationship will not be destroyed by the divorce of stepparents; When the biological father divorces his stepmother or the biological mother divorces her stepfather, if the stepchildren raised by him do not agree to continue raising them, they should still be raised by their biological father or mother.

Second, the attribution of child support after parents divorce

Where children live with their parents after divorce is directly related to their interests. In divorce cases, disputes are most likely to arise between the parties. When dealing with the problem of raising children, we should find the most favorable solution from the perspective of the principle of the best interests of children.

Determination of child support after divorce

1, parents reached an agreement.

In divorce cases, if both parents reach an agreement on child support, they will generally respect the wishes of the parties and deal with them according to their agreement, except that it is seriously detrimental to the normal life of children being raised by parents. If both parties agree to take turns raising children, they will also respect the agreement.

2, parents did not reach an agreement.

(1) handling of children under two years old. Children under the age of two generally live with their mothers, but under any of the following circumstances, their mothers can live with their fathers: ① those who suffer from infectious diseases or other serious diseases that cannot be cured for a long time are not suitable for their children to live with them; (2) there are conditions for raising children, but parents require their children to live with them; (3) For other reasons, the children really cannot live with their parents.

(2) handling of children over two years old and under ten years old. For underage girls over two years old and under ten years old, both parents require to live with them. One of the following circumstances can be given priority: ① those who have been sterilized or lost their fertility for other reasons; (2) the children have lived for a long time, and changing the living environment is obviously not conducive to the healthy growth of their children; ③ No other children, while the other party has other children; (4) children living with their children is conducive to their growth, while the other party suffers from infectious diseases or other serious diseases that have not been cured for a long time, or there are other conditions that are not conducive to their physical and mental health, which is not suitable for living with their children.

(3) handling of children over ten years old. For minor children who have reached the age of 10, when there is a custody dispute between parents, the opinions of the children will generally be considered. Minor children aged 10 are persons with limited capacity for civil conduct and have certain ability to distinguish right from wrong. Therefore, in divorce cases, when dealing with the question of who the children live with, we should consider the personal wishes of the children. However, this does not mean that 10-year-old minor children can choose who to live with at will. Generally, the court will only consider the child's personal opinion when the parents are fighting for custody and both sides have the conditions to raise the child. As for which adult children to live with, more consideration will be given to their opinions.

(4) Children who have lived alone with their grandparents for many years. The conditions for parents to raise children are basically the same. Both sides require children to live with their parents. However, if the children have lived alone with their grandparents for many years, and the grandparents require and have the ability to help the children take care of their grandchildren, they can be considered as a priority condition for the children to live with their parents.

(2) Changes of child support relationship after divorce.

After the child support relationship is determined, the parents' support conditions have changed significantly, or if the child requests to change the support relationship, the two parties may agree to change the support relationship; If the agreement fails, it shall generally be handled according to the interests of the children and the specific circumstances of both parties. Generally speaking, if one party requests to change the child support relationship, it should be supported in one of the following circumstances: ① the party living with the child is unable to continue to support the child because of serious illness or disability; (2) The parent who lives with the child fails to fulfill the obligation of raising or maltreats the child; (3)/kloc-A minor child over 0/0 is willing to live with the other party, and the other party has the ability to support him; (4) There are other legitimate reasons for the change.

Three, there is no direct child support after divorce.

Paragraph 1 of Article 37 of China's Marriage Law stipulates: "After divorce, one party shall bear part or all of the necessary living and education expenses, and the amount and duration of the expenses shall be agreed by both parties; If the agreement fails, it shall be decided by the people's court. "

1, the payment standard of maintenance. Child support includes living expenses, education expenses and medical expenses. According to the Supreme People's Court's opinion, for those who have a fixed income, they can generally pay the one-child health care fee according to the proportion of 20%-30% of their total monthly income. Bear the one-child health care costs of more than two children, the proportion can be appropriately increased, but generally not more than 50% of the total monthly income. No fixed income, can refer to the above ratio, according to the total income of the year or the average income of the same industry to determine the amount of conservation fees. In practice, in addition to referring to the standard of wage-income ratio, we should also refer to the actual needs of children and the local actual living standards, and we cannot simply determine the amount according to the wage-income ratio.

2. Payment method of alimony. After the divorce, the party who does not directly raise the children should pay the maintenance fee to the party who directly raises the children. There are generally two ways to pay alimony: monthly payment and lump sum payment. The monthly payment mainly considers that parents' income is generally settled on a monthly basis, so it is more convenient to pay alimony on a monthly basis, and paying according to the life cycle is conducive to ensuring the normal life of children. One-time payment is a payment method used when the non-supporting party's income is unstable or the place of residence is not fixed, and it may be in arrears for a long time. Whether to adopt a one-time payment method depends on the actual payment ability and attitude of the other party. Generally speaking, if the other party does not accept a one-time payment, it will not be ordered to make a one-time payment. Of course, the divorced parties can decide the payment method of alimony through consultation according to the actual situation, or they can choose other ways to pay alimony besides the above two ways, such as annual, quarterly payment or income payment.

3. Time limit for payment of alimony. Under normal circumstances, the payment period of alimony is until the child reaches the age of 18; Parents who have reached the age of eighteen have no legal obligation to support them. Under special circumstances, parents can extend or shorten the payment period. Extending the payment period of alimony refers to the situation that although children are adults, they still can't live independently, such as losing their ability to work or not completely losing their ability to work, but their income is not enough to support their lives; Still studying at school; Without the ability and conditions to live independently. Shortening the payment period of alimony means that parents who are dissatisfied with 16 years of age or older 18 years of age can stop paying alimony if their main source of livelihood is labor income and they can maintain the local general living standard.

4. Changes in the amount of alimony. The objective factors that determine the amount of alimony may change over time. Therefore, when the original alimony amount is not enough to maintain the children's life, the law allows both parties to change the alimony amount through agreement. If no agreement can be reached on changing the amount of alimony, the children can file a lawsuit to change the amount of alimony. If a child asks for an increase in alimony under any of the following circumstances, and the father or mother has the ability to pay, it should be supported: ① the original alimony amount is not enough to maintain the local actual living standard; ② The actual demand has exceeded the original amount due to illness or children going to school; (3) there are other legitimate reasons that should be increased. If the income of the parent who directly raises the child after divorce does not increase significantly, and the income of the other parent increases a lot, the request of the parent who raises the child for additional support will generally not be supported without the actual needs of the child.

Fourth, the protection of the visiting rights of the spouse who has not directly raised children after divorce.

Paragraph 1 of Article 38 of China's Marriage Law stipulates: "After divorce, the party who does not directly raise the children has the right to visit the children, and the other party has the obligation to help." It can be seen that parents' right to visit their children will not be deprived because of their parents' divorce. This is based on parental rights, and we can't mistakenly think that the children will be raised by whom. At the same time, it is also required that the party directly raising the children should not refuse the other party to contact the children or refuse the other party to visit the children on the grounds of not asking the other party to pay alimony, so as to vent their personal anger towards the other party. Also, you can't deprive the other party of the right to visit because the child support is not in place.

1, the exercise of visiting rights. Paragraph 2 of Article 38 of the Marriage Law stipulates: "The way and time of exercising the right of visiting shall be agreed by the parties; If the agreement fails, it shall be decided by the people's court. " At the time of divorce, it is best for both parties to reach an agreement on visiting their children and stipulate when, where and how to exercise the right of visiting, which can not only prevent the direct dependents from not cooperating with the visit, but also avoid the adverse impact on the growth of the children caused by frequent visits by the indirect dependents. The exercise of visiting rights must conform to the principle of benefiting children. If the child is willing to be visited, no one can deprive the other party of the right to visit the child. If the child does not want to be visited, it is not appropriate to visit by force.

2. Suspension and restoration of visiting rights. The third paragraph of Article 38 of the Marriage Law stipulates: "If parents visit their children, which is not conducive to their physical and mental health, the people's court shall suspend the right to visit according to law; After the reason for suspension disappears, the right to visit should be restored. " If the other party's exercise of visitation rights obviously affects the growth and health of children, or children over the age of 10 clearly do not want to be visited, minor children, parents directly raising children and other legal guardians who are responsible for raising and educating minor children have the right to request the people's court to suspend visitation rights. After consulting the opinions of both parties, if the people's court considers it necessary to suspend the exercise of visiting rights, it shall make a ruling according to law. After the suspension of visiting disappears, the people's court shall, upon the application of the parties concerned, notify them to resume the exercise of visiting rights.

3. Visiting rights of grandparents and grandparents. China's marriage law does not propose that grandparents also have the right to visit, but in real life, there are still many phenomena in which grandparents ask to visit their children. Grandparents' right to visit should be exercised from the exercise of parents' right to visit, that is, parents who have no direct support relationship visit their children together, that is to say, grandparents and grandparents cannot file a complaint about visiting rights in their own names.