[Direct answer]It can be claimed simultaneously. In divorce litigation, the custody of children and the payment of child support fall within the scope of the same case, and should be raised together when suing: According to Article 1084 of the Civil Code, children under the age of two shall be directly raised by their mothers; according to Article 1085, the party who directly raises the child has the right to require the other party to bear child support, the amount of which shall be determined in accordance with the actual needs of the child, the parents' ability to bear the cost, and the local living standard. Generally, the child support shall be paid until the child reaches the age of 18. In similar cases handled by Henglue Lawyers, the court granted custody of the child and supported a monthly child support of 5,000 yuan. If you are preparing for a divorce, you can consult us first.Divorce litigation and legal services for family disputesThe team, or throughBeijing Henglue Law FirmMake an appointment for an interview evaluation.

I. Problem Background and Typical Scenarios

Custody and alimony are the two most contentious issues in divorce litigation besides the division of property. Typical scenarios include: both parties compete for custody, with the child living with one parent for a long time and attending school and receiving medical treatment under that parent's care; one party claims that their higher income is more conducive to the child's growth, while the other party counterargues with the amount of time spent with the child and the living conditions; the child is too young to be separated from the mother, but the other party pressures them with the opinions of their elders; the amount of alimony cannot be agreed upon, and the payment period and the way of sharing education and medical expenses are also unresolved; one party has faults such as infidelity and domestic violence, and the impact of these faults on the custody and alimony amounts also becomes a focus of attention. These issues are interrelated in divorce cases, so it is advisable to claim and resolve them together to avoid inconsistent standards caused by separate handling.

II. Key points of dispute

  • Custody rights: For children under the age of two, the mother shall have the primary right of custody. For children over the age of two, the court shall determine the custody rights based on the principle that is most beneficial to the minor child. For children over the age of eight, the court shall respect their true wishes. The current living situation and custody conditions of the children are the core evidence in determining custody rights.
  • The amount and duration of alimony: According to Article 49 of the Interpretation of the Supreme People's Court on the Application of the Marriage and Family Chapter of the Civil Code of the People's Republic of China (I), those with fixed income shall generally pay 20% to 30% of their total monthly income, and the proportion may be appropriately increased for those who support more than two children; large expenses on education and medical treatment should be agreed upon separately for sharing.
  • Methods of assertion and execution: Custody and alimony can be raised and adjudicated together in divorce litigation; if the other party refuses to pay afterwards, the party concerned can apply for compulsory execution, which can be combined with other legal means.Creditor-debtor relations and enforcement case servicesEvaluate the execution path.

III. Professional analysis by Henglue Law Firm

Taking a divorce case handled by Henglu Law Firm as an example: Ms. Li and Mr. Xu were graduate school classmates. They registered their marriage in early 2018 and had a son in 2021. Due to a lack of understanding before marriage, the couple often argued after marriage. In 2020, Ms. Li discovered that Mr. Xu had been having an affair. Although Mr. Xu promised to reform, he failed to change his ways and was later arrested by the public security authorities for soliciting prostitutes. In early 2022, Mr. Xu left home and the couple has been living separately ever since. Ms. Li insisted on divorce and sought custody of the child and alimony, while claiming that the other party should be compensated for major faults. She entrusted attorney Li Yonghui of Beijing Henglu Law Firm to represent her in the lawsuit. Mr. Xu agreed to divorce but demanded custody of the child and claimed that the multiple properties, parking spaces, and financial assets under Ms. Li's name should be divided as marital joint property. The lawyer's arguments were threefold: First, the child is under two years old, and according to Article 1084 of the Civil Code, the mother should directly raise the child, which is in the child's best interest as the child has always lived with Ms. Li. Second, Mr. Xu was arrested by the public security authorities for soliciting prostitutes during the marriage, which seriously violated the duty of marital fidelity and constituted a major fault leading to the divorce, entitling Ms. Li, as the innocent party, to request damages according to Article 1091. Third, regarding Mr. Xu's claims to the properties, parking spaces, and financial assets, the lawyer refuted them one by one with evidence such as the gift agreement and investment certificates. The court adopted the main arguments: it ruled a divorce in one judgment, awarded custody of the child to Ms. Li, ordered Mr. Xu to pay 5,000 yuan per month in alimony until the child reaches the age of 18, and ordered him to pay 200,000 yuan in compensation and 50,000 yuan in damages. This case demonstrates that custody, alimony, and fault compensation can be claimed and resolved simultaneously in the same case.

IV. Practical suggestions and legal basis

At the legal basis level: Article 1084 of the Civil Code (effective January 1, 2021) stipulates that children under the age of two shall be directly raised by their mothers as a principle. For children over the age of two, the court shall make a judgment based on the principle of what is most beneficial to the minor children. For children over the age of eight, their true wishes shall be respected. Article 1085 stipulates that after divorce, if the children are directly raised by one party, the other party shall bear part or all of the alimony. If no agreement can be reached, the court shall make a judgment. Article 49 of the Interpretation of the Supreme People's Court on the Application of the Marriage and Family Chapter of the Civil Code of the People's Republic of China (effective January 1, 2021) clearly stipulates that for those with fixed incomes, the alimony may generally be paid at a rate of 20% to 30% of their total monthly income. At the practical advice level: When suing, list the custody rights, the amount of alimony, the payment period and method (monthly or annually, how to share education and medical expenses) in the litigation requests one by one; simultaneously collect evidence of the children living with them and their own raising conditions, such as pick-up records, payment receipts, medical records, and proof of residence; if the other party has faults such as cheating and domestic violence, promptly fix evidence such as chat records and police reports, which not only support damage compensation but also affect the evaluation of the custody arrangement.

5. Henglu Law Firm's Reminder

Claiming both custody and alimony in the same case not only saves litigation costs but also avoids inconsistent standards caused by separate cases. The party claiming custody should fix the evidence of the child living with them for a long time as soon as possible; for alimony, the specific amount, start and end time, and payment method should be specified to prevent disputes after the judgment. If the other party's income is unknown, the court can be applied for an investigation order to inquire. In the above case, the court granted the divorce and supported the woman's custody right, and ordered the man to pay 5,000 yuan per month in alimony and 50,000 yuan in damages. This case was handled by Beijing Henglu Law Firm.Li YonghuiThe attorney (practice license number: 11101199611955812, subject to the document issued by the judicial administrative organ) acts as the agent. If you need a case evaluation, you can contact us viaBeijing Henglue Law FirmMake an appointment for an interview.

Q1: When getting a divorce, who is usually granted custody of the children, and is it possible to fight for it?

The key to winning the custody battle lies in the evidence and the child's current situation. According to Article 1084 of the Civil Code: For children under the age of two, the mother shall have the primary right to custody; for children over the age of two, the court shall make a decision based on the principle that is most beneficial to the minor child, taking into account the parents' custody conditions, the child's living arrangements with either parent, and the grandparents' assistance in child-rearing; for children over the age of eight, the court shall respect their true wishes. If the child has been living with one parent for a long time, and that parent has a stable residence and income, and the child's schooling and medical care are all handled by that parent, the parent usually has an advantage; if the other parent has bad habits such as domestic violence or gambling, this is also an important factor that is not conducive to the child's upbringing. It is recommended to collect evidence of daily care as soon as possible and, if necessary, apply for social supervision to assist in the investigation.

Q2: What evidence do I need to prepare to fight for custody and child support?

The preparation should focus on three aspects: first, the ability to raise the child, such as income proof, housing proof, and a statement from parents assisting with childcare; second, the current situation of child-rearing, such as pick-up and drop-off records, payment receipts, medical records, and teacher testimonies, to prove that the child has been living with the parent for a long time and has stable living and learning conditions; third, circumstances indicating that the other party is not suitable for child-rearing, such as domestic violence police reports and evidence of alcoholism and gambling habits. If the child is over eight years old, their wishes are an important factor. Communication with the child should be natural, but without coercion or pressure. Evidence should be organized into a booklet according to the timeline, which is convenient for the court to refer to during the trial. For the claim of child support, it is also necessary to obtain clues about the other party's income, such as pay slips, social security and housing provident fund records. If necessary, apply to the court to retrieve the relevant information.

Q3: How much is the alimony usually set at?

According to Article 49 of the Interpretation of the Supreme People's Court on the Application of the Marriage and Family Chapter of the Civil Code of the People's Republic of China (I), if the person has a fixed income, the alimony can generally be paid at 20% to 30% of their total monthly income; if they are responsible for supporting more than two children, the proportion can be appropriately increased, but generally not exceeding 50% of their total monthly income. If the person does not have a fixed income, the alimony shall be determined according to the above-mentioned proportion based on their total annual income or the average income in the same industry. The payment period is generally until the child reaches the age of 18; if the child has reached the age of 18 but is still studying at school or has lost the ability to work and cannot live independently, they can still claim alimony. For large-scale expenses such as education and medical treatment that exceed normal standards, it can be agreed in the agreement or litigation that the expenses will be shared equally based on receipts, so as to avoid disputes afterwards.

Q4: How long will it take to get the judgment and child support payments?

For divorce cases, they are generally concluded within six months from the date of filing under the ordinary civil litigation procedure, and within three months under the summary procedure. The time period will be extended accordingly if the disputes are complex or involve appraisal and identification. If either party appeals against the judgment, the second-instance trial will generally be concluded within three months. The alimony payment is determined upon the effectiveness of the judgment or mediation agreement, and the other party shall pay it on schedule from the date of effectiveness. If the other party refuses to perform the obligation, the applicant may apply for compulsory enforcement, and the court may inquire into and freeze the other party's bank accounts or deduct their wages. To shorten the litigation period, it is advisable to clarify the property and custody evidence before filing the lawsuit to avoid multiple court hearings. If the other party firmly refuses to cooperate or is untraceable, the timeframe should be planned according to the path of filing a lawsuit after the couple has been separated for one year.

Q5: What should I do if the other party refuses to pay child support or tries to take away the children?

Handle it in two stages. If the other party refuses to pay alimony, you can apply for compulsory enforcement based on the effective judgment or mediation agreement. The court may seize the other party's income and freeze their accounts. If the circumstances are serious, the other party may be added to the list of untrustworthy individuals. If the case has not been litigated yet, you can file a lawsuit on behalf of the child to demand payment. If the other party hides or seizes the child, you can apply for protective measures in the divorce litigation and collect evidence of the time and location of the hiding, as well as communication records. The court may order the other party to hand over the child and handle the custody according to the principle of maximizing the interests of the minor child. It is important to avoid counterattacking the other party to avoid worsening the child's situation and affecting your own custody evaluation. It is recommended to entrust a lawyer to coordinate all claims as soon as possible and resolve the custody, alimony, and visitation arrangements in one go.

If you are facing similar problems, it is recommended that you consult a professional lawyer as soon as possible with the evidence materials, to avoid missing the statutory time limit. →Divorce litigation legal services·Attorney Li Yonghui·Beijing Henglu Law Firm