Vera, hello!

The court has the right, at the request of either party, to change the established amount of alimony or to release the person obliged to pay alimony from paying it (clause 1 of article 119 of the IC RF). The same rule establishes that the court, when changing the amount of alimony or when exempting from paying it, is also entitled to take into account another noteworthy interest of the parties.

It follows from this rule of law that, firstly, in order to reduce the amount of alimony, it is necessary to change the material or marital status of the parties or the presence of other circumstances that can be taken into account by the court when considering the case. And, secondly, the change (in the case under consideration - a decrease in the amount) of alimony is a right, not an obligation of the court. Accordingly, even the existence of circumstances that are the basis for reducing the amount of alimony does not guarantee a mandatory reduction in the amount of alimony.

Claims to reduce the amount of alimony are filed with the court at the place of residence of the defendant. Most often, a person obliged to pay alimony applies to the court with a demand to reduce the amount of alimony in connection with the birth of other children. However, the number of children in itself does not serve as a basis for reducing the amount of alimony.

Judicial practice shows that a change in the financial situation of the parties is far from sufficient to satisfy the claim. The fact is that parents are obliged to support their children, regardless of their financial situation. The court is obliged to take into account the existing financial situation of the child in order to prevent a decrease in his level. It should also take into account the equality of rights of all minor children and not allow some children to be in a worse financial situation than others.

In accordance with paragraph 1 of Art. 81 of the RF IC, the amount of the shares of the recovered alimony may be reduced or increased by the court, taking into account the material or marital status of the parties and other noteworthy circumstances. Therefore, the plaintiff's reference to the excess of the amount of alimony established by paragraph 1 of Article 81 of the RF IC is usually not taken into account by the judges.

Clause 14 of the Resolution of the Plenum of the Armed Forces of the Russian Federation of 10.25.1996 No. 9 explains that when the amount of alimony is changed or exempted from paying it (clause 1 of Article 119 of the RF IC), the court takes into account the material and marital status of the parties, as well as other noteworthy circumstances or the interests of the parties (for example, the disability of family members, to whom the party is legally obliged to provide maintenance, the onset of disability or the presence of a disease that prevents the continuation of the previous job, the child's employment, etc.).

Often, the amount of alimony is reduced in connection with the establishment of disability group I or II of the payer of alimony; in cases where there are persons in the plaintiff's family whom he is legally obliged to support. These are his disabled parents, other minor children, provided that the maintenance of the amount of alimony established by the court, they turn out to be less well-off than the children on whom the alimony was collected; the child for whom child support is withheld has reached the age of 16, is employed and receives an adequate income.

However, these circumstances are still not enough to reduce the amount of alimony. The court also takes into account the low income of the parent paying alimony, and the payment of alimony in the established amount is burdensome for him, as well as other circumstances.

When considering a claim for a reduction in the amount of alimony, the court must compare the material level of the parties. Therefore, in the event that a claim is filed against the alimony claimant for a reduction in alimony, in case of disagreement with the claim, evidence should be presented that his income is small, lower than the income of the plaintiff, and a decrease in the amount of alimony will entail a decrease in the material level of the child.

If the alimony payer lives with another family, the court should draw the attention of the court to the fact that the plaintiff is abusing the right, since living in the same family with the second claimant and their joint children, he takes care of them, has a common budget with the mother of these children, which allows them to keep the children in this marriage has an appropriate level of material security.

You should also confirm the need for child support costs. If he attends a paid school, sections, travels to competitions, etc., documents confirming such expenses should be provided to the court. The amount of alimony is determined taking into account the prohibition of reducing the material level of the child. Accordingly, a decrease in the amount of alimony may deprive the child of the opportunity to receive additional education... When applying to the court with a demand to reduce the amount of alimony, it is the plaintiff who must prove the grounds for the legality of his claims.

Vera, if you have any questions, you can write to me in the chat and order a personal consultation or preparation of a document on your question. All the best!

Online conference

How to Respect Child Support Rights?

The Commissioner for Human Rights in the Moscow Region has prepared a report "Compliance property rights children on alimony payments by their parents. "Addressing the topic is dictated by the severity of the situation with alimony payments to children by their parents. How to observe the property rights of children to alimony payments to parents in the Moscow region? What are the reasons for violations of rights in this area and how to eliminate them? other questions were answered by the Commissioner for Human Rights in the Moscow Region, Alexander ZHAROV.

Opening remarks, Alexander Zharov:

Good day! Thanks for the questions. I propose to start answering right away.

Answers on questions

Maxim Erekhin:

The theme of the conference is the observance of the rights of children to alimony payments by their parents. A special report of the Commissioner for Human Rights in the Moscow Region is devoted to this problem. Alexander Evgenievich, this is not your first special report on the rights of minors. In 2008, a report was prepared "On the observance of children's rights in the Moscow region", this year you have chosen special topic... What caused the interest in her?

Alexander Zharov:

Recovery of alimony is one of the most pressing issues of family law in the Moscow region and in Russia as a whole. This is evidenced by the increasing number of appeals to me and information coming from the authorities and local government, various media. I think my colleagues are Ombudsmen in other subjects Russian Federation will confirm that this is one of the most acute and urgent issues in the field of protecting the rights of children in our country. The 2008 special report you mentioned has already spoken about the need to take urgent measures to respect children's rights to alimony. A set of measures was proposed aimed at increasing the attention of society to its main institution - the family and necessary for the protection and protection of childhood, motherhood and fatherhood. Among them is the creation unified Concept family policy in the Moscow region and the adoption of the Federal Law "On the basics state support families in the Russian Federation. "Unfortunately, the state has not yet taken real steps in this direction, therefore it is necessary to once again draw the attention of the authorities and society to the problems of a child's realization of the right to a content sufficient to satisfy all his needs. some figures for the past year, confirming the relevance of the issue.In 2009, the courts of the Moscow region made about 40 thousand decisions on divorce, and most of them - with the appointment of child support payments. Regional courts considered more than 15 thousand claims for the recovery of child support. That is, at least 15 thousand children in our region did not receive alimony payments. Moreover, the dynamics are disappointing - over the past five years, the number of cases considered by the court has increased by 70%. proceedings for the collection of alimony. For 2007-2009 their growth was noted by 1.5 times. Agree, the statistics are alarming. It is in my power to help specific children, whose parents or legal representatives have turned to me with a complaint, but the question is broader. The identified systemic shortcomings must be eliminated so that all children, and not only those who turned to me or other government agencies for help, could grow and develop normally. The special report not only cites the facts of violations, but also provides an analysis of legislation and law enforcement, proposals for solving the problem.

Marianna Suslova:

Where can I find the text of the report?

Alexander Zharov:

Anna Sokolova:

Alexander Evgenievich! You analyzed the situation with the payment of child support in the Moscow region. What violations have been identified in this area?

Alexander Zharov:

In 2010, the Office of the Ombudsman, with the participation of state bodies and institutions, monitored the observance of the property rights of children to alimony payments by legal representatives of minors, judicial and law enforcement, as well as bodies for the execution of judicial decisions, the execution of sentences. The analysis showed that violations of alimony rights concern all categories of children and occur at all stages of implementation. The main violations committed by the legal representatives of children (parents, adoptive parents, guardians, heads of educational institutions) is the delay in applying for the appointment of alimony. Legal ignorance leads to the fact that existing norms are used little or not at all - legal representatives rarely apply for an increase in size child allowance for the period of the search for the debtor evading the payment of alimony, or they are not asked to establish a fixed amount of alimony for debtors who do not have permanent earnings or are unemployed. Disadvantages were also identified in the work of the bailiff service. Among them: unjustified termination of enforcement proceedings, violation of the terms of enforcement actions, loss of executive documents, failure to use all the powers available in accordance with the law to compulsory execution court decisions, failure to take measures to identify all property and income of the debtor. I should also note the insufficient interaction of the bailiff service with tax authorities, internal affairs bodies, bodies of the Federal Penitentiary Service, subdivisions of the bailiff service in other regions, which cannot but affect the results of work.

What do you think are the reasons for the current situation with the payment of child support for minors?

Alexander Zharov:

It seems that the main reasons are errors of legislation and imperfection of the practice of its application. Not the last place is occupied by the "human" factor - unprofessional, irresponsible, formal attitude of officials who are obliged by law to provide assistance to the child and his legal representatives in one form or another, which ultimately leads to violation of the rights of the child.

Igor Marshankin:

Is it fair to say that the main perpetrators of violations of the rights of minors are their parents or legal representatives?

Alexander Zharov:

Not certainly in that way. Among the perpetrators of violations of children's rights are not only parents or other legal representatives, but sometimes there are also state bodies, as well as other organizations, including employers of debtor parents. As I said, the rights of children of all categories and at all stages are violated. Parents are persons on whom the legislation is primarily entrusted with the implementation of children's rights, and it would seem that they should be vitally interested in ensuring that their child can grow normally without knowing the needs. Nevertheless, I have to state with regret the tendency of increasing violations of the rights of children by parents who do not pay alimony. There is no atmosphere of intolerance in society towards those who evade paying child support. Such parents, as a rule, do not meet condemnation of those around them for the scanty payments to their children, concealment of income and property from the accounting for the payment of alimony and arrears. This medal has another side - it is not that rare cases of untimely appeal for assistance in the implementation of the child's right to alimony. For example, a resident of the Ruzsky district U turned to me with a request for help. For a long time after the divorce, the child's father did not fulfill his responsibilities for his upbringing and maintenance. The applicant applied to the court with a claim for the recovery of alimony only 12 years after the divorce. Thus, she deprived her son of the opportunity to receive financial assistance in a timely manner. And she explained her actions by the fact that she did not want to be dependent on the child's father. There are cases when a parent, instead of collecting alimony in favor of the child, concludes a kind of deal with the debtor to compensate for the alimony payments in the form of refusing to meet with the child or observing other conditions. Of course, this violates the rights of a minor.

Artur Alekseev:

In difficult financial and economic conditions, in the presence of inflation, the indexation of funds paid for the maintenance of children is of particular importance. Is this norm observed?

Alexander Zharov:

Unfortunately, there are violations. In conditions of high inflation, the indexation of alimony payments is of paramount importance, including when determining arrears. However, these actions are carried out by bailiffs out of time, and the accounting departments of organizations where debtors work often do not make payments at all. Pursuant to article 117 Family Code RF, as well as Article 102 of the Federal Law "On Enforcement Proceedings", alimony is indexed by the administration of the organization at the place of their retention in proportion to the increase in the statutory minimum wage. As you know, the federal law "On the minimum wage" provides for two sizes of the minimum wage. One amount, the amount of which from January 1, 2009 is 4,330 rubles per month, is used to regulate wages and determine the amount of temporary disability benefits. The other is intended for calculating taxes, fees, fines and other payments made in accordance with the legislation of the Russian Federation. Alimony payments are classified as other payments. The minimum wage established for calculating taxes, fees, fines and other payments remains unchanged from January 1, 2001 to the present - 100 rubles. The Supreme Court of the Russian Federation in review judicial practice for the third quarter of 2006, he explained that in order to provide equal protection from inflation for persons receiving alimony in shares of earnings, and persons receiving alimony in a fixed sum, when indexing, it is necessary to be guided by the minimum wage of 4,330 rubles. To ensure the possibility of indexation, the amount of alimony collected by the court in a fixed amount must be set in accordance with a certain number of minimum wages, for example, 1.5 or 2 minimum wages. However, the courts do not always use this explanation when making decisions.

Egor Baikin:

To what extent, in your opinion, is the service of bailiffs working for enforcement proceedings related to alimony obligations efficiently?

Alexander Zharov:

The study of the observance of children's rights made it possible to identify the following shortcomings: non-observance of the deadlines established by law for the execution of enforcement actions to recover alimony; formalism in the conduct of enforcement proceedings; loss of executive documents; the end of enforcement proceedings in the presence of arrears in the payment of alimony; non-use in full of all powers granted by law to ensure the compulsory execution of acts on the recovery of alimony by debtors; failure to take measures to establish the amount of income for calculating alimony, the debtor's property for debt collection, its indexation; the lack of checks on the correctness of the calculation by the accounting department of the employer's organization of the debtor of deductions on account of alimony and debt, due control over the timeliness and completeness of transfers; unlawful refusal to initiate a criminal case against the debtor for malignant evasion from paying alimony; lack of answers to oral and written requests from claimants, including repeated ones, or their formal nature. These shortcomings have both objective and subjective reasons. It should be noted internal problems services of bailiffs-executors. The volume of enforcement proceedings for alimony has increased significantly. The remainder of the unfinished enforcement proceedings on the recovery of alimony in the Moscow region at the end of 2009, including due to the presence of arrears, amounted to about 40 thousand cases. The workload for one bailiff is from 500 to 2 thousand enforcement proceedings. High load, low wage(on average about 12 thousand rubles), the lack of the necessary professional training leads to staff turnover. Interaction between the Office of the FSSP of Russia for the Moscow Region and tax services is at a low level. Tax authorities in some municipalities The Moscow region does not provide on time information at the request of the bailiff service about the money of the alimony payer or is denied their provision. Sometimes, in the presence of reliable information about the individual entrepreneurial activity of the payer, an answer comes from the tax service about the absence of information about income. For this reason, the calculation of alimony payments arrears is based on the average wage in the country. The problem of finding out the debtor's additional income and collecting alimony from them is ineffectively solved by the bailiffs. Due to insufficient legislative regulation, including interagency cooperation, a big problem is finding a job for the alimony payer.

Natalia Sedova:

V The State Duma Federal Assembly The Russian Federation still has a draft law providing for the payment of alimony in a fixed amount, and not in shares of earnings. And earlier, similar proposals have already been submitted to parliament. How do you feel about the adoption of such a law?

Alexander Zharov:

Based on the interests of minors, I will certainly support the adoption of such a law. Legislation on the determination of the share of payments is outdated. They were applicable in a state in which citizens had, as a rule, one source of income. Combination jobs were strictly regulated by law. The situation has now changed. Any person can have an unlimited number of sources of income. And in practice, neither tax office, neither the bailiff-executor, nor the claimant of alimony are able to identify all of them. In these conditions, the only way out of the situation is the legislation provides for the determination of alimony in a fixed amount. On the other hand, the decision on the appointment of alimony in a fixed amount must be balanced, thoughtful and not violate the rights of either one or the other. It's no secret that not all regions of Russia can provide their residents with work and decent wages, people are forced to leave to work. In addition, they may have disabled dependent family members or difficult life situations.

The question is asked by Tatiana from Sergiev Posad. The father of the child is deprived parental rights... Does this mean that he is not obliged to pay child support?

Alexander Zharov:

No, it doesn't. In accordance with Article 71 of the Family Code of the Russian Federation, deprivation of parental rights means that the parent completely loses all rights based on the fact of relationship with the child. At the same time, deprivation of parental rights does not relieve parents from the obligation to support their child, that is, the father or mother must pay alimony, the amount and procedure for payment of which is established either in an agreement on the payment of alimony or in a court decision.

One more question from our guest from the Yegoryevsky district. The ex-husband works in several places. He refuses to increase the amount paid for the child, arguing that he does not want to support me either. But as far as I know, alimony is paid on all income. Am I right?

Alexander Zharov:

Alimony is withheld from all types of wages and some other income. In accordance with article 82 of the Family Code of the Russian Federation, the types of earnings and (or) other income that parents receive in rubles and (or) in foreign currency and from which alimony is withheld are determined by the Government of the Russian Federation. Clause 1 of the List of types of wages and other income, from which alimony for minor children is withheld, approved by decree Government of the Russian Federation of 18.07.1996 No. 841, it is determined that deduction is made from all types of wages (monetary remuneration, maintenance) and additional remuneration both at the main place of work and for part-time work. The resolution also lists other incomes from which payments for alimony obligations are made. The bailiff must establish whether the debtor has other work and other income, who will send a copy writ of execution at the place of work. At the same time, there are incomes that cannot be foreclosed. These include sums of money paid in compensation for harm to health or in connection with the death of a breadwinner; row compensation payments established Labor Code RF and some other income, a complete list of which is given in Article 101 of the Federal Law "On Enforcement Proceedings".

Mochalova Lidia Vasilievna:

The question is asked by Lidiya Vasilievna Mochalova from Elektrostal. Is it possible to withhold child support from a person who does not work anywhere?

Alexander Zharov:

Oh sure. You just need to distinguish between two categories of unemployed citizens - unemployed and unemployed. The definition of an unemployed person is given in the Law of the Russian Federation "On employment of the population in the Russian Federation". This is an able-bodied citizen who does not have work and earnings, registered with the employment service in order to find a suitable job, job seeker and ready to get started. The second sign - registration with the employment service, distinguishes an unemployed citizen from an unemployed - the latter does not have a job, but has not applied to government agency in order to obtain a certain status. Registration as unemployed and the lack of suitable work entails the appointment and payment of an appropriate allowance. In accordance with the Decree of the Government of the Russian Federation of July 18, 1996 No. 841 "On the list of types of wages and other income from which alimony for minor children is withheld" from unemployment benefits, alimony is withheld by a court decision, a court order or on the basis of a notarized agreement on payment of alimony. Withholding is made at the place of calculation of unemployment benefits. As for the unemployed person, it is necessary to determine whether he has other income. These include: all types of pensions, with the exception of the survivor's pension at the expense of funds federal budget; scholarships; temporary disability allowance; income earned from occupations entrepreneurial activity without education legal entity; income from the rental of property; income from shares and other income from participation in the management of the property of the organization (dividends, payments on equity shares); amounts received in compensation for harm to health; others. Alimony is withheld from all of the listed types of income. If it is not possible to reach a voluntary agreement on the payment of alimony, the issue will have to be resolved in court.

Alexander Evgenievich, let's talk about avoiding the payment of alimony. Agree that this problem is very urgent for our society. Such situations are not uncommon and, unfortunately, are not publicly condemned. Many who are faced with non-payment of alimony do not even try to enforce the law, go to court. What is the practice of bringing debtors to administrative or criminal liability in the Moscow region?

Alexander Zharov:

RF Code of administrative offenses contains two articles, according to which those who evade the payment of alimony can be prosecuted. This is article 17.14. "violation of the legislation on enforcement proceedings" and Article 5.35 "failure by parents or other legal representatives to fulfill their obligations to support and educate minors." Neither one nor the other establishes responsibility specifically for evading the payment of alimony, and Article 5.35, for example, cannot be applied to persons deprived of parental rights. And the sanction of the article - from 100 to 500 rubles - does not in any way serve the purpose of preventing the commission of offenses in the future. The application of Article 157 of the Criminal Code of the Russian Federation, which establishes punishment for malicious evasion from the payment of alimony, also raises a number of questions. Firstly, there is no definition of malice, which gives rise to unequal practice in different municipalities of the Moscow region. In some areas it is necessary to issue 2 warnings, between which 2 months must elapse, in others - 3 warnings, in others - 4, and between them must elapse from 1 to 6 months. As a result, after the first warning about bringing the debtor to criminal liability, it takes from six months to one and a half years before a criminal case is initiated for malicious evasion from the payment of alimony. At the same time, the debt is growing, and the duration of non-payment does not affect the malice. Children have not received alimony for years, and the debtor continues to evade payment. Secondly, under Article 157, only a person who is obliged to pay alimony on the basis of a court decision can be held criminally liable. What about the non-payment of the funds specified in the alimony agreement? The Family Code of the Russian Federation calls such a basis for establishing the amount and procedure for paying salaries for a child, and the Criminal Code still does not take this provision into account. I believe that amendments to the Administrative Code and the Criminal Code of the Russian Federation are long overdue. A study of the situation on the application of measures of a criminal-legal nature to persons who maliciously evade the payment of alimony shows that their number since 2005 has decreased by 20%. According to the Federal Penitentiary Service of Russia for the Moscow Region, in 2009, 871 people were serving sentences not related to imprisonment under Article 157 of the Criminal Code of the Russian Federation. Including 515 people were serving correctional work, 187 of them evaded execution, including 34 were on the wanted list. 200 people were sentenced to compulsory labor. Shied away from compulsory works- 39. The court sentenced to the above types of punishment conditionally, with the application of Art. 73 of the Criminal Code of the Russian Federation 155 people, with the application of a deferral - 1. According to the Moscow regional court, in 2009, for the evasion of punishment by 316 convicts, the punishment was changed to a more severe one. Many citizens' applications contain complaints about the unlawful refusal to initiate a criminal case under Art. 157 of the Criminal Code of the Russian Federation on formal grounds. Although, in practice, even the application of measures of criminal liability does not solve the problem of restoring the property rights of children in terms of the payment of alimony. Let me give you an example. For 7 years A. has maliciously avoided paying alimony for the maintenance of a child who is in the Sofya orphanage in the Naro-Fominsk municipal district. The administration of the children's institution annually unsuccessfully appealed to the bailiff-executor with a statement to initiate a criminal case under Art. 157 of the Criminal Code of the Russian Federation. Only 5 years later, the case was initiated, and A. was brought to criminal responsibility. The punishment is 1 year of compulsory work. The court decision was not executed. Alimony was not received. The debt also persists. And again, for the third year now, statements on the initiation of a criminal case under Art. 157 of the Criminal Code of the Russian Federation. A. does not work, continues to maliciously evade the payment of alimony. For 7 years the child has been in children's institution money for the payment of alimony has not been credited to his account even once.

Dmitry Ovsyannikov:

Alexander Zharov:

Unfortunately yes. The greatest number of violations of the rights to alimony payments is noted among children left without parental care, living in children's institutions of various departmental affiliations. According to the Ministry of Education of the Moscow Region, the total number of orphans and children left without parental care is more than 16 thousand. Annually, by a court decision, about 3 thousand minors are left without parental care with the appointment of alimony. According to the guardianship and guardianship authorities, more than 6 thousand children have the right to alimony. And only one in four of them is transferred money regularly. Among those living in child care institutions, this figure is even lower - from 1% to 20%. Most of the pupils do not receive alimony or receive it irregularly. Their size is very low - from 300 rubles to 1 thousand rubles a month. These are, mainly, deductions from pensions, unemployment benefits or from the earnings of those sentenced to imprisonment in penal institutions. In order to study the situation and provide assistance in protecting the rights of these children, the Commissioner for Children's Rights in the Moscow Region and the Chief Bailiff of the Moscow Region conducted joint visits to children's institutions with visits to orphanages, boarding schools, orphanages in Ramenskoye, Noginsky, Ruzsky, Shchelkovsky, Istrinsky, Kolomensky, Mytishinsky, Mozhaisky, Odintsovsky, Leninsky, Stupinsky, Serebryano-Prudsky, Orekhovo-Zuevsky municipal districts and urban districts: Zheleznodorozhny, Podolsk, Elektrostal, Kolomna, Orekhovo-Zuevo. Systemic violations of children's rights to maintenance on the part of parents were revealed in almost all institutions. The most common reason for non-compliance with the law is the untimely appeal of children's institutions to court to change the claimant. At the Korobcheevskaya special (correctional) boarding school of the VIII type of the Kolomna municipal district, at the time of the visit, there were 11 court decisions on the recovery of alimony in favor of the guardianship and guardianship authorities, while the institution did not take any action to change the claimant, and enforcement proceedings were not initiated. Failure to collect alimony for children left without parental care sometimes occurs through the fault of children's institutions due to the lack of professionalism of employees. The organization of control over the observance of the rights of children left without parental care is entrusted to the guardianship and guardianship authorities. However, most of the guardianship and guardianship authorities in municipalities exercise little control. They, as a rule, do not go to court to change the claimant, they do not solve this issue in a timely manner with the guardians, bailiffs about changing the form of the child's arrangement and changing legal representative do not inform, reconciliation at the location of children entitled to alimony is not carried out. In enforcement proceedings, the claimants continue to be educational authorities, guardianship and guardianship authorities or children's institutions in which minors do not live for a long time or have never lived at all. One of the obstacles in the proper implementation of the legislation is the insufficient level of interaction of the guardianship and guardianship authorities, children's institutions with the bailiff service. It should be noted that violations of the rights to alimony for children left without parental care occur repeatedly, are malicious in nature and are closely related to their violation. housing rights... Therefore, the question of the possibility of using the offsetting of the value of the share of ownership of the debtor's only dwelling place to pay off the alimony debt should be studied.

What measures, in your opinion, should be taken first of all to start solving the problem?

Alexander Zharov:

I would highlight several directions in which you need to move at the same time. First, the improvement of legislation. Adjustment is equally important law enforcement practice... It is required to debug the clear interaction of the Federal Bailiff Service with the internal affairs bodies, tax authorities, Federal Service execution of sentences, regional ministries of education, health and social protection population. The process of a child's realization of the right to maintenance and upbringing should not stall at any stage. In my opinion, it would be advisable to create structural units specializing in the conduct of enforcement proceedings concerning property, personal non-property and other rights and legal interests of minors. And finally, in order to achieve uniformity of judicial practice on alimony obligations, its generalization and explanations are required. The Supreme Court RF on issues that were not reflected in the previously issued Resolutions of the Plenum of the Supreme Court of the RF.

What changes in legislation do you propose?

Alexander Zharov:

In addition to the additions to the Criminal Code of the Russian Federation and the Code of Administrative Offenses of the Russian Federation, which we have already discussed today, I propose the development of a federal law "On the Basics of State Support for Families in the Russian Federation" and the Concept of Family Policy in the Moscow Region. In my opinion, it is necessary to legally extend the payment of alimony until the child reaches 23 years old if he is studying in educational institution full-time and does not have independent earnings. V Federal law"On Enforcement Proceedings" I propose to expand the list of restrictions on debtors, including introducing a ban on transactions with property requiring state registration, without agreement with the bailiff service; in the absence of arrears in alimony payments, determine the possibility of ending the enforcement proceedings on the basis of sending the writ of execution to the place of work of the debtor not earlier than the first payment to the recoverer; at the end of the enforcement proceedings in connection with the direction of the documents of the enforcement proceedings on territoriality, retain the previously imposed restrictions on the debtor. It is worth considering in deeper the issue of the possibility of offsetting alimony arrears and registering the minor's ownership of a part of the only living quarters owned by the debtor, if he does not have other property that could be foreclosed, does not have sources of income, does not take measures to employment.

Closing remarks, Alexander Zharov:

Thanks everyone!

The opinion of the conference participants may not coincide with the position of the editors

Hello! The situation is as follows: divorced, I receive child support in court in the amount of 1/4. The ex-husband is married again, in which there is a child (1.5 years). The ex-spouse filed a lawsuit to reduce alimony to 1/6 (his current wife did not file any applications, everything was only on behalf of the ex-spouse). I was advised to compare the income of my ex-husband's family and mine, in order to clearly show that the interests of my child will suffer with a decrease in alimony. Question: for this calculation, do I need to divide the income of my ex-husband (whether his current spouse is working is unknown) minus the alimony I receive for three of them (ex-spouse, his wife and their child), or should I divide only into my husband and his child? And is it necessary to take into account my salary (I never married again) when calculating income for my child?

2013-03-20 09:14:26

Kosha replies:

, The amount of alimony that the child's father pays for you is specified in the law, this is one fourth of the parent's salary. But there is such a loophole for you. In clause 2 of Art. 81 of the Family Code clearly states that the amount of payments can be increased or decreased by the court, taking into account the financial situation or other important circumstances deserving attention. Based on this wording, you can count on the fact that the court can take your side, thanks to these very noteworthy circumstances. In your case, you will need to prove that you, well, do not have enough of the amount that you receive. Refer to the fact that you have a small salary, health problems, the child does not have enough money to purchase some things he needs, and in general it is very difficult for you to give the child everything you need alone, say everything you can, what you can think of and remember. There is a high probability that the court will take your side.

2013-03-21 10:11:34

Irishka82 replies:

, Currently, a law on the procedure for paying alimony is under development, that is, the state takes upon itself the payment of a certain strictly established amount for the maintenance of the child left by the father. This amount will be awarded by the court and then recovered from the father by the bailiffs. This practice of providing children is already used in many developed countries. In our country, the practice of collecting alimony is still extremely imperfect, daddies have been running away for years from helping in the maintenance of their children, doing all sorts of machinations, receiving certificates of minimum wages, as a result of which mothers receive from one to two thousand for the maintenance of their children, which is extremely not enough. Currently, the practice of detaining persons who have not paid alimony is widely used - at customs checkpoints when departing abroad and other methods.

2013-03-24 17:04:37

TeMkA answers:

, Good afternoon. You yourself do not need to do any calculations, they will do it for you bailiffs or in court. No one has deprived your ex-spouse of the right to apply for a reduction in the amount of alimony paid, this is his full and legal right, besides, considering the fact that he has another small dependent child. In addition, the wife of your ex-spouse, being legally married, has the right to file alimony for him, so as not to infringe on the rights of her child. In any case, your ex-spouse's application will be reviewed and all steps taken into account before lowering your child's alimony payments. necessary calculations and only after that the appropriate decision will be made. So you don't have to do it yourself, just waste your time and nerves. Good luck to you and your child.

They are a tool that reliably guarantees timely financial security for children, even if parents give up their rights or are forcibly deprived of them. Violation of the rights of the child is not allowed under both the Family Code and the Criminal Code, since the state has built an effective system of coercion and punishment of the perpetrators.

It should be understood that the article describes the most basic situations and does not take into account a number of technical points. To solve your particular problem, get legal advice on housing issues by phone hot lines:

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This approach is not accidental: guarantees of the realization of children's rights are enshrined in Art. A parent for whom alimony obligations have been established by a court or agreement often infringes on the child's rights in one of the following ways:

• failure to pay alimony- ignores their obligations, hides from the representative of the child, as well as from state bodies;
• violation of the order of payments- ignores deadlines, delays without paying compensation. This violation may also arise through the fault of third parties, for example, the payer's employer.

Types of violations

Dodging involves trying to avoid financial responsibility entirely. Even trying to act in the field of the law, such persons can hide their income and property. Evasion can occur both in case of refusal to voluntarily support children, and after a court decision (in accordance with), when such activity may entail liability before the law.

The second form of violation is expressed in the regular disruption of payment deadlines without good reason... Such situations arise, as a rule, due to the fault of the defendant, who untimely makes transfers to the plaintiff or to the FSSP. But, since the penalty can be imposed in the form, by filing the order of the bailiff to the employer, a violation may arise through the fault of the owner of the organization or the accounting department.

Penalties for violation

The law established responsibility for non-payment of alimony on your child. Extensive law enforcement and judicial practice allows forcing even the most sophisticated defaulters to restore justice:

1. Collection can be levied on the personal property of the payer.
2. The debt is constantly increasing () and cannot be written off due to the limitation period.
3. For persons who for a long time and maliciously evade alimony, it is provided criminal penalty on - child support evasion... Again, even when serving a sentence, the person is obliged to pay alimony and pay off the body of the debt.
4. and, considering the procedure for traveling abroad, restrict defaulters in the freedom of movement outside Russia. Moreover, there is administrative and criminal liability for leaving.
5. The amount of alimony can be increased, fixed, even over amounts, provided by law in the usual way.

The application of Article 157 of the Criminal Code of the Russian Federation (first of all, part 1) is permissible only in cases where the court does not have any other legal opportunities to influence the situation, since when serving a sentence (when wages are paid in prison), share payments may become too low.

Also, the use of this article can significantly complicate the life of the child himself. In particular, the device in law enforcement agencies, for civil service requires checks of the applicant's relatives. However, in February 2017, a bill was introduced to the State Duma concerning tax evaders. According to its provisions, with a search period of more than 1 year, the payer is recognized as missing and enforcement proceedings in regard to him stops.

Late payment of maintenance entails not so serious penalties, to a greater extent affecting the debtor in rubles. Administrative responsibility for non-payment of alimony is established within the framework article 115 of the RF IC... Every day, starting from the date of the delay, an additional penalty is charged on the amount 0,5% ... If, as a result of the delay, additional costs have arisen, the payer is obliged to pay them in full.

Conclusion

Family and criminal law strictly refer to the violation of the property rights of children. The punishment for non-payment of alimony is provided for by the laws:

1. Compulsory collection of alimony, with the involvement of the employer, as well as the sale of property and other income of the payer.
2. Criminal punishment, in cases where other measures of coercion no longer work.
3. Article 107 gives children the right to receive money, regardless of the time that has passed since the violation.
4. Even minor violations of the terms entail the accrual of penalties, designed to establish the legal procedure for payments.

The child's right to alimony should be understood as the child's ability to receive, in a certain form and manner, support funds from parents, as well as other obligated persons (brothers, sisters, grandfathers, grandmothers), provided by family legislation, if it is impossible to receive support from their parents from birth to coming of age.

Thus, parents are obliged to support their minor children, and children have the right to be supported by their parents. If it is impossible to receive support from parents, minor children have the right to receive support from brothers, sisters, grandfathers and grandmothers. The obligation of these persons is subsidiary in nature.

There are two procedures for the payment of funds for the maintenance of children (alimony): by court decision and by agreement of the parties (compulsory and voluntary).

The agreement can be declared invalid according to the rules of the Civil Code of the Russian Federation (Chapter 9 § 2 "Invalidity of transactions"), as well as in the event of a significant violation of the interests of the child. The scientific literature highlights certain conditions invalidity.

1. Failure of a party to participate in the agreement.
2. The discrepancy between will and will.
3. Illegal content.
4. Failure to comply with the form.
5. Significant violation of the interests of the child.

Failure to participate in the transaction means that the person who entered into the agreement has not reached the age of majority, or the consent of the legal representative to conclude the agreement has not been obtained (by a child aged 14 to 18 years), or the transaction was made by a person who is incapacitated.

The discrepancy between the expression of the will and the will is that the will of the party to the transaction is expressed incorrectly. This may relate to the content of the transaction, the procedure and form of collecting alimony, consequences, etc.

The will can be distorted due to delusion, violence, threat, deception, confluence of difficult circumstances, etc.

The illegality of the content consists in a violation of the norms of family and civil law, the foundations of law and order and morality. The imaginary, feigned nature also testifies to the illegality of the agreement.

Failure to comply with the written form indicates the nullity of the transaction.

A significant violation of the interests of the child may, in particular, consist in the determination of alimony in a smaller amount than provided for in Art. 81 of the RF IC.

The court resolves the issue of alimony in the event of a dispute and only if the child or his legal representative applies to established order with a written statement.

The grounds for going to court and collecting alimony may be:

1. evasion of one parent or both from the maintenance of the child;
2. inadequate maintenance (late payments, irregularity, failure to provide a living wage, etc.);
3. non-compliance of the alimony agreement with the law;
4. refusal to participate in additional costs.

In the legal literature, the absence of an agreement on the payment of alimony is also named as a reason.

It seems that the absence of an agreement is not a basis for collecting alimony, parents can support their children without drawing up an agreement. In a judicial proceeding, alimony is collected in the event that the parents evade the maintenance of their children and there is a properly executed written request to the court with a request for the recovery of alimony.

Thus, V. applied to the court with a claim against M. for the recovery of alimony for the maintenance of her daughter. In substantiating the claim, she pointed out that M. was allocating insufficient funds to support her daughter. M. did not acknowledge the claim and went to court with a counterclaim to V. for the recovery of alimony, referring to the fact that V. did not provide material assistance to support his daughter, did not work and had no income.

The court dismissed the initial and counterclaim on the basis that both parents live together and both are involved in supporting the child. It appears that the court made a lawful and well-founded decision 1 Perovsky Archive district court the city of Moscow. Case No. 2-1439 / 2002..

Living together and participating in the upbringing and maintenance of the child, each of the parents fulfills their duty to support the child. Neither family nor civil procedural legislation does not contain a list of persons entitled to go to court. It must be assumed that the following persons have the right to apply to the court with a claim for the recovery of alimony:

1. one of the parents in case of evasion of the other parent from the payment of maintenance (Art. 60, 80 of the RF IC, Art. 52 of the Code of Civil Procedure of the RF);
2. adoptive parents (article 137 of the RF IC, article 52 of the Code of Civil Procedure of the Russian Federation);
3. guardian (trustee) (clause 1 of article 84, article 150 of the SK, article 52 of the Code of Civil Procedure of the Russian Federation);
4. adoptive parents (clause 1 of Art. 84, Art. 153 of the RF IC, Art. 52 of the Code of Civil Procedure of the Russian Federation);
5. the institution where the child is under full state care (Art. 147 of the RF IC, Art. 52 of the Code of Civil Procedure of the Russian Federation);
6. body one KIT and guardianship (Article 80 of the RF IC);
7. Prosecutor (Article 45 of the Code of Civil Procedure of the Russian Federation);
8. actual caregiver;
9. the child himself upon reaching the age of 14 (Article 56 of the RF IC).

The claim for the recovery of alimony must be expressed in writing (Article 131 of the Code of Civil Procedure of the Russian Federation).

There are two procedures for enforced recovery of alimony: simplified and claim.

It is necessary to take revenge, as in the simplified (order), and in suit proceedings the judge initiates a civil case, since he makes a ruling on the acceptance of the application.

Concept court order contained in Art. 121 of the Code of Civil Procedure of the Russian Federation. Under court order is understood court order, issued by a judge alone on the basis of an application for the recovery of monetary amounts or for the reclamation of movable property from the debtor.

A court order can be issued in the following cases.

1. If the claim for the recovery of alimony for minor children is not related to the establishment of paternity, contestation of paternity (motherhood) or the need to involve other interested persons.
2. If the obligated person does not object to the stated claim.
3. If it is possible to resolve a dispute about the right on the basis of the submitted documents (Articles 122, 124-125 of the Code of Civil Procedure of the Russian Federation).

In the legal literature, it is indicated that the simplified procedure concerns the recovery of alimony in proportion to earnings. The judicial practice adheres to the same approach. In clause 11 of the Resolution of the Plenum of the Supreme Court of October 25, 1996 No. 9 "On the application by courts of the Family Code of the Russian Federation when considering cases of establishing paternity and collecting alimony" it is stated that, on the basis of a court order, alimony for minor children cannot be collected in solid sum of money, since the solution of this issue is associated with the need to verify the presence or absence of obligations, with which the law connects the possibility of such collection.

It seems that this view is erroneous, not based on the law. A court order can also be issued for the collection of alimony in a fixed amount, subject to the requirements of Art. 122-125 Code of Civil Procedure of the Russian Federation.

In this case, the judge is obliged to check whether the claim for the recovery of alimony in a fixed amount or in a larger amount than provided for by the law is confirmed by the documents attached to the application for the issuance of a court order, and whether the debtor objects to this.

If such a requirement is confirmed by documents and there are no objections from the debtor, there are no grounds for refusing to issue a court order and considering the case in a claim procedure.

There are several independent stages of order production.

1. Acceptance of the application and initiation of order proceedings (Art. 123-124 of the Code of Civil Procedure of the Russian Federation).
2. Issuance of a court order or ruling on refusal to issue a court order (Article 126 of the Code of Civil Procedure of the Russian Federation).
3. Consideration of an application for the cancellation of the order (if an application is submitted).

Whether the judge is obliged to make any procedural document the law does not say about the adoption of the application.

Judicial practice shows that judges issue a ruling on the acceptance of an application for the issuance of a court order. This definition fixes the time of acceptance for proceedings, from which the period for sending a notice to the debtor and providing a response to the application is calculated. There are other implications associated with the definition.

It seems that the judge should make a ruling on the acceptance of the application and the initiation of the order proceedings.

When deciding whether to accept an application for the issuance of a court order, the court must proceed from the following conditions.

1. Are the form and content of the application complied with (Article 124 of the Code of Civil Procedure of the Russian Federation).
2. The declared claim for the recovery of alimony should not be associated with the establishment of paternity, challenging paternity, the need to involve interested parties (Article 122 of the Code of Civil Procedure of the Russian Federation).
3. Are there any documents confirming the stated requirement (Article 124 of the Code of Civil Procedure of the Russian Federation).

If at least one of the specified conditions, the judge refuses to accept the application for the issuance of a court order.

In accordance with paragraphs. 2 p. 1 art. 333.36 part 2 of the Tax Code of the Russian Federation, art. 80 of the Code of Civil Procedure of the Russian Federation, plaintiffs in cases of the recovery of alimony are exempted from paying state fees when filing statement of claim... It seems that the applicants also have such a privilege.

"On the basic guarantees of the rights of the child in the Russian Federation" when considering in courts cases on the protection of the rights and legitimate interests of the child government duty not charged.

After accepting the application and initiating an order proceeding, the judge issues a court order within five days from the date of receipt of the application.

However, the judge can also refuse to issue a court order. The grounds for refusal to issue a court order are:

1. the debtor's disagreement with the stated requirements;
2. the presence of a dispute about the right, which cannot be resolved on the basis of the submitted documents (Article 125 of the Code of Civil Procedure of the Russian Federation).

The court order is made in duplicate.

The debtor has the right, within ten days from the date of receipt of the order, to submit an objection regarding its execution.

In this case, the judge cancels the issued order.

Another judicial procedure for collecting alimony - claim... An authorized person applies to the court with a statement of claim for the recovery of alimony. The basis for filing a claim is also the failure of parents to provide support to their children voluntarily. A claim is filed if:

1. there is a dispute about the right that cannot be resolved on the basis of the submitted documents;
2. the obliged person does not agree with the stated claim for the recovery of alimony;
3. the requirement to recover alimony is associated with the establishment of paternity, challenging paternity, the need to involve interested parties;
4. it is necessary to resolve the issue of reducing or increasing the amount of the levied alimony;
5. it is necessary to collect alimony for disabled adult children;
6. the issue of collecting alimony in a fixed amount is being resolved, which cannot be resolved on the basis of the submitted documents;
7. additional costs incurred due to exceptional circumstances must be reimbursed;
8. the claim was filed simultaneously with the claim for divorce, deprivation of parental rights;
9. the claim has been presented to the adoptive parent upon cancellation of the adoption;
10. children live with each of the parents;
11. it is necessary to invalidate the agreement on the payment of alimony, or change, terminate the agreement.

The statement of claim for the recovery of alimony must meet the requirements of Art. 131 Code of Civil Procedure of the Russian Federation. The judge shall issue a ruling on the acceptance of the statement of claim for court proceedings and the initiation of a civil case.

The amount of alimony collected on children in court is determined in Art. 81, 83 RF IC.

Alimony can be recovered in proportion to earnings, either in a fixed amount, or simultaneously in shares and in a fixed amount.

It should be noted that if alimony is paid voluntarily, then it can be provided by providing things (Article 104 of the RF IC). The court, however, cannot collect alimony in the form of providing things.

In a fixed amount, alimony is collected if:

1. the parent has an irregular, variable earnings, other income;
2. the parent receives income in kind or in foreign currency;
3. there is no earnings;
4. collection in a share relationship is difficult or impossible;
5. children stayed with each of the parents.

It seems that the subjects of alimony relations are the child (as an authorized person) and parents (as an obliged person). If the child has not reached the age of 14, legal representatives act on his behalf.

In the case when the child has reached the age of 14, it seems that he is an independent participant in the legal relationship, as indicated in the literature 2 Civil procedure/ Ed. V.A. Musina et al., P. 8..

However, in court session a legal representative must also participate, and in the absence of one, a representative appointed by the guardianship and guardianship authority.

Judicial practice shows that alimony is usually collected in favor of a legal representative. It appears that alimony should be collected in favor of the child in a separate bank account. Now, clause 2 of Art. 60 of the RF IC provides for the possibility of crediting no more than 50% of the income to the child's account.

This situation is difficult to explain. First, alimony has a purpose. Secondly, such a rule does not provide for complete control over the use of funds for their intended purpose.

Judicial practice shows that in some cases, concealment of income and other evasion from the payment of alimony is caused by the debtor's assertion that the recoverer spent funds not for the maintenance of the child, but for other purposes. The debtor demands that the alimony be credited to an account opened in a credit institution in the name of the child. This will ensure proper protection property rights of the child.

In scientific and educational literature the opinion was expressed that the amount of the levied alimony is imperfect, and it was supposed to collect alimony if there is more than one child in the family in the amount of 1/6 of the parent's earnings for each of them.

It seems that the establishment of this amount of alimony will not fully meet the interests of the child. Some parents have several sources of income, but, for example, only one is known. It is from this income that alimony is withheld. Their size is usually insignificant.

It seems that in order to ensure the interests of the child, a lower limit of alimony should be established in the amount of three times the minimum wage. The decision must indicate the recovery of alimony for one child in the amount of 1/4 of the earnings, but not less than three times the minimum wage, or in an amount that allows providing a living wage.

In addition, as Professor M.V. Antokolskaya, the parent with whom the child lives, spends on him not only cash, but also labor of maintenance and education 3 Antokolskaya M.V. Alimony obligations: author. dis .... cand. jurid. sciences. M., 1988.S. 19.... The fulfillment of the alimony obligation should consist in imposing on the separately living parent the personal care of the maintenance and upbringing of the child.

Some scientists also propose to collect alimony and a lump sum, taking into account the material capabilities of the persons liable for alimony and the needs of the child. It seems that such a determination procedure will also not ensure the interests of children. In addition, according to such rules, you can change the amount of alimony. When resolving issues on the recovery of alimony, the courts have difficulties.

In law enforcement, difficulties arise regarding the issues of reducing, increasing the amount of alimony, participation in additional costs, etc.

According to paragraph 2 of Art. 81 of the RF IC, the amount of alimony, determined in shares, may be reduced or increased taking into account the material or marital status of the parties and other noteworthy circumstances. Based on this provision, it can be concluded that the legislation does not establish clear criteria for changing the amount of alimony. This situation creates certain difficulties in resolving the dispute.

According to professors A.I. Parchment and Sh.D. Chikvashvili, the court has the right to change the amount of alimony if: (1) the obliged person has other children who are less well-off; (2) the debtor is a disabled person of I and II groups; (3) children are employed and have sufficient income 4 Chikvashvili Sh.D. Property relations in family. M .: Legal literature, 1976.S. 73-75, 86-87..

These circumstances cannot be considered exhaustive.

In each specific case, the court must carefully examine the issue of the grounds for changing the amount of alimony.

Financial position should be understood as the presence and amount of income of the obliged person, the presence and amount of income of the authorized person. Depending on the income, the court can reduce or increase the amount of alimony, determining it in proportion to the income. It seems that in this case, alimony can be recovered in a fixed amount of money.

The marital status of the parties means the presence in the payer's family of persons to whom he is legally obliged to provide maintenance. We are talking about finding other children dependent on the alimony payer (for example, children from a second marriage or elderly people who need help from their parents, etc.). In this case, the amount of alimony can be reduced. And if the second marriage is not dissolved and the father lives with the child from the second marriage, can the requirement be satisfied? After all, it is possible to file a claim with the aim of infringing on the interests of the child from the first marriage. Judicial practice shows that in such cases the court rejects the claim.

Parents may also be obliged to support their disabled adult children. This maintenance obligation is imposed only if several conditions are met:

• incapacity for work of adult children;
• need for material support;
• the ability of parents to provide such assistance.

Disability means the incapacity of a person due to

health, perform labor duties, engage in entrepreneurial and other income-generating activities. Disability is confirmed by the conclusion medical and social expertise... Disabled persons include persons who are disabled of groups I, II and III (disabled persons of group III are partially disabled). In addition, men aged 60 and over and women aged 55 and over are considered disabled.

The need for material support depends on the specific circumstances and is an evaluation category. Need means that an adult's own income is insufficient to meet the necessary needs (food, clothing, medical treatment, etc.).

The amount of alimony is determined by agreement of the parties, and if it has not been reached - by the court. When determining the amount of alimony, the court proceeds from the material and family situation of children and parents.

It seems that alimony for adult children should also be determined by the parents' ability to support their children.

As Professor I.A. Pokrovsky, parents are obliged to provide children, and children to parents, content depending on their property status 5 Pokrovsky I.A. Main problems civil law... M. Statut (in the series "Classics of Russian civil law"), 1998. P. 191.... This provision should be supplemented by Art. 85 RF IC. Otherwise, parents themselves may find themselves in need of support.

The parent cannot be fully exempted from the alimony obligation. It is only possible to reduce the amount of alimony. It is necessary to establish a lower limit to which it is possible to reduce the amount of alimony. Other reasons for changing the amount of alimony include disability, finding a child in full state support... If a child is married or declared emancipated before reaching the age of 18, the collection of alimony is terminated.

If the child is left without parental care and is sent to a children's institution, alimony is credited to the accounts of these institutions and is recorded separately for each child (Article 84 of the RF IC).

In addition to paying child support, parents may be required to bear additional costs due to exceptional circumstances. Article 86 of the RF IC, which provides for this rule, is relatively specific, and therefore causes difficulties in its application. Such a duty may be imposed on the parents if:

• children have not acquired full legal capacity or are incapacitated adults;
• there are exclusive liabilities caused by illness, injury or other damage to health;
• the child's need for additional material support in addition to alimony has been established.

Participation in additional costs is possible by concluding an agreement or by compulsory judicial procedure in the absence of an agreement.

Exceptional obligations are primarily related to the need to restore health.

It seems that the court may also include other reasons for the need for additional costs as exceptional circumstances.

For example, the continuation of studies in a music school, classes in a sports school and other needs of the child in education. Even in the event that these types of assistance were provided to the child before the dissolution of marriage, separation, and other circumstances that became grounds for refusing to bear such costs. Meanwhile, judicial practice testifies that the education of minor children is the responsibility of the parents.

Need means the inadequacy of all the income received by the child to reimburse the costs of restoring health and other exceptional needs.

Family law does not exclude the possibility of collecting funds for additional costs that will be incurred in the future.

The need for additional costs and their amount must be confirmed by appropriate documents: conclusion medical commission and other evidence.

If, when considering the case on the recovery of funds for the maintenance of an adult capable person, it is established that the plaintiff has committed against the defendant willful crime or there is evidence of the plaintiff's unworthy behavior in the family (former family), the court in accordance with paragraph 2 of Art. 119 of the RF IC has the right to refuse to collect alimony.

Under a crime, the commission of which may be the basis for refusing a claim, it should be understood as any intentional crime against life, health, freedom, honor and dignity, sexual integrity, other rights of the defendant, as well as against his property, which must be confirmed by the entered into force by the verdict of the court.

The plaintiff's abuse of alcohol or drugs, cruelty to family members, and other immoral behavior in the family (former family) can be considered as unworthy behavior that may serve as a basis for refusing to recover alimony.

When considering cases of this category, it is necessary to take into account when an intentional crime was committed or there were facts of unworthy behavior in the family, the nature, severity and consequences of their commission, as well as the further behavior of the father 6 Resolution of the Plenum of the Supreme Court of the Russian Federation "On the application by courts of the Family Code of the Russian Federation when considering cases of establishing paternity and recovering alimony" // Bulletin of the Supreme Court of the Russian Federation. 1997. No. 1. P. 8..

The most complete is the definition formulated by Professor M.V. Antokolskaya. In her opinion, alimony obligations are a legal relationship arising on the basis of legal facts, by virtue of which some family members are obliged to provide maintenance to other family members, and the latter have the right to demand this maintenance. At the same time, the author does not take into account that alimony obligations take place not only between family members, but also between former family members (for example, in the case when alimony is levied on a child left to live with one of the parents after divorce, or on adults disabled children living separately from their parents and in need of assistance).

The right to alimony is an object of protection, and the recovery of alimony is a way of protection. The collection of alimony is not a measure of family responsibility, since the obliged person is not assigned any additional responsibilities. The obligation of parents to pay maintenance to children is provided for by law, since children are not able to financially support themselves on their own. The state obliges parents to support their children, but it itself provides assistance to children and their parents. However, this assistance is clearly not enough.

Many problems arise in alimony cases, some of which can be resolved by the guardianship and guardianship authorities.

It seems that the guardianship and trusteeship body is obliged by virtue of the provisions of Art. 37 of the Civil Code of the Russian Federation to exercise control over the expenses of alimony not only if the child is in a child care institution, but also if the child is in the family of a guardian (trustee), foster parent. There are no suggestions from the guardianship and guardianship authorities when considering cases. There are also no joint actions with bailiffs-executors in the execution of decisions on the recovery of alimony. Guardianship and trusteeship authorities by virtue of the provisions of Art. 37 of the Civil Code of the Russian Federation are obliged to participate in ensuring the child's right to alimony.

Examples from judicial practice show the direct action of the rules family law aimed at protecting the child's right to receive parental support.

So, O. applied to the court with a claim against S. for the recognition of paternity in relation to the child and the recovery of alimony for his maintenance in the amount of 1/4 of the earnings and other income of the defendant, who voluntarily refuses to formalize his paternity in the registry office, education and does not support the child.

The decision of the district court approved settlement agreement, under the terms of which the defendant acknowledges his paternity in relation to minor child, born on December 10, 2004 to the plaintiff, and undertakes to pay in favor of the plaintiff for the maintenance of the child alimony in the amount of 3000 rubles. monthly, from May 1, 2005 until the child reaches the age of majority, and the plaintiff refuses claims to the defendant for the recovery of child support in the amount of 1/4 of the earnings, starting from April 18, 2005. The proceedings were terminated.

The presidium of the regional court canceled the ruling of the district court in terms of determining the amount of alimony on the following grounds.

In accordance with Part 2 of Art. 39 of the Code of Civil Procedure of the Russian Federation, the court does not approve the settlement agreement of the parties if it contradicts the law or violates the rights and legitimate interests of others.

The amicable agreement approved by the court in this case contradicts the requirements of Art. 60, 81, 103, 117 of the RF IC and violates the legitimate interests of the plaintiff's minor child.

According to Art. 80 of the RF IC, parents have the right to independently determine the procedure and form for providing maintenance to minor children on the basis of an agreement on the payment of alimony.

At the same time, the terms of the agreement concluded by the parents on the maintenance of a minor child must comply with the requirements of the law.

In particular, the amount of alimony established by such an agreement cannot be lower than the amount of alimony that could be established by the court when one of the parties to the agreement filed a claim for the recovery of alimony (clause 2 of article 103 of the IC RF). The child has the right to receive maintenance from his parents and other family members in the manner and in the amount determined by Art. 60 of the Family Code of the Russian Federation.

As follows from the materials of the case, the defendant is a civil servant with a stable income. In such circumstances, the amount of alimony payable by the defendant for the maintenance of his minor son should be determined according to the rules of Art. 81 of the RF IC, i.e. cannot be less than 1/4 of the earnings and (or) other income of the defendant.

The defendant did not present any evidence proving the existence of those provided for in paragraph 2 of Art. 81 of the RF IC of the grounds for reducing the amount of alimony established by law. The materials of this civil case do not contain any information about the family and financial situation of the defendant, although the clarification of these circumstances was necessary to assess the legality of the terms of the settlement agreement concluded by the parties.

In addition, having accepted the terms of the amicable agreement on the establishment of alimony in a fixed sum, the court did not take into account the requirements of paragraph 2 of Art. 117 of the RF IC, according to which, when collecting alimony in a fixed amount, the amount of alimony is set in an amount corresponding to a certain number of minimum wages, and is subject to indexation in proportion to the increase in the statutory minimum wage, which should be indicated in the operative part of the decision.

By virtue of the above requirements of the law, the defendant's argument that he agrees to pay for the maintenance of his son amounts exceeding RUB 3,000 was also recognized as unfounded. per month, subject to the submission by the plaintiff of reports on the actual costs incurred by her for the maintenance of the child.

Taking into account the foregoing, the judgment in the contested part is subject to cancellation. The rest of the above definition was not subject to verification due to the lack of grounds provided for by law. 7 Resolution of the court of the supervisory instance No. 44g-105 // Information bulletin of the cassation and supervisory practice of considering civil cases by courts and justices of the peace Arkhangelsk region for the 3rd quarter of 2006..