When to file for child support. How to properly file for alimony. Does it make a difference to whom to serve: a man or a woman

The legislation provides for many options for supporting socially vulnerable citizens. One of the types of assistance is the appointment of alimony.

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Step three: apply

Having prepared all the necessary documents and writing an application (three copies will be needed), it is necessary to transfer the data to the court. To do this, you must personally visit the judicial office.

One copy the application, together with the documents, remains in the court; on the basis of this set, a court proceeding is conducted. Second instance from the court will be sent to the defendant for review. Third- will remain with the plaintiff. On it, an employee of the office must indicate the date of receipt of documents and sign.

Saving this copy is important to prevent various emergency situations: for example, loss of documents. Based on your registered copy, it will be possible to confirm the date of the application for the appointment of alimony.

Step four: judgment

After consideration of the documents, the court will set a date for the proceedings. The plaintiff and the defendant will receive summons... Upon completion of the proceedings, in case of a positive answer, the court issues a decision on the recovery of alimony.

If the debtor, on the basis of a court decision, is voluntarily willing to pay the amounts due, then the issue can be considered resolved. If the defendant evades making payments, he will have to collect alimony compulsorily.

Step five: collecting payments

Based on a court decision, you can receive your first payment almost immediately, without waiting for the ten-day deadline for filing an appeal.

The recipient of alimony can write an application for the issuance of a writ of execution. The writ of execution must contain information about:

• date of issue;
• the name of the court;
• Full name of the person who issued the document;
• Full name of the recipient and the debtor, their passport data, addresses, TIN;
• the debtor's data known to the court: place of work, availability of bank accounts, etc .;
• obligations of the debtor;
• the date of entry into force of the court decision;
• the period of validity of the writ of execution.

The writ of execution must be sealed and signed by the judge and his deputy.

The writ of execution together with the application must be submitted to the State Executive Service, which must organize the process of collecting alimony.

Where to go if the ex-husband does not pay child support?

In case of attempts to evade the payment of alimony, in the event of a sudden termination or delay of payments, the recipient needs contact the bailiff service at the debtor's place of residence... After providing the bailiff-executor with all the available documents on the case, he will calculate and begin to collect it

If the debtor did not work at the specified time, the debt will be calculated in accordance with the level of the average wages around the country.

A negligent payer can be punished: for violation of a court order he could face up to one year in prison or . Also, the debtor is obliged to pay off the existing debt and pay the amount of the forfeit.

In case of any deviation from the alimony payment schedule or violation of the amount established by the court, the recipient or his legal representative has the right to contact the bailiff service. Having received all the necessary documents, the bailiffs are obliged to independently collect the amounts due.

Why complain about the bailiffs if they do not work well?

In the event of inaction or illegal action by bailiffs, it is necessary to restore the order provided by law. But you shouldn't “jump over your head”.

In case of a one-time violation contact the head of the bailiff service: write a complaint with detailed description problems to the name of the senior, and then to the name of the chief bailiff of your region.

Be sure to register your copy of the document and expect a response. If there are no changes in the work of bailiffs, contact the court and the prosecutor's office.

Of course, collecting documents, visiting courts and writing statements takes time and effort. But after going through all the stages, you can get tangible financial assistance. Moreover, it is provided for by law.

Alimony is an amount of money that is paid by a parent to support minor children by law or by voluntary agreement.

The Family Code stipulates that the issues of maintaining children can be resolved by parents independently. So, according to Art. 99 of the RF IC, mother and father can conclude an agreement () on the amount and procedure for the payment of monetary amounts. An agreement signed in the presence of a notary acquires the force of a writ of execution, and the parents are obliged to fulfill the agreement.

But if voluntary payment of maintenance is not possible, the issue can be resolved in a lawsuit.

Expert opinion

Alexey Petrushin

Lawyer. Specialization in family and housing law.

The procedure for a parent who intends to collect alimony in judicial procedure, will be like this:

• Study the legal framework for the collection and payment of alimony;
• Correctly draw up a statement of claim for the payment of alimony;
• Collect documents that need to be attached to the claim;
• Submit a claim and documents to court;
• Take part in court hearings;
• Get a court decision;
• Transfer a writ of execution for enforced recovery of alimony.

Order and claim process for the recovery of alimony for a child

So, before proceeding with the preparation of the claim, the parent should familiarize himself with the legal basis for the recovery of alimony.

Recovery of alimony in court is possible ...

• By way of order production(by filing).

The order is allowed in cases where paternity is indisputable, if the father is constantly working and does not object to deduction from his wages Money if the collection of alimony from the father's salary does not affect the interests of other persons. The advantage of the ordered procedure for the recovery of alimony is the brevity and simplicity of the procedure: it takes only 5 days and does not imply the involvement of parents in court proceedings.

• In the course of action proceedings(by filing a statement of claim).

The lawsuit procedure applies in all other cases: if there are disputes between the parents about the maintenance of the child (for example, if paternity is not confirmed, if the father refuses to pay alimony, does not work, hides the actual amount of income, hides), as well as if the collection of alimony affects the rights of others persons.

The claim procedure for the recovery of alimony takes 30 days and involves the direct participation of parents in the trial.

Read more about how to draw up a statement of claim below.

Who can file a claim?

The right to file a claim for the payment of alimony is vested in ...

• parents;
• guardians (custodians) of the child;
• officials of childcare institutions or government agencies acting in the best interests of the child.

If the alimony is collected by a parent (father or mother), a prerequisite is living together with a son or daughter. After all, both parents should support the child equally.

For the consideration of the case on the maintenance of the child, it does not matter whether the parents are formal marriage or divorced, living together or separately. Failure by a father or mother to fulfill their obligations to support the child is the basis for going to court for alimony.

If the child lives with relatives, they have the right to apply for alimony to their parents. only after registration of guardianship or guardianship... The guardian or guardian is also the legal representative of the child and is empowered to represent his interests in the judicial authorities.

How to write a claim correctly?

There are rules for drawing up a statement of claim established by civil procedural legislation (Article 131 of the Code of Civil Procedure of the Russian Federation). If the content or form of the application contradicts these rules, the court has the right to return or leave the claim without progress - until the deficiencies are eliminated or errors are corrected. Therefore, the writing of a claim should be approached thoroughly and responsibly.

Adhere to a formal business style, state the circumstances succinctly and concisely, avoid colloquial and emotionally colored expressions. Refer to the evidence that must be attached to the claim in documentary form, mention the norms of the law confirming your case.

Consideration by the court of a claim for the recovery of alimony for children

So, the first court session is scheduled within 30 days after filing a claim... The parties are notified of the date and place of the court session.

During the session, the court considers the claim and the submitted documents, checks the legality and legality of the plaintiff's claims. The plaintiff has the right to withdraw from the claim. The defendant has the right to support the claim, as well as against him or. The parties have the right to give arguments and additional evidence, submit petitions, invite witnesses. In addition, during the trial, the parties can conclude.

Based on the results of the consideration of the case the court decides:

• satisfy the claim and collect alimony for the maintenance of children (indicating the amount and method of accrual (share or fixed), term and procedure for payment);
• refuse to satisfy the claim.

The court decision can be appealed by the parties within 30 days from the date of issue.

What to do with the court decision on the recovery of alimony?

But getting a positive court decision on the recovery of alimony is still not enough. In order for the sums of money appointed by the court to begin to come at the disposal of the parent, it is necessary to enforce the court's decision.

On the basis of a court decision, the plaintiff will receive a writ of execution. This document can be submitted ...

• to the administration at the place of work, receipt of a pension or social payment, scholarship, other income of the payer - to withhold the amount appointed by the court in favor of the recipient;
• to the Bailiffs Service - to enforce the recovery of alimony from the payer's income, if he refuses to voluntarily pay the amounts appointed by the court.

The recovery of alimony begins from the day the claim is filed with the court, and not from the day the court decision is made or entered into legal force.

You can read more about the procedure for enforced recovery of alimony in the article and

Category "Question / Answer"

Question. How is a claim for alimony written if the husband already has a child from his first marriage?

You can draw up a statement of claim based on the recommendations and example above, but with additional information.

The Family Code of the Russian Federation establishes the equal obligation of both parents to provide for common children. When one of them does not want to take part in the child's life, they have to conclude an agreement on alimony. But if the parties do not come to a consensus, and one of them refuses to comply with the requirements of the RF IC, the solution to the issue will be a judicial settlement.

In addition to one of the parents, who can file for the payment of alimony, the organization for the protection of minors has this right. This happens when the child is insufficiently supported and the parents fail to fulfill their legal obligations.

More about how to apply to the court for the recovery of alimony What documents will be required for this and how long the court proceedings will take can be found below.

Understanding how to file for alimony, you must familiarize yourself with the current rules. The submission of documents is fixed by the Code of Civil Procedure of the Russian Federation, the order of collection is the Federal Law "On Enforcement Proceedings". When making decisions on the recovery of alimony, the judicial authorities are guided by five principles:

• Equality of all minor children to receive material support.
• The duty of parents to support children in different proportions.
• The preservation of the need for parents to support their common children both during the marriage relationship and after their dissolution.
• Obligatory consideration of the courts of cases on alimony recovery throughout the Russian Federation.
• The obligations of parents to provide material support for common children are valid both with the formalization of relations, and without.

Most often, the need to sue for alimony arises precisely after the dissolution of the marriage. Parents terminated official relations, they do not have a joint household, and therefore the need to provide for the child falls on the parent, with whom he remains. Therefore, it is very easy to prove the need for penalties from a parent who left the family.

A claimant is a person in whose favor alimony is paid, a debtor is a person obliged to pay alimony on the basis of a court decision.

Less often, compulsory provision is required for children from married parents. However, when this happens, it will be necessary to collect substantial evidence and witness records to confirm that the parent is indeed disregarding his obligation to support the family.

What to do if the relationship is not registered

The problem is especially acute in the case of unregistered marriages. The sequence of actions is as follows:

• the fact of paternity is proved through appropriate tests;
• in case of a positive result, the information is entered into a genetic medical examination, which serves as an analogue of a birth certificate;
• consideration of the case through a simplified or ordinary procedure.

The judicial system supports two types of procedures to obtain the recovery of maintenance payments. Simplified (when a collection order is issued) and ordinary. In the first case, the claimant will be required to file alimony in court, provide documents and obtain an appropriate resolution.

If the debtor appeals against this decision, then the case will go into litigation and will require proceedings using evidence and the presence of the parties.

Order production

Obtaining a support order is fast and simple procedure, in which the judge alone and on an expedited basis makes a decision on the basis of the documents provided.

The term for consideration is 5 days, and the presence of the parties to the case is not required. Order production is suitable for cases where the parents have no objection to the alimony. Before filing an application, you should know that the judge has the right to order payment only in proportion to the defendant's income in regulated shares.

The shares of payments themselves are regulated by Art. 81 RF IC and in 2020 are:

• for one child - up to 25%;
• for two children - up to 33.33%;
• for three or more - up to 50%.

When withholding funds in favor of children, guarantees under Art. 139 of the Labor Code of the Russian Federation have no legal force and half of the salary may be charged from the person. Therefore, the total amount of penalties can be up to 70% of the total earnings.

Documents for order production

To draw up and send an application in case of order production, it is necessary to collect the following information about both the debtor and the applicant:

• Name, family composition;
• place of residence;
• information about sources of income;
• data about children who are in custody.

When delivering a verdict, the judge will be based on the specified data, material and marital status of both parties.

Claims production

Implies being open and adversarial in a dispute. The lawsuit is more universal: it is allowed to involve a lawyer, the plaintiff has the right to set the price of the claim, and the defendant has the right to defend himself in court, presenting evidence, and file appeals. Also, it is in the claim proceeding that cases are resolved with the collection of alimony arrears for periods that have been overdue.

Through the action proceedings, payments can be assigned both in firm terms and in combination with accruals from income. This makes it possible to prosecute defendants with unofficial or irregular earnings.

To start the proceedings, the plaintiff needs to collect a number of documents. The case itself is considered in the justice body and implies the holding of court sessions and the presence of both parties. Both parents have the right to provide evidence during the process, make objections and explanations.

Documents for legal proceedings

Before filing for alimony, you will need to collect a number of documents:

Originals:

• a certificate on the composition of the plaintiff's family;
• if information is available - a certificate of family composition from the defendant's place of residence;
• justification of the cost of maintaining the child;
• calculation of the amount.

Copies:

• civil passport of the plaintiff with pages on marriage registration and registration;
• birth certificates of children;
• certificate of registration or divorce.

These documents are attached to the application, the requirements for the content and form of which are regulated by Article 131 of the Code of Civil Procedure. On the basis of the application and the attached data, the judge will issue a verdict on the recovery of alimony.

Download a sample application to the court:

In the absence of marriage registration, it will be necessary to carry out the procedure for establishing paternity. If both parents are entered in the child's birth certificate, then only it will be used, if not, everything will be decided by mutual parental consent or genetic examination.

To consider the case, the testimony of both parents about the fact of paternity may be enough for the court, but if one of them does not agree, then a medical examination is appointed, the results of which are attached to the court materials.

In the table below, we have detailed how to file alimony with the magistrate's court - all actions are divided into stages:

Preparing copies

The civil passport of the plaintiff, the birth certificate of a minor child and a document on divorce or marriage.

Contacting the housing office at the place of residence

It takes a certificate on the composition of the family, including the characteristics of the housing, a list of persons registered in it.

Contacting the housing office at the debtor's place of residence

If the debtor's place of residence is known, then an application should be sent to the director of the local housing office to obtain a certificate. If the place of residence of the second parent is unknown, then a petition must be made to establish the whereabouts of the defendant.

Collecting information about child support

The Civil Procedure Code of the Russian Federation obliges the collection of information about the maintenance of the child. You can do this yourself, but it should be borne in mind that you will need evidence - checks and receipts, testimony. To justify costs for the future, references should be made to the officially assigned costs for the past. For example, indicate the amount spent on food for your child by enclosing receipts from previous months.

Collecting information about the debtor's income

This is especially true for individuals with unofficial or inconsistent sources. To receive payments for previous periods, you will need to indicate the movable and immovable property of the defendant. Thus, the court will be able not only to confine itself to general phrases about the fact of payments, but also to indicate specific property to which the bailiffs can refer during the execution of the sentence.

Registration and submission of the application

On the basis of Article 126 of the Code of Civil Procedure of the Russian Federation, the document must contain the name and address of the court, the personal data of the defendant and the plaintiff, claims for the recovery of alimony and evidence, and the calculation of the cost of the claim.

The plaintiff has the right to choose any court: both at his own place of residence and where the defendant lives. The documents must be provided in triplicate, since one of them is transferred to the working materials, the second - to the defendant, the third - to the applicant.

After receiving the documents, the magistrate's court will put a mark on the registration of the case and assign it a number by which it will be possible to find out the date of the hearings and monitor the progress of the process.

Issuance of a judgment

Within the regulated time frame for the consideration of the case, an order is issued, or a decision on the claim, depending on the procedure. The applicant will have to wait until the end of the appeal period and receive a court decision upon its entry into legal force. If the defendant appealed the decision to the court of appeal, then the case will go to action.

Appeal to bailiffs

It is necessary either to immediately apply to the bailiffs with an order, if this is a clerical proceeding, or to receive a writ of execution before that, if the issue has been settled through a claim proceeding.

When contacting these organizations and when submitting an application to the judicial authority, you must have your passport with you. To submit documents for the claim proceeding, you do not need to pay state fees and other fees.

Cost of filing an alimony claim

At the very beginning, you will need to pay a state fee, it is charged for filing a statement of claim. The amount of the state duty from the beginning of 2015 is fixed by the tax code of the Russian Federation. In accordance with article 333.19 of the Tax Code of the Russian Federation, a person will have to pay 150 rubles. The amount is subject to change. So, if the claim contains a requirement to collect alimony not only for children, but also for oneself, the size of the state duty will increase to 300 rubles. In case of filing a claim for the recovery of payments for the past period, the amount of the state duty will depend on the price of the application. The court can help to recover alimony for the last 3 years.

However, the plaintiff will not have to pay the state fee on his own. The Tax Code exempts a citizen applying to court for the appointment of alimony from this payment. This means that you do not need to pay the state duty when filing a claim for alimony. The amount in the prescribed amount will be recovered from the defendant.

Briefly about the implementation of the process

A statement of claim or an application for the provision of a court order must be submitted along with the package of documentation. The action can be performed in person or by mail. All documents must be submitted in 3 copies. One will be attached to the case, the second will be handed over to the defendant, the third will be registered and returned to the plaintiff.

With its help, the applicant will be able to track the progress of the case and, as well as receive additional information, the list of which includes:

• information about the judge;
• date of the meeting;
• time of proceedings.

In addition, on the basis of the above norms, a person will be able to receive a copy of the court decision and a writ of execution. After the trial is over, an appropriate decision is made. The rule applies when it comes to a claim. If the process is carried out in the form of an order proceeding, a court order is issued.

The decisions made can be appealed. One month is given for this. If a person has an objection to the court order, he must state them within 10 days. After these deadlines are completed, the court documents will be provided to the applicant. They are legally binding and must be executed immediately.

After a person receives a court order, he must go to the bailiff service. If a person is provided with a court decision, he must be contacted by the court office. A writ of execution will be provided on the basis of the document. After that, you will need to contact the bailiffs.

Terms of consideration

It is possible to file alimony in court until the child reaches 18 years of age. The funds will be credited immediately after the entry into force of the court order.

If an application is submitted for payments for several children, then the order will be valid until one of them reaches the age of 18. After that, the court will reconsider.

The term of the claim does not apply to alimony cases, which is regulated by Art. 107 of the RF IC. If the parent took possession of the right to pay when the child was four, and appealed to the court when he was already nine, then the payments will be assigned until his majority. In this case, the term of the claim is valid when applying for alimony for previous periods. That is, if in the last few years the debtor has not paid the due amount, then the parent has the right to obtain its recovery in court upon proof of deliberate evasion of payments by the debtor.

Child support litigation is an effective and reasonable step when one parent refuses to compromise on child support. The main thing is to comply with the regulated requirements and the sequence of actions.

The phrase "to file for alimony" means to go to court for the enforced recovery of maintenance from the obligated person. The overwhelming majority of such cases is the recovery of maintenance in favor of minor children.

When applying to the court, one should be guided by the Code of Civil Procedure. Article 23 of the Code of Civil Procedure prescribes, in the event of the recovery of alimony, to file an application with a magistrate. Article 29 of the Code of Civil Procedure reserves for the plaintiff the right to choose a court: according to his place of residence or the place of residence of the defendant. When the plaintiff does not know where the defendant is now, he has the right to send an application to the previous known address of residence or the address of the location of the property.

Simplified order

In the case when alimony must be collected on a minor child, Article 122 of the Code of Civil Procedure provides for the possibility of making it if the alimony is calculated as a share of income. Such a procedure is considered a simplified collection procedure, since it is enough for the parent to submit an application for the issuance of an order by the court, which, in turn, should contain:

• the name of the court;
• Name of the applicant, address, telephone;
• Name of the debtor, address, telephone number and place of work;
• the requirement to establish alimony maintenance and the circumstances confirming these requirements;
• list of attached certificates and documents.

Required documents

Requirements for alimony must be documented. To do this, attach to the application:

• birth certificates for children;
• a certificate that the child lives with the claimant (for example, a certified certificate from the HOA);
• receipt of state duty (size - 100 rubles);
• if any, a certificate of the debtor's income.

If the claimant does not have a certificate of the debtor's income (this happens in most cases), the court independently finds out the size of the salary of the second parent. The judge accepts the order within five days. It contains, in addition to data on the court, the claimant and the debtor, the amount of alimony payable monthly, and the details of the account. The debtor has the right to cancel the order: 10 days are allotted for this, counted from the moment of its delivery.

Consideration of a case in a claim procedure

If the second parent cancels the order, child support is required already by filing a statement of claim. The rules for determining jurisdiction and jurisdiction are the same for filing an application and for filing a claim.

The form of the claim and the content are approximately the same as that of the application for the issuance of an order. To the claim, in addition to the previously listed certificates, copies for the defendant are additionally attached. The claim needs to reflect how the alimony should be calculated: by establishing, by a fractional ratio to the salary, or by applying two methods together.

but the court can either increase or decrease these shares, based on the financial condition of the debtor... If, his earnings are not stable, or he receives a salary in the currency of another state, fixed alimony is established.

After examining the evidence presented, listening to the parties' comments, the court decides on the award of alimony. Article 211 of the Code of Civil Procedure establishes that the decision on the awarded alimony takes effect immediately.

A similar algorithm is applicable to collect alimony from other obligated persons, for example, from able-bodied children, from a spouse, from parents whose children, although they have reached 18 years of age, are needy and disabled, etc.

In these cases, it is necessary to prove the existence of a basis for the appointment of alimony. For example, adult children must prove that they are, firstly, disabled, and secondly, needy. Medical reports, certificates from social security authorities, etc. can be provided.

Sometimes one parent, most often the father, does not recognize the relationship with the child and for this reason refuses to pay child support. He is not and was not in a marriage union with a woman; he is not reflected in the child's birth certificate as a father. In this case, the woman must file a claim for the establishment of paternity and the appointment of alimony.

A claim is already being filed with the district court, two state duties are paid: 100 rubles for collecting alimony and 200 rubles for recognizing paternity. It is highly desirable to collect as many documents and certificates as possible, indicating that there was a personal relationship between the parties.

For this purpose, and joint photos, testimony, Internet correspondence or SMS correspondence. But the most powerful evidence is the results of a genetic examination. In the course of the proceedings, it is paid by the court, and if the results prove paternity, the burden of the cost will fall on the defendant. If the results are negative, it must be paid by the plaintiff after the decision is made by the court.

Execution documents are sent to bailiffs at the place of residence of the defendant. The bailiffs take measures to withhold alimony from the income of a person, in particular, by sending an appropriate order to the defendant's employer.

If the defendant does not work and the debt accumulates, a penalty is imposed on his property and sold. From the proceeds, the amount of alimony and the execution fee are taken away, the rest is returned to the defendant.