CONSULTATION ON CHILD CUSTODY AND ALIMONY IN UNILATERAL DIVORCE

In life, there are many reasons why spouses may no longer be able to live together and seek a new life. Divorce often appears to be the best solution for both parties. However, not all couples are willing to mutually end their marriage, leading to one party having to file for unilateral divorce. One of the most critical issues that arise in such cases is child custody and alimony.

1. What is unilateral divorce?

According to Article 56 of the Law on Marriage and Family 2014, either spouse has the right to request the court to grant a divorce, except in certain special cases where the husband’s right to file is restricted.

Specifically, the court will grant a unilateral divorce under the following circumstances:

1. If conciliation at the court fails and there is evidence that one spouse has committed domestic violence or seriously violated marital obligations, making cohabitation impossible and the purpose of marriage unattainable.

2. If the spouse of a person who has been declared missing by the court requests a divorce.

3. If the divorce is requested by a relative (as per Clause 2, Article 51 of the Law) due to domestic violence that severely affects the life, health, and mental well-being of the other spouse.

2. Who gets custody of the child after divorce?

According to Article 81 of the Law on Marriage and Family 2014, the following principles apply to child custody after divorce:

1. After divorce, both parents still have the right and obligation to care for, raise, and educate their minor children, adult children who lack legal capacity, or those unable to support themselves.

2. The parents may agree on child custody arrangements and post-divorce obligations. If they cannot agree, the court will decide based on the child’s best interests. If the child is 7 years old or older, their wishes must be considered.

3. A child under 36 months of age is generally entrusted to the mother unless the mother is deemed unfit or both parties agree otherwise.

Principles for determining child custody when no agreement is reached:

· For children aged 7 or older: The court will consider the child's wishes.

· For children under 7 years old: The court will evaluate financial stability, living conditions, and the ability to care for and educate the child.

· For children under 36 months old: The mother is usually given custody unless she is unable to fulfill her responsibilities (e.g., due to health issues, lack of financial resources, etc.).

3. Alimony obligations after divorce

3.1. Who is responsible for paying child support?

According to Article 110 of the Law on Marriage and Family 2014, parents are responsible for providing financial support to their minor children or adult children who are unable to work and lack financial resources, in cases where:

· They do not live with the child;

· They live with the child but fail to fulfill their obligations to support them.

Thus, the parent who does not have primary custody is obligated to provide financial support to ensure the child’s well-being.

3.2. Who can request alimony?

According to Article 119 of the Law on Marriage and Family 2014, the following individuals and organizations have the right to request alimony enforcement:

1. The child, their parents, or legal guardian, under civil procedural law, may request the court to enforce alimony obligations if the responsible party refuses to comply.

2. The following individuals and organizations may also file for enforcement:

o Relatives of the child;

o Government agencies responsible for family affairs;

o Child protection authorities;

o Women's unions.

Additionally, individuals and organizations that discover attempts to evade alimony obligations can report the matter to the appropriate authorities for legal action.

3.3. How is the amount of alimony determined?

According to Article 116 of the Law on Marriage and Family 2014, the amount of alimony is determined based on:

1. Agreement between the parties: The amount should be based on the financial capacity of the paying party and the essential needs of the child.

2. Court decision: If the parties cannot agree, the court will decide based on the actual financial situation and the child's basic needs.

3. Modification of the alimony amount: In case of significant changes in circumstances, the amount of support can be adjusted through mutual agreement or by court order.

Methods of paying alimony:

· Payments can be made on a monthly, quarterly, biannual, annual, or lump-sum basis.

· The parties may agree to modify or temporarily suspend payments if the paying party faces financial hardship. If an agreement cannot be reached, the court will intervene.

4. Conclusion

Resolving child custody and alimony obligations in a unilateral divorce is a complex legal process that significantly impacts the well-being of the child. To protect the child's best interests, parents should strive to reach an agreement or seek legal assistance from experienced lawyers for appropriate guidance and representation.

If you need legal consultation or support regarding child custody and alimony obligations after divorce, please contact ADVN Law for expert assistance.

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