Literally at the end of 2017, the Plenum of the Supreme Court of the Russian Federation adopted a new resolution explaining to the courts the practice of applying legislation on the recovery of alimony for persons in need of material support.
In this article, taking into account the changes of October 1, 2019, we will consider the main points regarding the application of this resolution in terms of the application of the rules of law, jurisdiction, payment of state fees, collection of alimony in a fixed amount.
Basic moments
As the Plenum points out, the main document governing the procedure for the payment of alimony, the grounds for the occurrence of such payments and their termination, as well as the circle of persons entitled to receive alimony payments and are obliged to pay them, is section five of the Family Code of the Russian Federation.
As before, voluntary agreements between stakeholders have the prerogative. If it is impossible to agree on the procedure for paying alimony by agreement, the interested party has the right to apply to the competent court for their appointment.
As for the generic jurisdiction of cases related to alimony payments, from October 1, 2019, justices of the peace have only jurisdiction over cases on the issuance of a court order for the recovery of alimony in shares of earnings or other income. All other disputes related to the appointment of alimony, with a change in its amount, exemption from payment, as well as overdue payments are now subject to the jurisdiction of the district courts.
The issue of jurisdiction of alimony cases for district courts was considered separately. The plenum indicates that the district courts consider cases of collecting alimony as a court of first instance, if, simultaneously with such a demand, a claim is made that is not within the jurisdiction of a magistrate. For example, the establishment of paternity or motherhood, deprivation of parental rights to children or their restriction.
Also, it is the district courts that have jurisdiction over disputes arising from challenging agreements on the payment of alimony. These can be cases of changing the terms of such an agreement, its termination or invalidation.
Supreme Court officially enshrined the rule that claims with simultaneously declared demands for the recovery of alimony and for the establishment of paternity can be filed at the place of residence of both the defendant and the plaintiff. The same rule applies when any interested person entitled to alimony declares independent requirement only on the recovery of alimony.
Also, jurisdiction should be determined if a claim for the recovery of alimony is filed in the interests of persons entitled to receive alimony. This rule applies when making claims for the appointment of alimony and for the establishment of maternity.
However, if the alimony payer wants, for example, to change the amount of alimony collected from him or claims to be exempt from their payment, arrears on them, then he needs to file a claim only at the place of residence of the person to whom he pays alimony (the recipient of alimony).
Order and action proceedings
The magistrate, who is considering cases for the recovery of alimony, now uses only one type in his work judicial proceedings: order production.
The judge issues court order on the recovery of alimony, when only the claim for their recovery is declared in a percentage of wages and other income. Such a requirement must be formalized in the form of an application for a court order. If a person goes to court with a statement of claim, and not with an application for a court order, the judge returns the claim back.
No court order is issued if the applicant wants a flat-rate alimony. When considering disputes on the appointment of alimony in a fixed amount, many circumstances are subject to clarification. This requires full-fledged court hearings, summoning and questioning the parties on the merits of the dispute, and examining evidence.
The Justice of the Peace refuses to accept an application for a court order in the following cases:
- When the debtor is already paying alimony in favor of other persons.
- When a claim is made to receive alimony in a lump sum or at the same time in a lump sum and in percentage terms.
- When, with a demand for the recovery of alimony, a demand is made for the appointment of alimony not from the moment of appeal, but for the previous period (in case of evasion from the provision of maintenance).
If, after receiving the court order, the debtor submits objections to it within ten days, the judge, by his ruling, cancels such an order and explains to the claimant his right to apply to district court with a claim for the appointment of alimony in the general order.
When there is a concluded and notarized agreement on the payment of alimony between the parties, it is possible to apply to the court for the recovery of alimony only in cases where, simultaneously with the demand for the appointment of alimony, demands are made to declare the agreement invalid or to terminate it.
Payment of state fees
In accordance with tax laws, when filing applications for the recovery of alimony or forfeit on them for minor children, the applicant is exempted from paying state duty... The amount of the state duty is subsequently collected from the alimony payer.
Want to be the first to read useful articles? Subscribe to the page on Vkontakte!However, if a person paying alimony wants to change the amount of alimony payments or receive an exemption from payments, then they are paid a state duty, in accordance with the established rules, based on the cost of the claim:
- If there is a requirement to reduce the amount of alimony collected, then the state duty is calculated based on the amount by which payments and payments are reduced or increased, but not more than for a year.
- If a claim is made for exemption from the payment of alimony, then the state duty is calculated based on the totality of the remaining payments and issues, but not more than for a year.
Involvement of other persons to participate in the case
When the case for the recovery of alimony is considered by the court in the course of action proceedings, then if it is established that the defendant paid alimony to other persons, such citizens receiving alimony are subject to involvement in the case as third parties without independent claims.
Recovery of alimony in a fixed amount
What circumstances does the court investigate when appointing alimony in a fixed sum of money? In this case, the general rule is that the amount of alimony is determined based on the material and marital status of both parties to the alimony dispute. In this case, the court also takes into account other, relevant to the case, circumstances of each of the parties to the dispute.
When the financial situation of the parties is determined, then all types of their income are taken into account (wages, income from entrepreneurial activity, from the use of the results of intellectual activity, pensions, benefits, payments in compensation for harm to health and other payments), as well as any property belonging to them. (including securities, shares, contributions made to credit institutions, share in authorized capital limited liability companies).
When establishing the family status of the alimony payer, the facts of the presence of other minors or disabled adult children or other persons whom he is legally obliged to support are subject to clarification.
It should be borne in mind that under disabled adults who have the right to apply for alimony payments, it should be understood as persons who are disabled I, II or III groups, as well as citizens of retirement age.
Circumstances that the court may take into account when determining the amount of alimony may be the following facts that deserve attention: disability or other incapacity for work of the defendant, the recipient of alimony has resumed employment.
What facts are established by the court
In addition to minor children, the following categories can also apply for alimony:
- Children who have reached the age of majority, but are disabled for various reasons, disabled parents in need of assistance,
- Disabled needy spouse.
- The second spouse, who does not have enough material resources, to care for a common child who is disabled until the age of 18 or for a disabled child from childhood of group 1. The same rule applies to ex-spouses caring for such children.
- Disabled ex-spouses, in the presence of certain circumstances.
- Other persons, the list of which is given in Art. 93 - 97 of the RF IC (brothers, sisters, grandfathers, grandmothers, grandchildren, pupils, stepsons, stepdaughters, stepfathers, stepmothers).
When collecting alimony in favor of these categories of persons who need help, the court shall establish the financial situation of the person claiming to receive maintenance. Its sufficiency for a full-fledged existence is determined, taking into account age, health status and other circumstances. Is the person able to meet his vital needs, such as the purchase of necessary food, medicine, payment for housing and communal services.
The amount of alimony in a lump sum is determined by the court on the basis of the equality of rights of both parties, taking into account their material capabilities and other circumstances relevant to the case. If it is difficult to determine all the important factors that may affect the amount of alimony assigned, it is necessary to consult an experienced one.
Alimony based on the size of the subsistence minimum in the territory of residence of the recipient of alimony for the corresponding population group: children, able-bodied population, pensioners. If such values are not established in the subject of residence, then the subsistence level for the Russian Federation is taken.
Alimony indexation
You also need to know that the alimony established by the court in a fixed amount of money is subject to mandatory indexation. Indexation is carried out by bailiffs, organizations, and other persons who pay salaries, pensions or other payments to the alimony payer.
The size and procedure for indexing can be established in an agreement on the payment of alimony, which the parties have the right to conclude with a notarial certification. If it does not specify a condition on the indexation of alimony, then the general order above.
Child support
It is not uncommon for a child support payer to receive high wages. The amount of alimony paid can significantly exceed the needs of the children.
In this case, if alimony is already collected from the payer in accordance with a judicial act, he can apply to the court with an application for transferring up to 50 percent of the alimony to the child's account opened in the bank. However, it should be borne in mind that the Supreme Court takes the position that the very fact of paying high alimony is not a reason for transferring half of them to the child's account.
The payer is obliged to prove that the transfer of a part of the amount of alimony to be paid to accounts opened in the name of minors in banks will be in their interests.
As can be seen from the explanations of the Supreme Court, the transfer of part of the alimony to the child's account should be done in his interests, and if there is evidence of alimony by the recipient.
If it is proven that the money was spent not on the child, but, for example, for the needs of the recipient, the court has the right to make a decision on transferring 50 percent of the alimony collected to the child's bank account.The money on this account can be used for the needs of the child only with the prior consent of the guardianship authorities at the place of residence of the child.
but arbitrage practice contradictory and often happens that the courts decide to transfer part of the alimony to the child's account and in the absence of evidence of their misuse.
This is substantiated by the court's indication of a significant excess of the average monthly amount of alimony paid to the subsistence minimum for children in the constituent entity of the Russian Federation and the minimum wage.
Alimony for disabled adult children
Family law provides for the collection of alimony not only in favor of minor children, but also in favor of those who have reached the age of majority.
Persons who meet certain criteria have the right to receive alimony on this basis. They must be disabled and in need of material support.
Who has the right to sue in court
Such claims can be brought to court by adult citizens themselves, who meet the above requirements. In cases where such citizens are recognized by the court as incapable, then the right to receive alimony in their favor is given to the guardians.
According to the position of the Supreme Court, adult able-bodied children studying in educational institutions on a full-time basis are not entitled to claim alimony based on their need to receive such support.
Field practice
However, judicial practice in the regions may differ from the explanations of higher courts... For example, Sverdlovsk regional court, in October 2019, in his Information Letter on topical issues of consideration of disputes about alimony, expressed the position that there are exceptions to this rule.
On the example of one of the considered cases, the court, having established the need for an able-bodied adult child to receive alimony, collected it from the other parent living separately. At the same time, the parent with whom the child lived died before the child came of age.
The court took into account the plaintiff's insignificant income in the form of a survivor's pension and a scholarship, and also established the impossibility of employment due to the workload of studies and sports.
Important! Judicial practice does not exclude situations when a separately living parent, having stopped paying alimony when the child reaches the age of majority, may again be involved in alimony payments, but on other grounds.
Updated 03.28.2018 20:30
Federal regulatory legal acts:
Art. 80 "Responsibilities of parents for the maintenance of minor children"
Art. 81 "The amount of alimony collected for minor children in judicial procedure"
Art. 83 "Recovery of alimony for minor children in a fixed sum"
Ch. 17 "Procedure for the payment and collection of alimony"
Art. 82 "Types of earnings and (or) other income from which alimony for minor children is withheld"
Decree of the Government of the Russian Federation of July 18, 1996 N 841 "On the List of Types of Wages and Other Income, from which Alimony for Minor Children is Withheld"
Federal Judicial Practice:
"Review of judicial practice in cases related to the recovery of alimony for minor children, as well as disabled adult children," approved. The Bureau The Supreme Court RF 13.05.2015
Clauses 8, 11, 12, 14, 16, 24, 25 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated 25.10.1996 N 9 "On the application by the courts of the Family Code of the Russian Federation when considering cases on establishing paternity and recovering alimony"
When the proceedings on divorce and the recovery of alimony for children are postponed in connection with the appointment of a period for reconciliation of the spouses, it is necessary to find out whether the defendant is involved in the maintenance of the children. If the court finds that the defendant does not fulfill this obligation, he is entitled in accordance with Art. 108 of the RF IC to issue a resolution on the temporary recovery of alimony from the defendant until the final consideration of the case on divorce and recovery of alimony.
(Clause 9 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of 05.11.1998 N 15 "On the application of legislation by the courts when considering cases of divorce")
Overdue pecuniary obligation can be performed by a third party even in the event that its occurrence is associated with the personality of the debtor, for example, the payment of a debt for alimony. A creditor under a pecuniary obligation is not obliged to verify the existence of an assignment, on the basis of which a third party fulfills the obligation for the debtor, and has the right to accept performance in the absence of such an assignment. The amount of money received by the creditor from a third party as performance cannot be reclaimed from the creditor as unjust enrichment, except in cases where the debtor also fulfilled this monetary obligation or when the performance by the third party and the transfer of the creditor's rights to him were recognized by the court as invalid (Art . 1102 of the Civil Code of the Russian Federation).
(Clause 20 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of 22.11.2016 N 54 "On some issues of application general provisions Of the Civil Code of the Russian Federation on Obligations and Their Performance ")
Within the meaning of paragraph 1 of Art. 108 of the RF IC, temporary (i.e. preliminary) recovery of alimony for minor children before the court makes a decision on the case is allowed at any time after the court accepts an application for the recovery of alimony for processing, if there is reason to believe that the defendant does not fulfill the obligation to support the children ... The norm of art. 108 of the RF IC is an additional legislatively established guarantee of the rights of minors to receive maintenance during the period of judicial consideration of a dispute on the recovery of alimony, which is of particular importance in a situation where trial for one reason or another, it is being delayed (in this case, the trial in the case lasted more than three years).
(Determination of the Supreme Court of the Russian Federation of 15.10.2013 N 80-KG13-10)
As legally significant circumstances for changing the amount of alimony established by the court, Art. 119 of the RF IC names a change in the material or marital status of the parties, as well as other noteworthy interests of the parties. When considering the dispute, the court indicated that in this case the parties to the alimony obligation are minor children, one of whom is disabled, and the parent is the payer of alimony. In violation of the provisions of Art. 119 of the Investigative Committee of the Russian Federation, the court did not establish the financial situation of minor children and other noteworthy interests of children, but proceeded from the interests of only one party - the alimony payer, in connection with which the refusal to satisfy the plaintiff's claim to increase the amount of alimony for the maintenance of minor children is not based on the law.
(Determination of the Supreme Court of the Russian Federation of June 25, 2013 N 4-KG13-16)
Clause 2 of Art. 107 of the RF IC, which determines the period for which alimony can be collected, is aimed at balancing the interests of minor children and their parents in the framework of alimony relations, does not contain uncertainty and cannot be considered as violating the constitutional rights of the applicant in a particular case.
(Definition The Constitutional Court RF dated 05.04.2016 N 704-O "On the refusal to accept for consideration the complaint of the citizen Sharmay Elena Vladimirovna on violation of her constitutional rights paragraph 2 of Article 107 of the Family Code of the Russian Federation ")
Clause 1 of Art. 113 of the RF IC, which determines the duration of the past period for which a debt on alimony payable can be collected, in particular, on the basis of a court decision issued for enforcement on the recovery of alimony writ of execution, is aimed at ensuring a balance of interests of minor children and their parents in the framework of alimony relations and does not violate the constitutional rights of the applicant.
(Determination of the Constitutional Court of the Russian Federation of January 29, 2015 N 108-O "On the refusal to accept for consideration the complaint of citizen Yury Anatolyevich Kuzmin on violation of his constitutional rights by paragraph 1 of Article 113 of the Family Code of the Russian Federation")
Clause 1 of Art. 113 of the RF IC, which determines the period for which alimony can be collected, and clause 2 of Art. 115 of the RF IC, which establishes a penalty as a measure of responsibility for late payment of alimony, the amount and procedure for its calculation (paragraph one), are aimed at ensuring the timely fulfillment of obligations to pay alimony, as well as the balance of interests of the recipient and the payer of alimony and do not violate the constitutional rights of the applicant.
(Determination of the Constitutional Court of the Russian Federation of 20.11.2014 N 2596-O "On refusal to accept for consideration the complaint of citizen Igor Vyacheslavovich Golubev on violation of his constitutional rights by paragraph 1 of Article 113 and paragraph 2 of Article 115 of the Family Code of the Russian Federation")
Practice of the Moscow City Court:
The court exacted from the defendant in favor of the plaintiff a forfeit for the delay in the performance of alimony obligations for maintenance minor child(Clause 2 of Art. 115 of the RF IC), since the defendant, knowing about the need to pay alimony by the decision of the magistrate, did not make payments for enforcement proceedings.
By virtue of the provisions of the current legislation, the alimony debtor is obliged to provide evidence of the payment of the alimony in full within the prescribed time frame, the absence of his fault in the occurrence of the debt, as well as the presence good reason non-payment of alimony, which the applicant did not do. Arguments that child support arrears have arisen due to illegal actions from the side bailiffs- perpetrators, did not find their confirmation at the hearing.
The court collected from the defendant alimony for the maintenance of the child in a firm sum of money, since the defendant is a fully able-bodied person, but does not have a permanent income; the defendant did not provide the court with evidence of the validity of the absence of earnings and the presence of dependents.
(Determination of the Moscow City Court dated January 23, 2015 N 4g / 7-146 / 15)
The fact that the defendant has a permanent source of income is the basis for collecting alimony in a certain part of the earnings by virtue of Art. Art. 80, 81 RF IC.
(Determination of the Moscow City Court dated January 21, 2015 N 4g / 7-142 / 15)
According to the certificate from the place of work, the defendant (the father of a minor child) is employed and has a regular income, therefore, the court exacted alimony from the defendant in favor of the plaintiff (mother of the child) in the amount of 1/4 of earnings and (or) other income on a monthly basis.
The defendant is the father of a minor son and is obliged by law to support him. The argument that the defendant does not have a regular income, and therefore the alimony must be collected in a fixed amount, is not supported by the case file. In accordance with Art. 107 of the RF IC, alimony was recovered from the defendant from the moment the plaintiff applied to the court.
The court satisfied the plaintiff's claim and collected from the defendant a forfeit resulting from the delay in the payment of alimony for the maintenance of a minor child.
The defendant has an arrears in the payment of alimony, which is confirmed by the calculation of the forfeit made by the plaintiff, verified and recognized as mathematically correct by the court, not contested by the defendant. There is no evidence to support the existence of objective obstacles to the timely payment of child support. Consequently, according to Part 4 of Art. 113 of the RF IC, part 2 of Art. 115 of the RF IC, the alimony debt was formed through the fault of the defendant himself.
(Appellate ruling of the Moscow City Court dated 06.07.2015 in case N 33-23372 / 2015)
Briefly about the important:
Claim
Basic:
On the recovery from the defendant of alimony for the maintenance of a minor child (minor children);
On the recovery from the defendant of a forfeit for alimony payments / for late payment of alimony.
Additional:
Divorce with the defendant;
On determining the place of residence of a minor child with the plaintiff;
On the determination of the order of communication between the defendant and the child (with children);
On the obligation of the defendant to hand over the child (children) to the plaintiff;
On establishing the paternity of the defendant;
On the division of the spouses' property;
About recovery from the defendant Money for the rest and treatment of children;
On the permission of a minor child's temporary travel outside the Russian Federation without the consent of the defendant;
On the imposition of a ban on the departure of a minor child with the defendant outside the Russian Federation without the consent of the plaintiff.
This material considers only lawsuit on disputes on the recovery of alimony for minor children.
At the same time this category disputes can be considered in the order of clerical proceedings according to the rules of Ch. 11 Code of Civil Procedure of the Russian Federation. In sect. I Review of judicial practice in cases related to the recovery of alimony for minor children, as well as for disabled adult children, approved. The Presidium of the Supreme Court of the Russian Federation on 05/13/2015 (hereinafter - the Review, approved by the Presidium of the Supreme Court of the Russian Federation on 05/13/2015) states that the overwhelming majority of cases on the recovery of alimony for underage children are considered by justices of the peace in the order of clerical proceedings (Chapter 11 of the Code of Civil Procedure of the Russian Federation).
According to par. 5 tbsp. 122 of the Code of Civil Procedure of the Russian Federation, the requirements for which a court order is issued include the requirement to collect alimony for minor children, not related to establishing paternity, challenging paternity (motherhood) or the need to involve other interested parties. In clause 11 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of 10.25.1996 N 9 it is explained that, on the basis of a court order, alimony for minor children cannot be collected in a fixed amount, since the solution of this issue is associated with the need to verify the presence or absence of circumstances with which the law binds the possibility of such a recovery (clauses 1 and 3 of article 83, clause 4 of article 143 of the RF IC). If the judge has no grounds for satisfying the application for the issuance of a court order (for example, if the debtor pays alimony by court order for other persons or makes payments for others executive documents), the judge refuses to issue the order and explains to the applicant his right to bring a claim on the same request. In sect. II Review, approved. The Presidium of the Supreme Court of the Russian Federation on May 13, 2015, drew attention to the fact that, in the order of the order, the claim for the recovery of alimony for a minor child for the period before going to court cannot be considered (clause 2 of Art. 107 of the IC RF).
In judicial practice, there are rare cases when the plaintiff only claims to collect alimony from the defendant for a minor child (for example, the Determination of the Moscow City Court of 16.12.2015 N 4g-12481/2015, the Cassation ruling of the Moscow City Court of 17.03.2015 N 4g / 2- 2577/15, Appellate ruling of the Moscow City Court dated 09.14.2015 in case N 33-32963 / 2015).
Usually, such a claim is presented as part of other requirements, for example, on divorce, on the division of the spouses' property, on the determination of the child's place of residence and the procedure for communicating with the defendant (for example, the Appellate ruling of the Moscow City Court of 10.26.2015 in case N 33-39458 / 2015).
There are cases of simultaneous claims by the plaintiff to deprive the defendant of parental rights and recover alimony (for example, the Appeal rulings of the Moscow City Court dated 06.05.2015 in case No. 33-14400 / 2015, dated 14.04.2015 in case No. 33-12281), as well as deprivation of parental rights and the recovery of a penalty for late payment of alimony (for example, the Appellate ruling of the Moscow City Court of 07/06/2015 in case N 33-23372 / 2015).
As a rule, these are former spouses (for example, the Appellate rulings of the Moscow City Court of 06.07.2015 in case N 33-23372 / 2015, of 24.03.2015 in case N 33-9616 / 2015) or persons who were in a de facto marriage relationship, terminated at the time the plaintiff went to court (for example,).
A dispute regarding the payment of alimony may also arise between spouses who are in a registered marriage at the time of the consideration of the case. Usually, in such cases, an additional claim is the requirement to dissolve the marriage (for example, the Appellate ruling of the Moscow City Court of 10.26.2015 in case N 33-39458 / 2015).
There are rare cases of filing a claim by the guardianship and guardianship authority (for example, the Appellate ruling of the Moscow City Court of 04/14/2015 in case N 33-12281).
The defendant in the claim under consideration is a parent who does not provide his minor child (children) with content (clause 2, Article 80 of the RF IC), i.e. does not provide the plaintiff with regular monthly material assistance for the maintenance of the child, does not voluntarily pay alimony.
In this case, alimony for the maintenance of children can be collected from the defendant regardless of whether the parents of the children are married or not; the subject of proof in this case includes the fact of improper maintenance of children by the defendant (Determination of the Moscow City Court dated July 30, 2014 N 4g / 7-7572 / 14). The fact that the defendant lives with the plaintiff and the children in the same room does not indicate that the defendant has provided funds for the maintenance of the children in the established amount (Determination of the Moscow City Court of 07.02.2014 N 4g / 5-501 / 2014). The provision by the defendant of one-time financial assistance to the plaintiff also does not testify to the proper performance by the defendant of his obligations to support his minor child (for example).
For this category of disputes, the defendant may submit a counterclaim (counterclaim). For example, on the determination of the place of residence of a minor child (minors) with the defendant (for example, the Appellate ruling of the Moscow City Court of March 30, 2015 in case N 33-10372 / 2015), on the determination of the procedure for communicating with the child (for example, the Cassation ruling of the Moscow City Court from 01.29.2016 N 4g-429/2016, Appeal ruling of the Moscow City Court dated 12.03.2015 in case N 33-7905 / 2015), on determining the procedure for exercising parental rights (for example, the Appellate ruling of the Moscow City Court dated 30.01.2015 in the case 33-2835), on the recovery from the plaintiff of alimony for the maintenance of a child (children) (for example, the Appeal ruling of the Moscow City Court of 10.26.2015 in case N 33-39458 / 2015).
It is possible to file a counterclaim for divorce (for example) and section common property spouses (for example, the Cassation ruling of the Moscow City Court dated 10.07.2015 N 4g / 2-7091 / 15).
As a general rule, if the parents of the child have not reached an agreement on the payment of alimony, they are recovered by the court in proportion to the earnings and (or) other income of the defendant on the basis of Art. 81 of the RF IC. As the established practice shows, the courts make such decisions in most cases (for example, the Appellate ruling of the Moscow City Court of 10.26.2015 in case N 33-39458 / 2015). The court can make such a decision if the plaintiff asked to recover child support on the basis of Art. 81 of the RF IC (for example, the Appellate rulings of the Moscow City Court of 09/14/2015 in case N 33-32963 / 2015, of 09/04/2015 in case N 33-30043 / 2015), as well as if the plaintiff asked to collect alimony in solid sum of money, but the court found no reason to determine the amount of alimony according to the rules of Art. 83 of the RF IC (for example, the Cassation ruling of the Moscow City Court of 10.07.2015 N 4g / 2-7091 / 15, the Appellate ruling of the Moscow City Court of 22.04.2015 in case N 33-12282).
The size of the shares is set in clause 1 of Art. 81 of the RF IC and is monthly: one quarter of the parent's earnings and (or) other income of the parent - for one child, one third - for two children and half - for three or more children. In sect. III Review, approved. The Presidium of the Supreme Court of the Russian Federation on 05/13/2015 clarified that alimony in the amount of one third of the parent's earnings and (or) other income is subject to collection not for each child, but for two minor children.
It is important to take into account that the court has the right to change (reduce or increase) the above-mentioned size of shares, if required by the material, marital status of the parties, other noteworthy circumstances and interests of the parties (Clause 2, Article 81 of the IC RF).
So, the court may take into account the disability of family members, to whom the party to the dispute is obliged to provide maintenance according to the law, the onset of disability, the presence of a disease that prevents the continuation of the previous work, the child's employment or employment entrepreneurial activity(Clause 14 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of 25.10.1996 N 9).
The amount of alimony recovered by a court decision in proportion to earnings is not indexed in proportion to the increase in the subsistence level in accordance with Art. 117 of the Investigative Committee of the Russian Federation (Section III of the Review, approved by the Presidium of the Supreme Court of the Russian Federation on May 13, 2015). Such indexation, by virtue of the provisions of Art. 117 of the RF IC, the amount of alimony established in a fixed amount is subject to.
When collecting alimony in proportion to the earnings and (or) other income of the defendant (Article 81 of the RF IC), it is necessary to take into account that the defendant can pay alimony on the basis of a court order (court decision) for other minor children and in favor of another claimant.
In this case, the court establishes the amount of alimony for the plaintiff's child, based on the amount of alimony established by law for all the children of the defendant (that is, taking into account the children for whom he pays alimony on the basis of a court decision and the child for whom alimony is being collected). The practice when the amount of alimony is set taking into account the alimony collected from the debtor on the basis of a court decision (court order) for other minor children is recognized as correct by the Supreme Court of the Russian Federation (Section III of the Review, approved by the Presidium of the Supreme Court of the Russian Federation on 05/13/2015).
At the same time, if, when considering the claim, the court did not have information that the defendant was making payments under other executive documents, including for the maintenance of a minor child from his first marriage, alimony for the plaintiff's child may be established without taking into account this circumstance (Appeal determination of the Moscow city court from 14.09.2015 in case N 33-32963 / 2015).
In some situations, when there is no agreement between the parents on the payment of alimony, the court may decide to collect alimony for minor children in a fixed amount or simultaneously in shares and in a fixed amount. The cases in which the court can collect alimony in this way are named in paragraph 1 of Art. 83 RF IC. Taking into account the explanations given in Sec. III Review, approved. By the Presidium of the Supreme Court of the Russian Federation on 05/13/2015, these are cases:
When a parent who is required to pay child support has irregular, fluctuating earnings and / or other income (for example, doing business). Irregularity of earnings can be confirmed by a certificate of the defendant's income, work record book (for example, Determination of the Moscow City Court of 04/06/2016 N 4g-0838/2016);
When a parent who is obliged to pay alimony receives earnings and (or) other income in whole (in part) in kind or in foreign currency;
When a parent who is obligated to pay child support has no earnings and / or other income (for example, there is no permanent job).
If at the time of the hearing the defendant has a job, the court assesses its nature and determines whether it is permanent or urgent. It should be borne in mind that the presence of a permanent job for the defendant cannot serve as an unconditional basis for refusing to satisfy the demand to recover alimony from such a person in a fixed amount of money;
Other cases when the collection of alimony in proportion to the parent's earnings and (or) other income is impossible, difficult or materially violates the interests of one of the parties.
According to Art. 83 of the Investigative Committee of the Russian Federation, the appointment of alimony for the maintenance of a minor child in a fixed amount is possible only in cases directly provided for by this rule (Appeal ruling of the Moscow City Court of March 24, 2015 in case N 33-9616 / 2015).
In sect. III Review, approved. The Presidium of the Supreme Court of the Russian Federation on 05/13/2015 noted that the courts rarely make decisions on the recovery of alimony simultaneously in shares and in a fixed amount. From the practice of the Moscow City Court it follows that the amount of alimony in a fixed amount is set taking into account the size of the subsistence minimum, as required by paragraph 2 of Art. 117 of the Investigative Committee of the Russian Federation (for example, Appellate rulings of 05/06/2015 in case N 33-14400 / 2015, of 04/16/2015 in case N 33-13006). The amount of alimony recovered by a court decision in a fixed amount is indexed in accordance with Art. 117 of the RF IC in proportion to the growth of the subsistence level (Section III of the Review, approved by the Presidium of the Supreme Court of the RF on 05/13/2015).
When collecting alimony for minor children in a fixed sum of money, its amount is determined by the court based on the maximum possible preservation of the child's previous level of support, taking into account the material and marital status of the parties and other noteworthy circumstances (Clause 2, Article 83 of the IC RF).
In sect. III Review, approved. The Presidium of the Supreme Court of the Russian Federation on 05/13/2015 clarified that when determining the amount of alimony for minor children in a firm sum of money, the court regards as the main criterion the maximum possible preservation of the child's previous level of support (for example, Definitions of the Moscow City Court of 25.12.2014 N 4g / 7 -13469/14, dated 17.02.2014 N 4g / 7-789 / 14).
In this case, the court takes into account the property status of the family until the parents of the child stop living together or when the parents live separately - until one of the parents stops paying funds for the maintenance of the child on a voluntary basis (by agreement of the parties). In these cases, the amount of money that the parent pays to support the child is taken as the basis.
The court takes into account whether the child attends preschool or other institutions of additional development (education) (for example, is engaged in music, drawing, sports, dancing), and if such activities require additional payment, alimony is collected from the parent in such an amount that the child could maintain the previous standard of living and continue his studies, attending circles, additional classes (for example, the Cassation ruling of the Moscow City Court of 03/17/2015 N 4g / 2-2577 / 15). The plaintiff can submit to the court a calculation for the maintenance of the child, as well as documents confirming that the plaintiff has borne the costs of the child: copies of cash receipts, receipts, contracts, etc. (for example, Determination of the Moscow City Court of 23.01.2015 N 4g / 7-146 / 15) ...
When considering the case, the court finds out the amount of earnings and (or) other income of the parent who is obliged to pay alimony, checks whether he has property on which a claim for alimony payments can be levied (for example, Determination of the Moscow City Court dated 20.02.2014 N 4g / 1- 1540).
So, from the Office of Rosreestr, information is requested on the ownership of the debtor real estate, from the traffic police - about the presence of registered for him Vehicle, from the tax authorities - information about the amount of income received.
In addition, at the request of the plaintiff, the court requests information about the presence of the defendant's accounts and monetary deposits and the funds available on them in credit institutions (Section III of the Review, approved by the Presidium of the Supreme Court of the Russian Federation on 13.05.2015). Also, the court may take into account that the defendant is the founder of several commercial organizations(for example, the Cassation ruling of the Moscow City Court dated 17.03.2015 N 4g / 2-2577 / 15), a shareholder (for example, Ruling of the Moscow City Court dated 17.02.2014 N 4g / 7-789 / 14), a citizen of another state (for example, The appeal ruling of the Moscow City Court dated 04.16.2015 in case No. 33-13006).
The RF IC provides for the possibility of issuing an order on the recovery of alimony for minor children before the court makes the very decision on the recovery of alimony. In this case, the court determines the amount of alimony according to the rules of Art. 81 of the RF IC (Article 108 of the RF IC). Based on the explanations given in Sec. VII of the Review, approved by By the Presidium of the Supreme Court of the Russian Federation on 05/13/2015, the court may issue the specified resolution before the final consideration of the case in cases where:
The proceedings on the case were suspended due to the sending of a letter of order or the search for the defendant,
The trial was repeatedly postponed due to the defendant's failure to appear and the lack of information about his proper notification,
The trial is postponed due to the need to obtain additional evidence,
The plaintiff simultaneously presented two demands - on divorce and on the recovery of alimony for the child, and the court in accordance with paragraph 2 of Art. 22 of the RF IC provided the parties with a period of reconciliation.
Within the meaning of paragraph 1 of Art. 108 of the RF IC, temporary (i.e. preliminary) recovery of alimony for minor children before the court makes a decision on the case is allowed at any time after the court accepts an application for the recovery of alimony for processing, if there is reason to believe that the defendant does not fulfill the obligation to support the children (Ruling of the Supreme Court of the Russian Federation of 15.10.2013 N 80-KG13-10, Appeal ruling of the Moscow City Court of 30.01.2015 in case N 33-2835). This provision guarantees the provision of minor children in need of assistance with the necessary funds for the period of consideration of the dispute (Section VII of the Review, approved by the Presidium of the Supreme Court of the Russian Federation on May 13, 2015).
Family law provides for liability for late payment of alimony.
So, according to paragraph 2 of Art. 115 of the RF IC, a person who is obliged to pay alimony by a court decision, guilty of the formation of alimony arrears, pays to the recipient a penalty in the amount of one second percent of the amount of unpaid alimony for each day of delay.
In addition, the recipient of alimony is also entitled to recover from the person who is liable to pay alimony, who is guilty of late payment of alimony, all damages caused by the delay in fulfilling alimony obligations in the part not covered by the forfeit (paragraph 2, clause 2, article 115 of the IC RF).
It is important to take into account that specified in paragraph 2 of Art. 115 of the RF IC, the liability of a person obliged to pay alimony by a court decision for late payment of alimony (payment of a penalty, compensation for losses) occurs in the event of a debt arising through the fault of the alimony payer. Such responsibility cannot be imposed on the payer if the alimony arrears have arisen through the fault of other persons, in particular due to late payment of wages, delay or incorrect transfer of alimony amounts by banks, etc. (Clause 25 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of 25.10.1996 N 9).
Consequently, the court, when considering the case, checks whether the defendant has arrears in the payment of alimony, finds out the reasons for non-performance ( improper performance) obligations to pay alimony, as well as the presence or absence of his fault in non-payment (untimely payment) of alimony (for example, the Appellate rulings of the Moscow City Court dated 06.07.2015 in case No. 33-23372 / 2015, dated 10.04.2015 in case No. 33- 8033). In the absence of the fault of the alimony payer, the court shall refuse to satisfy the claim for the recovery of the forfeit. If the defendant refers to the absence of his fault in non-payment of alimony due to serving a sentence in places of deprivation of liberty, the court checks whether the convicted person had the opportunity to work during the specified period. If the defendant had such an opportunity, the court may conclude that the defendant was guilty of failure to fulfill his obligations to pay alimony (Section X of the Review, approved by the Presidium of the Supreme Court of the Russian Federation on 13.05.2015).
If, in the absence of an agreement on the payment of alimony, their amount was established by the court, but after that the financial or marital status of one of the parties changed, the court may change the established amount of alimony or even release the person obliged to pay alimony from paying it (clause 1 of article 119 RF IC). Both the payer and the recipient of the alimony can apply to the court with a corresponding request. In this case, usually the demand for an increase in the amount of alimony is presented by their collector, and the demand for a decrease in the amount of alimony is made by their payer.
In such a situation, the court takes into account the material and marital status of the parties, other noteworthy circumstances or interests of the parties (for example, Determination of the Supreme Court of the Russian Federation of June 25, 2013 N 4-KG13-16).
In particular, the disability of family members, to whom, according to the law, the party is obliged to provide maintenance, the onset of disability, the presence of a disease that prevents the continuation of the previous work, the child's employment or engagement in entrepreneurial activity (paragraph 14 of the Resolution Resolution of the Plenum of the Supreme Court of the Russian Federation of 10/25/1996 N 9).
For example, the court refused to satisfy the claimant's claim to exempt him from paying alimony, since he did not prove that due to illness he was unable to find a job, and did not bring noteworthy circumstances for exemption from paying alimony. According to the court, the change in the financial situation of the parents in itself cannot limit the child's right to necessary and decent maintenance and is not a basis for exemption from the payment of alimony. The obligation to pay alimony is unconditional and is not associated with the presence or absence of a permanent and sufficient income, thus, regardless of material and marital status, parents are obliged to support minor children (Determination of the Moscow City Court of 18.08.2014 N 4g / 7-8170 / 14).
Based on the explanations given in Sec. VIII Review, approved. The Presidium of the Supreme Court of the Russian Federation on 05/13/2015, the unconditional reason for changing (reducing) the amount of alimony is not the presence of other children dependent on the alimony payer, in respect of whom the issue of collecting alimony in court was not resolved, as well as the existence of the alimony payer in arrears.
Cases on the recovery of alimony for children can be considered as a court of first instance by a magistrate (Article 23 of the Code of Civil Procedure of the Russian Federation) or a district court (Article 24 of the Code of Civil Procedure of the Russian Federation).
The justice of the peace considers, as a court of first instance, cases on the issuance of a court order and other cases arising from family law relations, with the exception of cases on challenging paternity (motherhood), on establishing paternity, on deprivation of parental rights, on restriction of parental rights, on adoption (adoption) of a child, other cases on disputes about children and cases of invalidating a marriage (clauses 1, 4, part 1 of article 23 of the Code of Civil Procedure of the Russian Federation).
In sect. II Review, approved. The Presidium of the Supreme Court of the Russian Federation on 05/13/2015 clarified that the dispute belongs to the jurisdiction of the district court, if, simultaneously with the requirements for the recovery of alimony, the plaintiff claims the deprivation of parental rights, the restriction of parental rights, the establishment of paternity, the determination of the child's place of residence.
Cases on disputes on the recovery of alimony for minor children, on the change in the amount of alimony, on the recovery of additional costs, on the recovery of a forfeit due to late payment of alimony, including in an amount exceeding 50 thousand rubles, are subject to the jurisdiction of the magistrate (Section II Review, approved by the Presidium of the Supreme Court of the Russian Federation on 05/13/2015) (for example, the Appellate ruling of the Moscow City Court dated 04/08/2015 in case N 33-9544 / 15).
A claim for the recovery of alimony for children can be brought according to the general rule - at the place of residence of the defendant (Article 28 of the Code of Civil Procedure of the Russian Federation) or according to the rules of alternative jurisdiction - at the place of residence of the plaintiff (Part 3 of Article 29 of the Code of Civil Procedure of the Russian Federation). According to Part 3 of Art. 29 of the Code of Civil Procedure of the Russian Federation, claims for the recovery of alimony and the establishment of paternity can be brought by the plaintiff also to the court at his place of residence. In sect. II Review, approved. The Presidium of the Supreme Court of the Russian Federation on 05/13/2015 clarified that this rule does not imply the possibility of filing a claim under the rules of alternative jurisdiction only in the event of a simultaneous statement of claims for establishing paternity and collecting alimony. If the plaintiff claims to increase the amount of alimony or to recover a penalty due to their late payment, then such a claim may be brought by the plaintiff to the court both at the place of residence of the defendant and at his place of residence.
It should be noted that the claims of persons from whom alimony is collected for children and other family members, about changing the amount of alimony in accordance with Art. 28 of the Code of Civil Procedure of the Russian Federation are subject to jurisdiction by the court at the place of residence of the defendant (claimant) (clause 24 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of 25.10.1996 N 9). Consequently, upon presentation by the person paying alimony, requirements for reducing the amount of alimony or for exemption from their payment, general rules jurisdiction established by Art. 28 of the Code of Civil Procedure of the Russian Federation, and the claim must be filed at the place of residence of the defendant (Section II of the Review, approved by the Presidium of the Supreme Court of the Russian Federation on May 13, 2015).
Regarding the payment of the state duty when filing a claim for the recovery of alimony in court, the following should be noted.
According to paragraphs. 14 p. 1 of art. 333.19 of the Tax Code of the Russian Federation, when filing an application in cases of collecting alimony, the state duty is paid in the amount of 150 rubles; if the court makes a decision on the recovery of alimony both for the maintenance of the children and for the maintenance of the plaintiff, the amount of the state fee is doubled.
At the same time, in accordance with paragraphs. 2 p. 1 art. 333.36 of the Tax Code of the Russian Federation from the payment of state fees in cases considered by the courts general jurisdiction, justices of the peace, are released plaintiffs in claims for the recovery of alimony.
Considering the clarifications provided in question 8 of section " Court expenses"Review of judicial practice of the Supreme Court of the Russian Federation of 04.05.2005, 11.05.2005, 18.05.2005" Review of legislation and judicial practice of the Supreme Court of the Russian Federation for the first quarter of 2005 ", to the plaintiff when filing statement of claim the collection of alimony is not required to pay a state fee. This tax levy, according to the rules of paragraphs. 14 p. 1 of art. 333.19 of the Tax Code of the Russian Federation is paid by the defendant, if he is not exempted from paying the state fee, after the decision is made (subparagraph 8 of clause 1 of article 333.20 of the Tax Code of the Russian Federation) (for example, Determination of the Moscow City Court of 06.04.2016 N 4g-0838/2016).
Please note that from 01.01.2017 a statement of claim can be filed with the court both on paper and in in electronic format- including in the form electronic document signed electronic signature, - by filling out the form posted on the official website of the court on the Internet (part 1.1 of article 3 of the Code of Civil Procedure of the Russian Federation as amended by Federal Law of 23.06.2016 N 220-FZ).
To the plaintiff, who in court intends to demand the recovery of alimony for a minor child in proportion to the earnings and (or) other income of the defendant in an amount exceeding that established in paragraph 1 of Art. 81 of the RF IC the amount of alimony, appropriate evidence should be provided. They can be documents confirming the special family or financial situation of the plaintiff or the defendant (for example, a high level of earnings, availability of credit obligations). If the plaintiff does not prove the existence of circumstances that may serve as a basis for changing the amount of alimony established in proportion to the parent's earnings (other income), the court will decide to collect alimony in the amount of the corresponding share of earnings established in paragraph 1 of Art. 81 of the Investigative Committee of the Russian Federation (Section III of the Review, approved by the Presidium of the Supreme Court of the Russian Federation on May 13, 2015).
As a general rule, alimony is awarded from the moment of going to court (clause 2 of article 107 of the RF IC). However, the law provides for the possibility of collecting alimony for the past period within a three-year period from the date of going to court (for example, Determination of the Moscow City Court of December 25, 2014 N 4g / 7-13366 / 14). For the court to make an appropriate decision, the plaintiff must prove that, before going to court, he took measures to receive funds for the maintenance of the child, but did not receive them due to the defendant's evasion from paying them.
From the explanations given in Sec. VI Review, approved. By the Presidium of the Supreme Court of the Russian Federation on 05/13/2015, it follows that in this case the plaintiff must provide the court with evidence confirming the appeal of the plaintiff to the defendant with a claim to pay alimony for a minor child. They can be, for example, registered letters with notification or e-mail addresses to the defendant containing a corresponding requirement, the plaintiff's appeals to the magistrate with an application for the issuance of a court order (if the court order was subsequently canceled) or in law enforcement with a statement on the search for the defendant.
In addition, when deciding in favor of the plaintiff to recover alimony from the defendant for the past time within a three-year period, the court may take into account the recognition of the claim by the defendant and other circumstances.
Determining the date from which alimony is collected from the defendant for the past time, the court may take into account that, prior to this date, the defendant provided material assistance for the maintenance of the child, incurred the costs of his material support(for example, the Appellate rulings of the Moscow City Court of 03/30/2015 in case N 33-10372 / 2015, of 03.24.2015 in case N 33-9616 / 2015).
If the plaintiff cannot prove that he took measures to receive funds for the maintenance of the child, but did not receive them due to the defendant's evasion of paying them, the court will refuse to collect alimony for the period before going to court (for example, the rulings of the Moscow City Court of 24.07.2014 N 4g / 5-7971, dated 17.02.2014 N 4g / 7-712 / 14).
If the plaintiff claims to collect alimony for the past period simultaneously with the requirement to establish paternity, then upon satisfaction of the claim to establish paternity, the court will recover alimony for a minor child in accordance with the rules of paragraph 2 of Art. 107 of the RF IC from the moment the plaintiff applied to the court with the specified claim. In this case, it is impossible to collect funds from the defendant for the maintenance of the child for the past time. Indeed, until the claim for establishing paternity was satisfied, the defendant was not recognized as the child's father in the prescribed manner (paragraph 8 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of 10.25.1996 N 9, section VI of the Review, approved by the Presidium of the Supreme Court of the Russian Federation on 05.13.2015).
It is important to know that the claimant can collect a penalty for late payment of alimony established by a court decision (clause 2 of article 115 of the IC RF) only from the person obliged to pay alimony, since this penalty is a special measure of family liability. The claim of the plaintiff to recover this penalty from other persons (for example, from the defendant's employer) will be refused (Section X of the Review, approved by the Presidium of the Supreme Court of the Russian Federation on 13.05.2015).
Acting family law does not provide compensation moral harm for non-payment of alimony. Plaintiffs who intend to recover from the defendant a penalty for non-payment of alimony are not recommended to simultaneously file a claim for compensation for non-pecuniary damage: the court will refuse such compensation (Section X of the Review, approved by the Presidium of the Supreme Court of the Russian Federation on 05/13/2015).
The plaintiff (recipient of alimony) has the opportunity, in order to increase their amount, to demand that alimony be collected from the defendant in a fixed amount instead of the alimony collection made on the basis of a court decision (court order) in proportion to the defendant's earnings (clause 1 of article 119 of the IC RF) ...
In support of such claims, the plaintiffs usually refer to the fact that the collection of alimony in proportion to earnings no longer meets the interests of the child, since it is an insignificant amount, often not even reaching the level of the subsistence minimum for children established in the corresponding constituent entity of the Russian Federation, which does not allow maintaining the child. and provide for his vital needs.
For example, in a particular case, the plaintiff referred to the fact that the amount of alimony paid on the basis of the court's decision in proportion to all types of the defendant's earnings is not enough, t.to. children are disabled, they need constant medical supervision and the purchase of expensive medicines (Determination of the Moscow City Court dated 06/18/2014 N 4g / 5-6440 / 2014).
In sect. VIII Review, approved. The Presidium of the Supreme Court of the Russian Federation on 05/13/2015 stated that, when resolving such disputes, the courts check whether the material and marital status of the parties has really changed, whether there are other noteworthy circumstances that are grounds for changing the amount of alimony collected. An example of a dispute in which the court ruled in favor of the plaintiff is the Determination of the Moscow City Court dated 06/18/2014 N 4g / 5-6440 / 2014.
The plaintiff (recipient of alimony) has the right to apply to the court with a claim to increase the amount of alimony collected (clause 1 of article 119 of the RF IC), if the alimony payer paid alimony for two or more children in proportion to earnings and (or) other income and one of the children has reached the age of majority. The courts, as a rule, satisfy such claims (Section VIII of the Review, approved by the Presidium of the Supreme Court of the Russian Federation on May 13, 2015).
To make a decision in favor of the plaintiff when filing a claim for the recovery of alimony for the maintenance of a minor child (minor children), it is necessary to prove the circumstances indicated in the table:
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Examples from judicial practice |
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The defendant is the parent of a minor child |
Child's birth certificate The record of the birth of a child, produced by the registry office, in which the respondent is indicated in the column "father" Paternity certificate Entered into force judicial act on the establishment of paternity or on the establishment of the fact of recognition of paternity A deed entry on the establishment of paternity, made by the registry office |
Cassation ruling of the Moscow City Court dated January 29, 2016 N 4g-429/2016 Determination of the Moscow City Court of 14.08.2015 N 4g / 6-8576 / 15 Appeal ruling of the Moscow City Court dated 09.14.2015 in case N 33-32963 / 2015 Appeal ruling of the Moscow City Court dated 09/04/2015 in case N 33-30043 / 2015 Appeal ruling of the Moscow City Court dated 02.06.2015 in case No. 33-16247 Appeal ruling of the Moscow City Court dated 04.22.2015 in case N 33-12282 |
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The defendant does not provide maintenance to his minor child (does not properly fulfill his obligations to maintain a minor child) |
Lack of evidence of the provision by the defendant to the plaintiff of monthly regular financial assistance for the maintenance of the child from the moment of his birth / from another moment to the present |
Determination of the Moscow City Court of 14.08.2015 N 4g / 6-8576 / 15 Determination of the Moscow City Court of 25.12.2014 N 4g / 7-13366 / 14 Appeal ruling of the Moscow City Court dated 09.14.2015 in case N 33-32963 / 2015 Appeal ruling of the Moscow City Court dated 09/04/2015 in case N 33-30043 / 2015 |
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The following has not been achieved between the plaintiff and the defendant: Agreement on the maintenance of a minor child; Agreement on the maintenance, upbringing and place of residence of children; Alimony Payment Agreement |
Absence of an agreement on the maintenance of a minor child / agreement on the maintenance, upbringing and place of residence of children / agreement on the payment of alimony concluded between the plaintiff and the defendant |
Cassation ruling of the Moscow City Court dated January 29, 2016 N 4g-429/2016 Determination of the Moscow City Court of 25.12.2014 N 4g / 7-13366 / 14 Determination of the Moscow City Court dated 05.05.2014 N 4g / 7-3774 / 14 Appeal ruling of the Moscow City Court dated 09/04/2015 in case N 33-30043 / 2015 Appeal ruling of the Moscow City Court dated 02.06.2015 in case No. 33-16247 |
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The defendant is employed, has a permanent place of work, regular income, stable earnings (when collecting alimony in proportion to the earnings and (or) other income of the defendant on the basis of Article 81 of the RF IC) |
Defendant's work record book Certificate from the defendant's place of work Documents confirming that the defendant has a permanent source of income that allows him to support a minor child Lack of evidence that the defendant's earnings are irregular and variable Lack of evidence that the defendant has no earnings and (or) other income Lack of evidence that the recovery of alimony in proportion to the parent's earnings and (or) other income is impossible, difficult or materially violates the interests of the plaintiff / defendant |
Cassation ruling of the Moscow City Court dated January 29, 2016 N 4g-429/2016 The cassation ruling of the Moscow City Court of 10.07.2015 N 4g / 2-7091 / 15 Determination of the Moscow City Court of 21.01.2015 N 4g / 7-142 / 15 Determination of the Moscow City Court of 25.12.2014 N 4g / 7-13366 / 14 Appeal ruling of the Moscow City Court dated 09.14.2015 in case N 33-32963 / 2015 Appeal ruling of the Moscow City Court dated 09/04/2015 in case N 33-30043 / 2015 Appeal ruling of the Moscow City Court dated 02.06.2015 in case No. 33-16247 Appeal ruling of the Moscow City Court of March 24, 2015 in case N 33-9616 / 2015 |
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Defendant: Is (was) individual entrepreneur; Has an irregular, variable income; Has no official place of work, permanent earnings (when collecting alimony in a fixed amount on the basis of Art.83 of the RF IC) |
Defendant's work record book Defendant's income statement (Form 2-NDFL) Documents confirming that the defendant has the status of an individual entrepreneur Defendant's Statement of state registration termination natural person activities as an individual entrepreneur, directed to the IFTS of Russia during the period when a claim for the recovery of alimony was in court proceedings Notification of the removal of the defendant from the register in tax authority as an individual entrepreneur in the Federal Tax Service Inspectorate of Russia, received by the defendant during the period when the claim for the recovery of alimony was in court proceedings Documents confirming that the defendant works in the organization as chairman of the board of directors, has a free work schedule Documents confirming that the defendant has no permanent income Plaintiff's testimony Defendant's explanations |
Determination of the Moscow City Court of 14.08.2015 N 4g / 6-8576 / 15 The cassation ruling of the Moscow City Court dated 17.03.2015 N 4g / 2-2577 / 15 Determination of the Moscow City Court of 23.01.2015 N 4g / 7-146 / 15 Determination of the Moscow City Court of 25.12.2014 N 4g / 7-13469 / 14 Appeal ruling of the Moscow City Court dated 06.05.2015 in case N 33-14400 / 2015 Appeal ruling of the Moscow City Court dated 04.16.2015 in case No. 33-13006 |
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The defendant does not pay the plaintiff the alimony collected by the court decision, and has an arrears in their payment, formed through the fault of the defendant (when collecting a forfeit for late payment of alimony on the basis of clause 2 of article 115 of the RF IC) |
A judicial act entered into legal force, according to which alimony for the maintenance of a minor child was recovered from the defendant Resolution of the bailiff-executor to initiate, on the basis of a writ of execution, enforcement proceedings against the defendant Resolution of the bailiff-executor, which established the debt of the defendant for alimony for a certain period Materials of enforcement proceedings, from which it follows that the defendant was repeatedly warned about criminal liability for failure to fulfill alimony obligations, the bailiffs-executors repeatedly took from the defendant written explanations about the reason for non-payment A judicial act that has entered into legal force, by which the defendant is deprived of parental rights due to malicious evasion from the payment of alimony Calculation of the alimony payment arrears presented by the plaintiff Calculation of forfeit for late payment of alimony presented by the plaintiff Lack of evidence confirming the existence of objective obstacles to the timely payment of child support Lack of evidence of repayment of the alimony debt by the defendant Lack of calculation of the alimony arrears presented by the defendant |
Determination of the Moscow City Court of 20.05.2016 N 4g-4877/2016 The cassation ruling of the Moscow City Court of December 25, 2014 N 4g / 2-13668 / 14 Appeal ruling of the Moscow City Court dated 06.07.2015 in case N 33-23372 / 2015 Appeal ruling of the Moscow City Court of 10.04.2015 in case N 33-8033 |
The defendant needs to know that the following circumstances do not exempt him from the obligation to bear the costs of supporting minor children:
The defendant is a citizen of another state (for example, the Appellate ruling of the Moscow City Court dated 09/04/2015 in case N 33-30043 / 2015);
The defendant is a disabled person with limited parental rights for health reasons (Information of the Ministry of Justice of Russia dated 20.07.2015 "Answers to citizens' questions related to ensuring the rights of orphans and children left without parental care", question 18);
The defendant has other dependent persons (for example, an elderly mother, another minor child) or takes care of a sick family member (for example, the Appeal rulings of the Moscow City Court dated 09/04/2015 in case N 33-30043 / 2015, from 05/06/2015 in the case N 33-14400 / 2015);
The defendant does not work (does not have permanent labor income, is registered at the labor exchange, the defendant's income is insignificant, is of a one-time nature, etc.) (for example, the Appellate ruling of the Moscow City Court of 05/06/2015 in case N 33-14400 / 2015).
If the plaintiff demands to recover alimony from the defendant for a three-year period preceding the moment of filing a claim with the court (clause 2 of article 107 of the IC RF), the defendant must provide evidence confirming his fulfillment of the obligation to transfer (transfer) money to the plaintiff for a minor child, regardless of whether the plaintiff received these funds or refused to receive them.
Such evidence can be documents confirming the transfer of alimony by postal orders, transfers to the plaintiff's bank card, etc. (Section VI of the Review, approved by the Presidium of the Supreme Court of the Russian Federation on 13.05.2015). In such a situation, the likelihood of a decision in favor of the defendant is high.
If the defendant, who pays alimony by court order, is charged a penalty for their late payment on the basis of paragraph 2 of Art. 115 SK RF, it is recommended to check the procedure for its calculation.
The court may recover such a penalty on the basis of the calculation of the plaintiff, not contested by the defendant, previously verified by the court and recognized by it as mathematically correct (for example, the Appellate ruling of the Moscow City Court of 06.07.2015 in case N 33-23372 / 2015).
In sect. X Review, approved. The Presidium of the Supreme Court of the Russian Federation on 05/13/2015 clarified that the obligation to pay alimony is monthly in nature, therefore, the penalty for non-payment of alimony must be determined for each overdue monthly payment, based on the amount of this payment and the number of days of its delay, determined on the date of the court decision on the recovery of a forfeit.
The calculation, when the calculation of the forfeit is made by multiplying the total amount of the alimony debt by one-second percent and by the total number of days of delay, cannot be considered correct. In this case, the defendant is advised to appeal against the court decision regarding the calculation of the penalty provided for in paragraph 2 of Art. 115 of the RF IC.
For the correct calculation of the forfeit, the defendant may submit to the court his calculation of the amount of the alimony debt (for example, the Appellate ruling of the Moscow City Court of 10.04.2015 in case N 33-8033).
We draw your attention to the fact that in the practice of the Moscow City Court there are no decisions made in favor of the defendant at his request to challenge the calculation of a penalty for late payment of alimony (clause 2 of article 115 of the IC RF).
To the defendant, from whom the court charged a penalty for late payment of alimony under paragraph 2 of Art. 115 of the RF IC, it is not recommended to ask to reduce its size on the basis of Art. 333 of the Civil Code of the Russian Federation, referring to the clear disproportion of the penalty to the consequences of the violation of the obligation.
Such a claim will be denied to the defendant, since a reduction in the amount of the penalty for late payment of alimony collected by the court, on the basis of Art. 333 of the Civil Code of the Russian Federation is not allowed. The penalty provided for in paragraph 2 of Art. 115 of the RF IC, is established in the form of a fixed amount of interest charged for each day of delay. Reduction of penalties by the provisions of Art. 115 of the RF IC is not provided for (Section X of the Review, approved by the Presidium of the RF Supreme Court on 13.05.2015).
The defendant should take into account that the court may temporarily (tentatively) recover from him alimony for minor children pending the actual decision on the recovery of alimony (clause 1 of article 108 of the IC RF).
In sect. VII of the Review, approved by On May 13, 2015, the Presidium of the Supreme Court of the Russian Federation clarified that the court may issue an appropriate ruling before the final consideration of the case, in particular, if the proceedings are suspended due to the search for the defendant or if the trial has been repeatedly postponed due to his failure to appear.
So, when considering a specific dispute, the court ruled to collect alimony from the defendant for the maintenance of children before the court makes a decision on the recovery of alimony in the case, t.to. the case is in court proceedings beyond the time limit established by law, the defendant is the father of the children, did not provide evidence of the provision of regular material assistance for the maintenance of the children. The plaintiff referred to the fact that the defendant did not actually participate in the maintenance of the children, deliberately delayed the consideration of the claim for the recovery of alimony, at his objections, the court order for the recovery of alimony was canceled, a counterclaim was filed (Appeal ruling of the Moscow City Court of January 30, 2015 in case No. 33 -2835).
A defendant who has an alimony arrears can go to court with a claim to release him from paying this debt in full or in part (clause 2 of article 114 of the RF IC). To satisfy such a claim, the defendant must provide evidence of the existence of two conditions: firstly, that the non-payment of alimony took place due to the defendant's illness or for other valid reasons, and secondly, that the defendant's financial and marital status does not allow him to pay off the existing debt.
As follows from Sec. IX of the Review, approved by By the Presidium of the Supreme Court of the Russian Federation on 05/13/2015, the courts include the incapacity for work of the alimony payer and his military service as valid reasons for non-payment of alimony.
The defendant's serving of punishment in places of deprivation of liberty is not an unconditional basis for his release from the payment of alimony arrears; in such cases, the court examines other circumstances of the case. In particular, whether the defendant was involved in paid labor during the period of serving his sentence, whether he refused to work without good reason, whether he took measures to pay off the debt after serving the sentence, and whether there are objective reasons that make it impossible for him to pay off the debt after being released from places of deprivation of liberty (for example, the onset of a disability that interferes with work).
If the defendant, as a basis for his release from the payment of the alimony debt, refers to the fact that the debt was accrued for the period when the child lived with him and was dependent on him, the court verifies from what moment the child began to live with the defendant, and what are the circumstances of such residence. For example, the temporary presence of a child with his father during the summer holidays is not a basis for releasing the defendant from the alimony arrears (Section IX of the Review, approved by the Presidium of the Supreme Court of the Russian Federation on 05/13/2015).
To release the person obliged to pay alimony from paying the debt on them on the basis of paragraph 2 of Art. 114 of the RF IC only the court has the right; the bailiff is not authorized to resolve this issue (Appellate ruling of the Moscow City Court of 18.08.2015 in case N 33-29486 / 2015). We draw your attention to the fact that in the practice of the Moscow City Court there are no decisions made in favor of the defendant in the claim filed by him for release from the payment of alimony arrears.
The defendant (the payer of alimony), who intends to demand a decrease in the amount of alimony established by the court in connection with a change in his material (family) position (clause 1 of article 119 of the IC RF), must take into account the following.
Circumstances such as the presence of the defendant's credit obligations, incurring the cost of paying for rented housing, by themselves, do not indicate a deterioration in his financial situation. The deterioration of the defendant's state of health, which does not prevent the continuation of the previous work, is not recognized as a sufficient reason for changing the amount of alimony.
If the defendant refers to the birth of his other children (from other marriages), who are also subject to alimony in court, the court usually finds out whether the financial and (or) marital status of the debtor has changed so much that he is not able to provide minor children with maintenance in the same amount, and how such a change will affect the financial situation of children (Section VIII of the Review, approved by the Presidium of the Supreme Court of the Russian Federation on May 13, 2015).
The defendant (alimony payer) on the basis of paragraph 1 of Art. 119 IC RF may demand to replace the recovery of alimony, determined by the court in a fixed amount, with the recovery of alimony in proportion to his earnings and (or) other income.
Such a replacement is possible if the defendant proves the change or absence of the circumstances that served as the basis for the recovery of alimony in a firm sum of money (Article 83 of the IC RF). In sect. VIII Review, approved. The Presidium of the Supreme Court of the Russian Federation on 05/13/2015 indicated that, when resolving such disputes, the courts investigate the issues of what circumstances served as the basis for establishing the amount of alimony in a fixed sum, whether these circumstances have changed upon presentation specified requirements how the change in the amount of alimony will affect the financial situation of the child.
To make a decision in favor of the defendant when filing a claim for the recovery of alimony for the maintenance of a minor child (minor children), it is necessary to prove the circumstances specified in the table:
|
Circumstances to be proved |
Evidence to support these circumstances |
Examples from judicial practice |
|
The defendant provides maintenance to his minor child (properly fulfills his obligations to maintain a minor child) |
Documents confirming the transfer by the defendant to the plaintiff of funds for the maintenance of the child by postal orders, transfers to the plaintiff's bank card Other evidence of the provision by the defendant to the plaintiff of monthly regular financial assistance for the maintenance of the child from the moment of his birth / from another moment to the present / until another moment Lack of evidence that the defendant evaded (is evading) the provision of material assistance for the maintenance of the child Plaintiff's testimony Defendant's explanations |
Section VI of the Review, approved by Presidium of the Supreme Court of the Russian Federation 05/13/2015 |
|
There are no grounds for collecting penalties from the defendant for late payment of alimony on the basis of paragraph 2 of Art. 115 RF IC: The defendant pays the plaintiff the alimony collected by the court decision, in full within the prescribed time frame; The defendant is not in arrears in the payment of alimony; The defendant has an arrears in the payment of alimony, formed through no fault of the defendant (untimely payment of wages to him, delay or incorrect transfer of alimony amounts by banks, etc.) |
Evidence of payment by the defendant of alimony in full within the prescribed time frame Receipts, other documents confirming the repayment of the alimony debt by the defendant Evidence of the Defendant's Absence of Fault in the Origin of the Alimony Arrears Evidence that support arrears were caused by others (for example, due to late payment of wages, delay or incorrect transfer of alimony amounts by banks) Evidence of valid reasons for non-payment of alimony by the defendant Evidence of the existence of objective obstacles to the timely payment of alimony by the defendant Calculation of alimony arrears presented by the defendant |
Section X of the Review, approved by Presidium of the Supreme Court of the Russian Federation 05/13/2015 Clause 25 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of 25.10.1996 N 9 Determination of the Moscow City Court of 20.05.2016 N 4g-4877/2016 Appeal ruling of the Moscow City Court dated 28.05.2015 in case N 33-18242 / 2015 |
Statement of claim for the recovery of alimony:
Plaintiff: ___________ (full name) _____________
Representative of the Claimant: Petukhov Oleg Anatolyevich
e-mail mail: ____________________________
the address: _______________________________,
telephone: ______________________________
Claim price: _______________________ rubles.
Statement of claim for the recovery of alimony
for a minor child (minor children)
"___" ________ ____, between the Plaintiff _______________ and the Respondent _______________ in the Registry Office N ___, _________, a marriage was concluded, which is confirmed by a marriage certificate from "___" ________ _____ N _____. The marriage between the Claimant and the Respondent was terminated in the civil registry authorities / by decision of the ______ court from "___" ________ _____ N _____, about which a divorce certificate was issued from "___" ________ _____ N _____.
The Plaintiff and the Defendant in the period from "___" ________ ____ to "___" ________ ____ were in a de facto marriage relationship. At the moment, the Parties are living separately, the actual marriage relationship is terminated.
The Plaintiff and the Respondent have (are) a common (common) child (children): ________, "___" __________ year of birth, which is confirmed by the birth certificate (s). The child (children) lives (lives) with the Claimant at the address: ____________________, is (are) fully dependent on the Claimant.
The Defendant is the parent of a minor child (minor children), which is confirmed by the child's birth certificate / child's birth certificate issued by the Civil Registry Office, in which the Defendant is indicated in the column "father" paternity or on the establishment of the fact of recognition of paternity / deed on the establishment of paternity, made by the registry office / other documents.
The defendant does not provide maintenance to his minor child (minor children), does not properly fulfill his obligations to support the minor child (minor children). There is no evidence that the Respondent provided the Claimant with monthly regular financial assistance for the maintenance of the child (children) from the moment of his birth / from the moment of _______ to the present time.
According to paragraph 1 of Art. 80 of the RF IC, parents are obliged to support their minor children. The procedure and form of providing maintenance to minor children are determined by the parents independently.
Based on paragraph 2 of Art. 80 of the RF IC in the event that parents do not provide maintenance to their minor children, funds for the maintenance of minor children (alimony) are collected from the parents in court.
An agreement on the maintenance of a minor child (minor children) / agreement on the maintenance, upbringing and place of residence of the child (children) / agreement on the payment of alimony for a minor child (minor children) has not been reached between the Claimant and the Respondent.
The defendant is employed, has a permanent place of work, regular income, stable earnings. This is evidenced by employment history Defendant / certificate from the Defendant's place of work / Defendant's income statement (Form 2-NDFL) / documents confirming that the Defendant has a permanent source of income that allows him to maintain a minor child (minor children) / other documents. Evidence that the Defendant's earnings are irregular, changing in nature / that the Defendant has no earnings and (or) other income / that the recovery of alimony in proportion to earnings and (or) other income of the Defendant is impossible, difficult or materially violates the interests Claimant / Respondent are absent.
In accordance with paragraph 1 of Art. 81 of the RF IC in the absence of an agreement on the payment of alimony, alimony for minor children is collected by the court from their parents on a monthly basis in the amount of: for one child - one quarter, for two children - one third, for three or more children - half of the earnings and (or) other income parents.
Based on paragraph 2 of Art. 81 of the RF IC, the size of these shares may be reduced or increased by the court, taking into account the material or marital status of the parties and other noteworthy circumstances.
The defendant is (was) an individual entrepreneur / has an irregular, variable income / does not have an official place of work, permanent earnings / other. This is evidenced by a certificate of income of the defendant (form 2-NDFL) / work book of the Respondent / documents confirming that the Respondent has the status of an individual entrepreneur / application of the Respondent for state registration of the termination of an individual's activity as an individual entrepreneur, sent to the Federal Tax Service of Russia during the period of the claim on the recovery of alimony in court proceedings / notification of the Defendant's deregistration with the tax authority as an individual entrepreneur at the Federal Tax Service Inspectorate of Russia, received by the Respondent during the period when the claim for the recovery of alimony was in court proceedings / documents confirming that the Defendant works in the organization as chairman of the council directors, has a free work schedule / documents confirming the Defendant's lack of permanent income / other documents.
According to paragraph 1 of Art. 83 of the RF IC in the absence of an agreement between the parents on the payment of alimony for minor children and in cases where the parent who is obliged to pay alimony has irregular, varying earnings and (or) other income, or if this parent receives earnings and (or) other income in full or partially in kind or in foreign currency, or if he does not have earnings and (or) other income, as well as in other cases, if the collection of alimony in proportion to the earnings and (or) other income of the parent is impossible, difficult or materially violates the interests of one of the parties, the court has the right to determine the amount of alimony collected on a monthly basis in a fixed amount or simultaneously in shares (in accordance with Article 81 of the RF IC) and in a fixed amount.
Based on paragraph 2 of Art. 83 of the RF IC, the size of the fixed sum of money is determined by the court based on the maximum possible preservation of the child's previous level of security, taking into account the material and family situation of the parties and other noteworthy circumstances.
The Respondent does not pay to the Claimant the alimony collected by the decision of the ______ court of ______ dated "___" ________ _____, and has an arrears in their payment, formed through the fault of the Respondent. This is evidenced by a judicial act that has entered into legal force, according to which alimony for the maintenance of a minor child was collected from the Defendant / the order of the bailiff-executor on the initiation of enforcement proceedings on the basis of the writ of execution against the Defendant / the order of the bailiff-executor, which established the Defendant's debt for alimony for a certain period / materials of enforcement proceedings, from which it follows that the Defendant was repeatedly warned about criminal liability for non-fulfillment of alimony obligations, the bailiffs-executors repeatedly took from the Defendant written explanations about the reason for non-payment / a judicial act that entered into force, by which the Defendant was deprived of parental rights due to malicious evasion from the payment of alimony / calculation of debt on the payment of alimony submitted by the Claimant / calculation of the penalty for late payment of alimony submitted by the Claimant / other documents. There is no evidence confirming the existence of objective obstacles to the timely payment of alimony for the maintenance of the child / evidence of the Defendant's repayment of the alimony debt. The Defendant did not submit the calculation of the alimony debt.
In accordance with the above, guided by Art. Art. 80, 81, 83, 115 of the Family Code of the Russian Federation, Art. Art. 131, 132 Civil procedural code Russian Federation,
1. To recover from the Respondent alimony for a child (children): ________, "___" __________, living (living) together with the Claimant at the address: ____________________, in the amount of _________.
1. To recover from the Respondent a forfeit for late payment of alimony for a child (children): ________, "___" __________ b., Living (living) with the Claimant at the address: ____________________, in the amount of _________.
Applications:
1. Evidence confirming the existence of a marriage relationship between the Claimant and the Respondent: a copy of the marriage certificate from "___" ______ ___, N ___.
2. Evidence confirming the termination of the marriage relationship between the Plaintiff and the Defendant: a copy of the certificate of divorce between the Plaintiff and the Defendant from "___" ______ ___ N ___ / a copy of the ______ court decision from "___" ________ _____ N _____ on divorce ...
3. A copy of the birth certificate of the child (children).
4. Evidence that the Respondent is the parent of a minor child (minor children): child's birth certificate / child's birth certificate, produced by the registry office, in which the Respondent / paternity certificate / entered into force is indicated in the column "father" a judicial act on the establishment of paternity or on the establishment of the fact of recognition of paternity / an act record on the establishment of paternity made by the registry office / other documents.
5. Evidence that the Defendant is employed, has a permanent place of work, regular income, stable earnings: the Defendant's work book / certificate from the Defendant's place of work / income certificate of the Defendant (form 2-NDFL) / documents confirming that the Defendant has a permanent source of income allowing you to maintain a minor child (minor children) / other documents.
6. Evidence that the Respondent is (was) an individual entrepreneur / has an irregular, changing income / does not have an official place of work, permanent earnings / there are other grounds for collecting alimony from the Respondent under Art. 83 of the IC RF: certificate of income of the defendant (form 2-NDFL) / work book of the Respondent / documents confirming that the Respondent has the status of an individual entrepreneur / application of the Respondent for state registration of the termination of an individual's activity as an individual entrepreneur, sent to the Inspectorate of the Federal Tax Service of Russia during the period of stay a claim for the recovery of alimony in court proceedings / notification of the Defendant's deregistration with the tax authority as an individual entrepreneur in the Federal Tax Service of Russia, received by the Respondent during the period when the claim for the recovery of alimony was in court proceedings / documents confirming that the Respondent works in the organization as chairman of the board of directors, has a free work schedule / documents confirming the Defendant's lack of permanent income / other documents.
7. Evidence that the Respondent does not pay the Claimant the alimony recovered by the court decision and has an arrears in their payment, formed through the fault of the Respondent: a judicial act entered into legal force, according to which alimony for the maintenance of a minor child was collected from the Respondent / the bailiff's order - the executor to initiate, on the basis of a writ of execution, enforcement proceedings against the Respondent / the order of the bailiff, who established the Respondent's debt for alimony for a certain period / materials of enforcement proceedings, from which it follows that the Respondent was repeatedly warned about criminal liability for failure to fulfill alimony obligations, bailiffs-executors repeatedly took from the Defendant written explanations about the reason for non-payment / a judicial act that entered into force, by which the Defendant was deprived of parental rights due to malicious evasion of payment of alimony / calculation of arrears in payment of al names submitted by the Claimant / calculation of the penalty for late payment of alimony submitted by the Claimant / other documents.
8. Copies of the statement of claim and documents attached thereto to the Respondent.
9. Power of attorney of the representative from "___" ______ ___ city N ___ (if the statement of claim is signed by the representative of the Claimant).
"___" __________ ____ G.
Representative of the Claimant:
________________ / Petukhov O.A.
(signature) (full name)
Judicial acts attached to the statement of claim:
Cassation ruling of the Moscow City Court dated January 29, 2016 N 4g-429/2016
Determination of the Moscow City Court of 20.05.2016 N 4g-4877/2016
Determination of the Moscow City Court of 14.08.2015 N 4g / 6-8576 / 15
Appeal ruling of the Moscow City Court dated 09/04/2015 in case N 33-30043 / 2015
Objection to the statement of claim for the recovery of alimony for a minor child (minor children):
To the magistrate judicial area № _____
Defendant: __________ (full name) ___________
the address: _______________________________,
telephone: _____________________________,
e-mail mail: ____________________________
Representative of the Respondent: Petukhov Oleg Anatolyevich
the address: _______________________________,
phone: 8-929-527-81-33, 8-921-234-45-78,
e-mail mail: ____________________________
Plaintiff: ____________ (full name) ____________
the address: _______________________________,
telephone: _____________________________,
e-mail mail: ____________________________
Case N ________________________________
Objection to a statement of claim for the recovery of alimony
for a minor child (minor children)
"__" _______ ___, the magistrate of court district No. _____ The Plaintiff filed a statement of claim to recover from the Defendant alimony for the common child (common children) of the Plaintiff and the Defendant: ________, "___" __________ b., living (living) together with the Claimant at: ____________________.
The defendant objects to the satisfaction of these claims in connection with the following.
The defendant provides support to his minor child (minor children), duly fulfills his obligations to support the minor child (minor children). This is evidenced by the documents confirming the Defendant's transfer to the Claimant of funds for the maintenance of the child by postal orders, transfers to the Claimant's bank card / other documents / other evidence of the Defendant's provision of monthly regular financial assistance to the Claimant for the maintenance of the child from the moment of his birth / from another moment to the present time / until another moment. There is no evidence that the Respondent avoided (is evading) the provision of material assistance for the maintenance of the child (children).
In accordance with paragraph 1 of Art. 80 of the RF IC, parents are obliged to support their minor children. The procedure and form for providing maintenance to minor children are determined by the parents independently. Parents have the right to conclude an agreement on the maintenance of their minor children (agreement on the payment of alimony) in accordance with Ch. 16 IC RF.
According to paragraph 2 of Art. 80 of the RF IC in the event that parents do not provide maintenance to their minor children, funds for the maintenance of minor children (alimony) are collected from the parents in court.
The Defendant pays the Claimant the alimony collected by the decision of the ______ court of ______ dated "___" ________ _____, in full within the prescribed time frame / The Defendant has no debt in the payment of the alimony / The Defendant has an arrears in the payment of the alimony, which was not the fault of the Defendant. This is evidenced by the evidence that the Defendant paid alimony in full within the prescribed time frame / receipts / other documents confirming the Defendant's repayment of the alimony debt / proof of the Defendant's absence of fault in the alimony debt / evidence that the alimony debt was formed through the fault of other persons: - for late payment of wages / delays / incorrect transfer of alimony by banks / other / evidence of valid reasons for non-payment of alimony by the Respondent / evidence of objective obstacles to the timely payment of alimony by the Respondent / calculation of the alimony payment arrears presented by the Respondent.
According to paragraph 2 of Art. 115 of the RF IC in the formation of a debt through the fault of a person obliged to pay alimony by a court decision, the guilty person pays to the recipient of alimony a forfeit in the amount of one second percent of the amount of unpaid alimony for each day of delay. The recipient of alimony shall also have the right to recover from the person who is liable to pay alimony, who is guilty of late payment of alimony, all losses caused by the delay in fulfilling alimony obligations in the part not covered by the forfeit.
Thus, the grounds for collecting a penalty from the Defendant for late payment of alimony on the basis of paragraph 2 of Art. 115 of the RF IC are absent.
Based on the foregoing, guided by Art. Art. 80, 81, 83, 115 of the Family Code of the Russian Federation, p. 2 h. 2 tbsp. 149 of the Civil Procedure Code of the Russian Federation, I ask for the satisfaction of the Claimant's claims for the recovery from the Respondent of alimony for a child (children): ________, "___" __________ b., Living (living) with the Claimant at the address: ____________________, in the amount of _________ / on the recovery from the Respondent of a forfeit for late payment of alimony for a child (children): ________, "___" __________ b., living (living) with the Claimant at the address: ____________________, in the amount of _________, refuse.
Applications:
1. Evidence that the Respondent provides maintenance to his minor child (minor children), properly fulfills his obligations to support the minor child (minor children): documents confirming the Defendant's transfer to the Claimant of funds for the maintenance of the child by postal orders, transfers to a bank card Claimant / other documents / other evidence of the Defendant's provision of monthly regular financial assistance to the Claimant for the maintenance of the child from the moment of his birth / from another moment to the present / until another moment.
2. Evidence that the Respondent pays the Claimant the alimony collected by the court decision in full within the prescribed time limits / the Respondent has no debt in the payment of the alimony / the Respondent has an indebtedness in the payment of the alimony that was not due to the Respondent's fault: evidence of the payment by the Respondent of the alimony in the established deadlines in full / receipts / other documents confirming the Defendant's repayment of the alimony debt / proof of the Defendant's absence of fault in the alimony debt / proof that the alimony debt was formed through the fault of other persons: due to late payment of wages / delays / incorrect transfer of alimony by banks / other / evidence of valid reasons for non-payment of alimony by the Respondent / evidence of objective obstacles to the timely payment of alimony by the Respondent / calculation of the alimony payment arrears submitted by the Respondent.
3. Power of attorney of the representative from "___" _________ ____, N ______ (if the objection is signed by the representative of the Respondent).
"___" __________ ____ G.
Defendant's representative:
________________ / Petukhov O.A.
Alimony for providing the child with everything necessary can be appointed by the court in two versions: as a share of the earnings of one parent and as a sum of money of a certain amount, transferred monthly by the payer.
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Specific examples from judicial practice
All cases for the appointment of alimony are considered by the court individually, the decision is made based on the specific situation, prevailing in the family.
Partial satisfaction of the claim
Citizen A applied to the court in 2014 with an application for the appointment of alimony for her minor daughter, born in 2010 from her ex-husband, citizen B. In the application, citizen A indicated that she and her husband had been living separately since 2012, and since 2013 they were officially divorced ... All this time, she did not receive any financial assistance from her ex-spouse for the maintenance of the child and independently provided her daughter with everything she needed.
Citizen A in her application demanded the appointment of alimony in a fixed amount on the basis that citizen B is an individual entrepreneur and has an unstable income, and also receives part of the income in kind.
The woman asked for alimony in the amount of three living wages, indicating that this is exactly how much she spends on food, clothing, payment kindergarten, medicines, toys and organization of the daughter's leisure time. In addition, citizen A asked the court to recover, since at that time her husband did not live with her and did not take part in the upbringing and maintenance of the child.
The court heard the testimony of citizen B, considered the documents provided (in particular, the child's birth certificate) and decided to satisfy the claim of citizen A in part.
Alimony was awarded at a fixed rate, since citizen B does have an irregular income. The payment was assigned in the amount of 1.15 subsistence minimum for a minor in the region, since the defendant was willing to pay exactly this amount, and citizen A did not provide documentary evidence that she spends more on a child.
The court refused to recover alimony for the past period, since citizen B provided a receipt for the monthly receipt of money from the defendant for the maintenance of the child, written by citizen A in 2013.
Also, on the basis of the plaintiff's request, the court ordered the state duty for the consideration of the case to be paid to the defendant.
Citizen E applied to the court to collect alimony in a fixed amount from citizen H, with whom she was in a registered marriage from 2008 to 2013 and has two children born in 2009 and 2011. Citizen E indicated in a statement that earlier the court had ordered alimony in the amount of 1/3 of the earnings of citizen H, but this amount is clearly not enough to support two children.
In addition, citizen N is engaged in a part-time job (in addition to official work as a janitor, he is engaged in installing plastic windows) and has an income from which alimony is not collected. Citizen E on the application asked the court to establish alimony in the amount of 50% of the subsistence level for each of the children.
The court examined the documents provided, listened to witnesses and ruled to dismiss the claim. The reason for the refusal was the defendant's permanent place of work, his receipt of a regular income, as well as the lack of documentary evidence of his additional earnings.
The Justice of the Peace concluded that claim The plaintiffs are conditioned by the receipt of previously awarded alimony not in full and by the attempts of citizen N to evade payment of the full amount of alimony (in the amount of 1/3 of all types of his income, as previously decided by the court).
That is, the problem is not in the amount of alimony, but in the defendant's desire to hide the income. This issue is dealt with by the bailiff service and the prosecutor's office. The earlier decision of the court remained unchanged, and the defendant has the right to appeal the results of the meeting within 10 days.
The plaintiff, citizen D., applied to the court with an application for the appointment of alimony for the maintenance of two young children and herself from her ex-spouse, citizen T. Since citizen T did not have a permanent job and at the same time paid alimony for the maintenance of a child from a previous marriage, the plaintiff asked to appoint alimony in a fixed sum in the amount of 0.5 of the subsistence level for himself and in the amount of the subsistence level for each of the children.
After considering all the documents provided and interviewing witnesses, the court decided to satisfy the claimed claim in full... The grounds for this decision were: the defendant's lack of a permanent place of work, the existence of alimony obligations in relation to the older child, documentary evidence of the plaintiff's expenses for children (citizen D provided the court with receipts from stores and pharmacies collected within one month).
Because the appointment of alimony in a shared amount would significantly affect the interests of the children(the amount received would be extremely small and would be transferred irregularly), the defendant did not have a permanent job, the court decided to pay a fixed amount of alimony.
Court decisions and legal advice
There are many sites on the Internet where you can read the court rulings and even get clarifications from lawyers on the issue of the appointment of alimony in a fixed amount. You can search for such information on the forums. For instance, .
Find case materials and expert advice can be found on women's forums and sites dedicated to motherhood.
Websites of companies and private lawyers providing various legal services post on their pages materials of cases considered in court, which can also serve as an example.
Each magistrate court and court of general jurisdiction has its own page on the Internet.... On these sites, there is necessarily information on all considered cases, including alimony issues.
As well as options for the consideration of cases by the court, questions of citizens and comments of lawyers can be viewed on special legal portals, for example, on a social network for lawyers.
In any case, the court makes a decision that guarantees the greatest degree of respect for the best interests of the child.
Parents can use the available examples of court orders to prepare for court session to provide complete information and avoid misunderstandings.
FIFTH ALIMENT. THE SUPREME COURT HAS GENERALIZED THE JUDICIAL PRACTICE IN CASES ON RECOVERY OF ALIMONIES FOR MINORS AND DISABLED CHILDREN
A. TARASENKOVA
Children grow up poorly without money - everyone agrees with this. However, disputes about the allocation of content - alimony cases - usually have to be settled in court, and independently, without the help of a lawyer. On this path, an overview of the most common mistakes and emerging issues prepared by the Supreme Court of the Russian Federation will be very useful (Review of judicial practice in cases related to the recovery of alimony for minor children, as well as for disabled minor children, approved by the Presidium of the Supreme Court of the Russian Federation on May 13, 2015 .).
When to go to the district court and when to the magistrate
The magistrate is asked to resolve disputes:
- on the collection of alimony for minor children;
- about changing the amount of alimony;
- on the collection of additional costs;
- on the recovery of a forfeit due to late payment of alimony, including in the amount exceeding 50 thousand rubles. (Clauses 1 and 4 of Part 1 of Article 23, Article 24 of the Code of Civil Procedure of the Russian Federation).
However, if, along with the demand for the recovery of alimony, there is a demand for deprivation of parental rights, for restriction of parental rights, for establishing paternity, for determining the child's place of residence, then the dispute should be considered by the district court (part 3 of article 23 of the Code of Civil Procedure of the Russian Federation).
Which court to apply to
As a general rule, claims for the recovery of alimony can be brought by the plaintiff to the court at his place of residence (part 3 of article 29 of the Code of Civil Procedure of the Russian Federation), this also applies to questions about increasing the amount of alimony, about collecting a penalty due to late payment of alimony.
However, if the person paying alimony requires a reduction in the amount of alimony or exemption from payment, then the general rules of jurisdiction established by Art. 28 Code of Civil Procedure of the Russian Federation. That is, the claim is filed at the place of residence of the defendant - the person receiving alimony.
No court order can be issued if child support is already being paid
Many women prefer to apply for a court order, which is an easier and less formal way than filing a claim. A court order is issued by a magistrate at the request of an interested person (subparagraph 1 of paragraph 1 of article 23 of the Code of Civil Procedure of the Russian Federation). However, in order to issue an order, it is necessary that:
- a claim was made to collect alimony for minor children;
- this requirement was not related to the establishment of paternity, contestation of paternity (motherhood) or the need to involve other interested parties (Article 122 of the Code of Civil Procedure of the Russian Federation).
In other words, if the person obliged to pay alimony (as a rule, it is the father) is already paying alimony by court order - it does not matter for children or for other persons - then this issue can be resolved only by filing a claim. Moreover, the alimony recipient (or his representative) must participate in the process. This is true, because a new decision to collect alimony may result in a reduction in the amount already collected.
Alimony for previous years by order not to collect
Alimony can be collected for three years, which precede going to court (clause 2 of article 107 of the RF IC). However, this is only possible by filing a claim, since the court must establish that:
- before going to court, measures were taken to obtain alimony;
- the alimony was not received due to the evasion of the person obliged to pay them from his duties.
Install this necessary minimum circumstances is possible only after examining the additional arguments of the parties, therefore, according to the court order, it is impossible to receive alimony for the previous period.
As evidence, appeals to the defendant demanding the payment of alimony are accepted, including registered letters with notification or e-mails, the plaintiff's appeal to the magistrate with an application for the issuance of a court order for the recovery of alimony for a minor child (if the court order was subsequently canceled), appeal to law enforcement agencies with a statement about the search for the defendant, recognition of the claim by the defendant, etc.
A claim must be filed to award a lump sum
You cannot apply for an order to receive lump sum alimony. Even if the magistrate issues such an order, it can be challenged. The claim for the recovery of alimony in a fixed amount of money or in shares and in a fixed amount of money must be considered by the court in the course of action.
Does the court have the right to return the statement of claim for the recovery of child support
Yes, this is possible, in particular if:
- plaintiff in set time did not follow the instructions of the judge, fixed in the ruling on leaving the statement of claim without movement (Article 136 of the Code of Civil Procedure of the Russian Federation);
- the case is beyond the jurisdiction of this court (clause 2 of part 1 of article 135 of the Code of Civil Procedure of the Russian Federation);
- the claim was filed by an unauthorized person who does not have the right to sign the claim and file it (clause 4 of part 1 of article 135 of the Code of Civil Procedure of the Russian Federation);
- from the plaintiff, prior to the issuance of a court ruling on the acceptance of the statement of claim, an application was received to return the claim (clause 6 of part 1 of article 135 of the Code of Civil Procedure of the Russian Federation).
A loan is not an excuse to reduce the amount of alimony
It happens that the courts, without sufficient grounds, reduce the amount of alimony - the shares specified in the Family Code of the Russian Federation (clause 1 of article 81). Arguments are used that the mother already has a high income, that the father has to pay off the loan and support his other children. When reviewing the decision, the higher courts rightly point out that neither a higher mother's salary, nor loans, nor the need to support other children are grounds for reducing the amount of alimony.
Article 81 of the RF IC provides that alimony is collected monthly in the following amounts:
- 1/4 - for one child;
- 1/3 - for two children;
- 1/2 - for three or more children.
And if the material and marital status of the defendant allows him to pay alimony in the specified amount, and the recovery of alimony in the specified amount will ensure that the children retain their previous level of material security, then there is no reason to change the size.
Deterioration in health, credit obligations, payment of rent - these circumstances in themselves do not indicate a deterioration in the financial situation of the plaintiff and the inability to support children.
In addition, if each of the parents has children, the amount of alimony from one of the parents in favor of the other, less well-off, is determined in a fixed amount of money collected monthly (clause 3 of article 83 of the RF IC).
Under what conditions is half of the alimony transferred to the card?
Of course, the father has the right to demand an account of the expenditure of alimony, since these amounts should be spent on the maintenance, upbringing and education of the child (clause 2 of article 60 of the RF IC) and because parental rights cannot be carried out in contradiction with the interests of children (clause 1 of article 65 of the RF IC). And the parent paying alimony has the right to ask the court to decide on the transfer of 50% of the amounts (no more) to be paid to the accounts opened in the name of the child (children) in banks.
The decision, to be sure, is not the most successful, because the money for the maintenance of the child is needed every day, and in full. Justices of the peace sometimes decide to transfer 50% to the card only on the basis that the father has a lot of earnings and the amount of alimony exceeds the subsistence level.
However, such a decision can be made when the misappropriation of alimony is proven, when the mother does not fulfill her duties assigned to her by the Family Code of the Russian Federation (see Review of the judicial practice of the Supreme Court of the Russian Federation for the I quarter of 2012, approved by the Presidium of the Supreme Court of the Russian Federation on June 20, 2012 g.), and not simply because it is more convenient for the alimony payer.
When alimony is awarded as a lump sum
Or at the same time in shares and a fixed amount?
The court has the right to determine the amount of alimony in a lump sum or simultaneously in shares and in a lump sum in the following cases:
- if the parent who is obliged to pay alimony has irregular, variable earnings and (or) other income, or
- if the specified parent receives earnings and (or) other income in whole or in part in kind or in foreign currency, or
- if he has no earnings and (or) other income;
- in other cases, if the collection of alimony in proportion to the earnings and (or) other income of the parent is impossible, difficult or materially violates the interests of one of the parties.
The main thing is for the child to maintain the same level of his life and security.
Other circumstances are also taken into account, including the need to pay additional education, circles, sections, etc.
As a rule, alimony in a fixed amount is collected from entrepreneurs, since business is a risky business and income is irregular and changing in nature.
Often in support of calamity financial situation entrepreneurs file tax returns, but usually unsuccessfully. This is understandable: for example, the tax declaration of the payer of UTII (single tax on imputed income) does not reflect the real income of the entrepreneur, but is used to calculate the imputed, potentially possible income. In the absence of other evidence that the financial situation does not allow paying alimony in the same amount, references to the tax return will not be accepted.
On one of the cases tax office confirmed that the income of the defendant-entrepreneur amounted to 6,500 rubles. per month. However, in the process it was found that the "poor" defendant rents non-residential premises which is used by him for retail, wherein monthly size the rent is much higher than his income. Under such conditions, the court came to a reasonable conclusion that the established income of the defendant does not correspond to his actual financial situation.
As a rule, alimony in a lump sum is awarded in the absence of a permanent job for the defendant, but the courts must assess the nature of this work, establish whether it is in fact a fickle job. If the court establishes that the defendant has a permanent, regular income, then, as a rule, alimony is awarded in shares.
An interesting "era of mercy"
The child's father, being the second person in a construction company with an earnings of 14,500 rubles, managed to pay 18 thousand rubles under a loan agreement. monthly, and in the documents submitted to the bank, a completely different salary appeared - about 45 thousand rubles.
Neither the magistrate nor the district court saw any contradictions here: the funds to pay the monthly payment under the loan agreement to the defendant were provided by his organization on the terms of an interest-free loan.
And only the regional court drew attention to the fact that the statement about such a blessing on the part of the LLC was made only in words, without any other evidence. And this is a direct violation of the rules of the Code of Civil Procedure of the Russian Federation, by virtue of which the defendant was obliged to provide evidence to substantiate his objections (Article 56). Following LLC, the courts showed exceptional favor to the defendant, releasing him from proving his objections.
Can adult and able-bodied children receive alimony
Sometimes the courts, without any reason, collect alimony for adult able-bodied children studying full-time in basic educational programs in organizations carrying out educational activities, mistakenly believing that such persons, before they reach the age of 23, also have the right to receive alimony from their parents ... At the same time, reference is made not only to the financial situation of the parties, but also to the fact that not only disabled people are recognized as disabled, but also persons studying full-time education at the age of up to 23 years (subparagraph 1 of paragraph 2 of article 9 of the Federal Law of December 17, 2001 N 173-FZ "On labor pensions in the Russian Federation").
However, this provision applies to cases of the payment of the survivor's pension, and not in any way to family relations which are regulated by the Family Code. The court has the right to attract parents to participate in additional costs for minors or disabled adult children in need in the presence of exceptional circumstances: serious illness, injury, the need to pay for outside care, etc. But the obligation of parents to support adult able-bodied children, including full-time students, is not provided for by the RF IC.
What does grandmother or grandfather have to do with it?
Even if a grandfather or grandmother (or both together) have surplus incomes, this is not a reason to impose on them the responsibilities of parents to support children. It must be proved that for an objective reason, parents do not have the opportunity to support their children. For example, a mother of three children asks for the recovery of alimony from her grandmother for one of her disabled children, whose father was sentenced to long term to imprisonment.
Is it possible to collect alimony before a court decision?
Yes it is possible. Prior to the entry into force of the decision on the recovery of alimony, the court has the right to issue a resolution on the temporary recovery of these amounts. The amount of alimony for children must correspond to the amount specified in Art. 81 RF SK (1/4, 1/3 or 1/2).
The need for such a temporary penalty, as a rule, is caused by the need to obtain information (sending a letter of order), to demand additional evidence. Or due to the fact that the defendant does not appear at the meeting and there is no information about his proper notification (registered letters are returned after the expiration of the storage period), as well as if the defendant was put on the wanted list.
The appointment of a period for reconciliation (clause 2 of article 22 of the RF IC) is not a basis for refusing to collect alimony if the father does not participate in the maintenance of the children. If the court finds that the defendant does not fulfill this obligation, then he has the right to issue an order on the temporary recovery of alimony until the final consideration of the case on divorce and recovery of alimony.
If one of the children becomes an adult
When the children on whom the alimony is being collected reach the age of majority at different times, then one of the children reaching the age of 18 entails a change in the amount of alimony determined court order(Clause 1, Article 81 of the RF IC).
However, at times, after reaching the age of one of the children, the debtor's employer often continued to withhold alimony in the same amount. In such cases, the debtors applied to the court with claims to reduce the amount of alimony, to terminate the recovery of alimony for an adult child, or to change the procedure for collecting alimony and other requirements. Accordingly, mothers often go to court with a claim to increase the amount of alimony collected if the alimony payer paid alimony for two or more children in proportion to earnings and (or) other income.
The fact that one of the two children has become an adult is the basis for increasing the amount of alimony collected for a minor child from 1/6 to 1/4 of all types of the defendant's earnings.
When is it possible to release from child support debts?
In the event of the payment of alimony for children, it is impossible to exempt from payment of the alimony debt or to reduce this debt by agreement of the parties (clause 1 of article 114 of the RF IC). However, the court has the right to do this at the suit of a person obliged to pay alimony (clause 2 of article 114 of the RF IC), if it finds that the failure to pay alimony was admitted due to the illness of this person or for other valid reasons and his financial and marital status does not give the ability to pay off the resulting alimony debt.
Good reasons, in particular, are recognized as incapacity for work and a call for an urgent military service getting severely injured. But staying in places of deprivation of liberty is not an unconditional basis for release in whole or in part from the payment of alimony arrears. It matters, in particular, whether the debtor refused to work without good reason, whether he took measures to pay off the debt after serving the sentence, whether there were objective reasons that make it impossible for him to pay off the debt after his release from prison (for example, disability).
If the debt was formed during the summer holidays
Often, when taking children for vacations, then alimony payers ask to be released from paying alimony arrears, referring to the fact that the debt was formed during the period when the children lived with them and were dependent on them, due to which they are not obliged to during the specified period were to pay child support for these children.
Justices of the peace sometimes partially exempt from paying alimony arrears due to the fact that the child lived with the father and the mother did not participate in the maintenance of the child. However, the superiors, appellate courts they look at it differently: the temporary residence of a child with a person liable for alimony during the summer holidays is not a basis for releasing the debtor from the alimony debt.
It's another matter if the child's place of residence has changed, and alimony continues to be collected. If the payer did not apply to the court in a timely manner with an application to terminate the collection of alimony from him, but independently stopped paying, then an alimony debt is formed, from the payment of which the magistrate can legitimately release.
Penalty and non-pecuniary damage
If an agreement on the payment of alimony has been concluded and a debt has arisen, the guilty person is liable in the manner prescribed by the agreement (Article 115 of the RF IC).
If the alimony is collected by a court decision, the payer pays to the recipient of the alimony a penalty - 1/2 percent of the unpaid alimony for each day of delay. All losses caused by the delay in the fulfillment of alimony obligations in the part not covered by the forfeit are also subject to recovery.
Since alimony must be paid on a monthly basis, the penalty is determined for each overdue monthly payment, based on the amount of this payment and the number of days of its delay, determined on the day of the court decision on the recovery of the penalty.
But there is no need to demand compensation for moral damage: the Family Code of the Russian Federation does not provide for compensation for non-payment of alimony for non-payment of alimony.
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Court decisions based on the application of the norms of Article 83 of the Family Code of the Russian Federation.
Art. 83 RF IC. Recovery of alimony for minor children in a fixed sum
Arbitrage practice
- ... is obliged to deliver content, the onset of disability or the presence of a disease that prevents the continuation of the previous job, the child's employment or his entrepreneurial activity). In accordance with Art. 83 of the RF IC, in the absence of an agreement between the parents on the payment of alimony for minor children and in cases where the parent who is obliged to pay alimony has irregular, changing earnings and (or) other ...
Decision No. 2-2500 / 2019 2-2500 / 2019 ~ M-2325/2019 M-2325/2019 dated July 25, 2019 in case No. 2-2500 / 2019
Oktyabrsky District Court of Krasnodar (Krasnodar Territory) - Civil and Administrative
Their underage children. This obligation is not made dependent on the presence or absence of the funds necessary for the maintenance of children by the parents. According to paragraph 1 of Article 83 of the RF IC, in the absence of an agreement between the parents on the payment of alimony for minor children and in cases where the parent who is obliged to pay alimony has irregular, changing earnings and (or) other ...
Decision No. 2-2477 / 2019 2-2477 / 2019 ~ M-1564/2019 M-1564/2019 dated July 24, 2019 in case No. 2-2477 / 2019
Kievsky District Court of Simferopol (Republic of Crimea) - Civil and Administrative
Parents do not provide maintenance to their minor children; funds for the maintenance of minor children (alimony) are collected from parents in court. In accordance with Part 1 of Art. 83 of the RF IC, in the absence of an agreement between the parents on the payment of alimony for minor children and in cases where the parent who is obliged to pay alimony has irregular, changing earnings and (or) other ...
Decision No. 2-455 / 2019 2-455 / 2019 (2-7321 / 2018;) ~ M-6662/2018 2-7321 / 2018 M-6662/2018 dated July 18, 2019 in case No. 2-455 / 2019
Krasnogorsk City Court (Moscow Region) - Civil and Administrative
Two children - one third, for three or more children - half of the earnings and (or) other income of the parents. By virtue of the provisions of cl. 1 and 2 tbsp. 83 of the RF IC in the absence of an agreement between the parents on the payment of alimony for minor children and in cases where the parent who is obliged to pay alimony has irregular, changing earnings and (or) other ...
Decision No. 2А-2494/2019 2А-2494/2019 ~ М-1862/2019 М-1862/2019 dated July 16, 2019 in case No. 2А-2494/2019
Leninsky District Court of Chelyabinsk ( Chelyabinsk region) - Civil and administrative
The parents' voluntary fulfillment of the obligation to support their minor children, based on the generally recognized presumption of good faith in parental care for children, by the Family Code of the Russian Federation in Art. 80 - 83, the content of alimony obligations, including their size, is regulated, and at the same time, the possibility of compulsory execution of this obligation by collecting alimony for minor children from parents in court is provided ...
Decision No. 2А-1710/2019 2А-1710/2019 ~ М-1060/2019 М-1060/2019 dated July 2, 2019 in case No. 2А-1710/2019
Leninsky District Court of Izhevsk ( Udmurtia) - Civil and administrative
It establishes the requirement for the court to take into account the material and marital status of the parties to the alimony obligation and other noteworthy circumstances (Articles 80, 81; Clause 1, Article 83; Clause 4, Article 113 of the RF IC). Thus, at the heart of legal regulation relations arising from compulsory execution parents of the obligation to support their minor children, there is a requirement ...
Decision No. 2-1385 / 2019 2-1385 / 2019 ~ M-882/2019 M-882/2019 dated July 2, 2019 in case No. 2-1385 / 2019
Pervomaisky District Court of Vladivostok (Primorsky Territory) - Civil and Administrative
A minor with a plaintiff. The case established that the minor Bichev B.A. is dependent on the plaintiff, the defendant does not provide material support to the child, by virtue of the requirements of Art. 83 RF IC from Bicheva A.S. in favor of Bicheva T.A. child support is subject to recovery. In this case, the court considers it necessary to collect alimony from the defendant in ...
Decision No. 11-48 / 2019 of June 28, 2019 in case No. 11-48 / 2019
Khabarovsk District Court (Khabarovsk Territory) - Civil and Administrative
Withdrawn> rub., In DD.MM.YYYY. - RUB, in DD.MM.YYYY. - rub. The cases allowing the court to deviate from this rule are established by Art. 83 RF IC. In accordance with paragraph 1 of Art. 83 of the Family Code of the Russian Federation, the court has the right to determine the amount of alimony collected on a monthly basis in a fixed amount in cases where ...
Decision No. 2-3142 / 2019 2-3142 / 2019 ~ M-2541/2019 M-2541/2019 dated June 26, 2019 in case No. 2-3142 / 2019
Khimki City Court (Moscow Region) - Civil and Administrative
And the transfer of the child for upbringing to another parent, guardian or curator or foster parents, alimony is collected in favor of these persons in accordance with Art. 81-83, paragraph 1 of Art. 84 of the RF IC. At the same time, the court explains that in accordance with Art. 119 SK RF, if in the absence of an agreement on the payment of alimony after the establishment of ...