Calculate child support debt. Alimony arrears application
Alimony obligations have long become an integral part of family legal relations. According to statistics, every year in Russia more than half of previously concluded marriages break up compared to the registration of relations in the registry office for the same period. Therefore, the features of the appointment of alimony for the maintenance of children and ex-wives are the cornerstone of the development of relations between former spouses. Not only online calculators and specially established formulas, but also bailiffs will help to correctly calculate the alimony arrears.
Despite the implementation of measures to prevent the occurrence of alimony arrears, as well as serious, alimony-bound persons are constantly moving from the category of payers to the category of debtors. Sometimes the amounts of debt accumulate almost for decades, forming debts up to several million rubles.
Despite the disappointing statistics on the number of debtors, the legislation does not take any additional more serious measures to collect debts, and also does not define additional provisions and circumstances to protect the interests of the injured party - minors.
Alimony can be accrued in several ways, on which the formation of debt and its actual size at the time of collection directly depend.
So, in accordance with the rules of law, as well as on the basis of general judicial practice, there are several ways of material assistance from one of the parents to their minor child:
- Payment of alimony on a voluntary basis without the conclusion of any agreements and other regulations governing the procedure for keeping a minor. In this case, the refusal to pay alimony cannot be considered the beginning of the formation of a debt, since the person liable to alimony did not conclude any agreements with the recipient of funds. The alimony debt begins to grow if the recipient has any executive document obliging the payer to transfer the agreed amount.
- Payment of funds for the maintenance of a minor in accordance with the concluded agreement on the payment of alimony. According to family and civil law, an agreement is recognized as an executive document on a par with the corresponding court decision, which means that the payer is obliged to pay a certain amount of funds to meet the needs of the child on a monthly basis or at another time established by the agreement.
- Payment of alimony due to the issuance of an appropriate court decision or court order. This document is an executive document that is subject to execution in accordance with the norms of the UK, Civil Code and Code of Civil Procedure of the Russian Federation.
The formation of debt and the need to conduct settlement transactions arises only if the recipient or payer of funds has executive documents that have legal force.
When filing a claim for the recovery of alimony for the past period, the amount of necessary deductions will be formed based on various data, including information on the financial condition of the payer's family, as well as on the level of his income. In this case, the amount set for collection will be recognized as alimony for a refund, without specifying it as a debt.
It is possible to collect alimony for the period preceding the filing of the corresponding statement of claim only for the last three years. It is impossible to demand the transfer of funds for previous years that make up a longer period, in accordance with the norms of family, civil and civil procedural legislation.
Types of debts for alimony
According to family law, maintenance debts can be divided into two broad categories, on which the future of not only the recipient, but also the payer depends.
Types of debts for alimony, which are provided for by the legislation of the Russian Federation:
Name of debt/ Characteristic |
Examples | Responsibility |
Formation of debt without the fault of the payer.
The debt is formed due to circumstances beyond the control of the payer and without his actual participation. |
Dismissal from work, in connection with which it became impossible to pay alimony. | Most often, when these circumstances are confirmed, the alimony-obliged person is either completely exempted from paying alimony for the specified period, or partial concessions are given to him, or the citizen is given the opportunity to pay by installments. |
Illness of the payer or a member of his family, in which the provision of funds for the maintenance of the dependent has become unattainable. | ||
The illness of the alimony, in which he is not able to carry out labor activities, as well as have other sources of income, during the period of registration of disability. | ||
The formation of debt through the fault of the alimony.
Most often occurs in the event of circumstances of non-payment due to the direct participation of the alimony in the process of forming a debt. |
Malicious evasion of the payment of alimony, which occurs in the event of any personal reasons for non-payment of funds to provide for a minor. | Punishment for non-payment of alimony can be formed by bringing the non-payer to civil, administrative and criminal liability, which can manifest itself in the form of fines, corrective and compulsory labor, as well as imprisonment for a certain period. |
The desire to "teach a lesson" and "punish" the former spouse for divorce or leaving the family. |
The provisions of the articles of these regulations fix the features in accordance with which the calculation of the debt for alimony is carried out according to the average wage established in the Russian Federation at the time of the proceedings on debt collection.
If the debtor, for some reason, does not provide valid information about his income, or carries out labor activity without official employment, the amount of alimony is calculated in accordance with the average wage in the Russian Federation.
In case of non-payment of alimony in the period from September 2019 to February 2020, the amount of alimony will be formed from the average annual salary for 2019, which amounted to approximately 35,900 rubles per month, as well as from the data on the average salary of Russians in January 2020 - 38,900 rubles. and February 2020 - 40,443 rubles.
Based on this, for the entire period of debt formation, if necessary, to pay funds for the maintenance of one child, the alimony must pay:
((35900 × 4 months + 38900 + 40443) / 100%) × 25% = 55735.75 rubles
Both the annual amount of average earnings and the average earnings in Russia for each month of delay can be taken into account, depending on the court decision and the methods for calculating the bailiffs.
The amount of debt may take into account the peculiarities of the beginning of new payments if the debt is calculated in less than a month. Then the average daily earnings of a citizen are calculated, according to the data on the average salary in the specified month, and multiplied by the number of days of delay.
In addition to the obligatory payment of debt on alimony, a citizen may be assigned other financial responsibility for non-compliance with the provisions on material security for the interests of a minor.
When concluding an agreement on the payment of alimony, in the event of a debt, the payer of funds may be liable in the form of a fine or penalty fee for each day of delay in payment, if such provisions have been introduced in the “responsibility of the parties” clause.
If bailiffs were involved in the calculation and collection of debts, then in addition to the debt, the citizen is obliged to pay an enforcement fee in the amount of 7% of the amount of the debt as payment for the services of bailiffs. Moreover, 7% is collected from the debtor together with the established amount of the debt.
Also, an administrative and criminal case may be initiated against the non-payer, the consequences of which may be fines and other sanctions.
Recipients of funds are not always able to calculate the amount of alimony or debt due to them due to the lack of information to which government agencies have access, so it is best to entrust the determination of the amount of debt to professionals.
Whatever the reason for the debt on alimony, the payer is obliged to pay it. And the law provides for precise and simple methods of calculating debt.
Alimony debt may arise in the event of non-payment or payment in an amount less than that established by the alimony agreement, court decision or court order.
Debts can be caused by...
- financial difficulties due to lack of work, illness or other circumstances;
- erroneous underestimation of the amount of maintenance payments when deducted from earnings;
- lack of information about the location or details for transferring the recipient's funds;
- other.
For each of these cases, the legislation provides for a method for calculating debt (in the Family Code of the Russian Federation, in the Federal Law "On Enforcement Proceedings", in a number of government regulations).
In what cases is the payment of debt on alimony carried out?
First rule. The calculation of debt on alimony is carried out in two cases:
- if there is a court decision on the recovery of alimony;
- if the parties have entered into a maintenance agreement.
In other cases, there can be no debt. For example, if, after the dissolution of the marriage, the mother of the child did not apply for alimony, but after several years decided to file a lawsuit for the recovery of alimony from the time of the divorce, this is not a question of alimony arrears, but of. There are not so many grounds for such a charge.
Second rule Concerning - alimony debt can only be claimed for the last three years. Even if the writ of execution is dated five years ago, the bailiff will calculate the maintenance debt on it only for last 3 years. An exception is the debtor's evasion from paying child support, the consequence of which will be the payment of debt for the entire period of evasion, and not for the last three years.
Methods for calculating alimony arrears
The alimony debt can be calculated in several ways, depending on the procedure for collecting alimony provided for by the alimony agreement or a court decision. Each of these methods is regulated by the relevant legislation.
- based on magnitude living wage, which is installed in a specific region or throughout the country;
- based on size average wage in the country.
- based on size debtor's income.
The procedure for calculating the debt for alimony based on the living wage
This method is applied in the event that alimony is withheld.
The amount of the debtor's income is not taken into account. To calculate the debt, the subsistence minimum established in the region or country is taken into account. The amount of maintenance payments is assigned in multiples of the subsistence minimum, depending on the circumstances of the case (for example, 0.5 or 2 subsistence minimums).
Since the cost of living changes quarterly, the bailiff makes a quarterly calculation of the debt (based on the latest value) and .
Example:
Monthly maintenance payments in the amount of 1.5 living wages were assigned from September 01, 2014. Alimony has not been paid for 5 months. The bailiff calculated the debt on February 01, 2015, using the amount of the subsistence minimum in Moscow in the first quarter of 2015 - 13,896 rubles, obtained according to Rosstat.
The formula for calculating child support arrears is:
The amount of debt = (the amount of alimony appointed by the court, a multiple of the subsistence minimum * the amount of the subsistence minimum in Moscow in the billing period) * the period of non-payment of alimony
Alimony arrears are calculated as follows:
1.5 living wages x 13,896 rubles) x 5 months = 104,220 rubles.
The procedure for calculating alimony arrears based on the size of the average salary
This method is used when...
- if the debtor does not have documentary evidence of income for the period the debt arose (or the debtor does not want to provide this documentary evidence);
- if the income was obtained informally;
- if there is no income.
The procedure for calculating debt is simple. The value is taken as the basis, from which the share of alimony is calculated (determined by the alimony agreement or established by the court). Received the share is multiplied by the number of billing months- this is how the amount of debt is determined for the entire period during which alimony debt arose.
Since the value of the average salary changes periodically, the alimony arrears are recalculated once a quarter.
Example:
On July 1, 2014, the court set child support at ¼ of the parent's income. However, the alimony payer did not provide data on the sources and amounts of his earnings. There were no child support payments from the debtor.
The average salary in Moscow in the first quarter of 2015 amounted to 53,955 rubles. Based on these data, on February 1, 2015, the bailiff calculated the debt for 7 months of non-payment of alimony according to the following formula:
Amount of debt \u003d monthly deductions (average salary x share of earnings) x number of months of the billing period
The calculation of alimony according to the above formula is carried out as follows:
(53,955 * 0.25) * 7 months = 94,421.25
The procedure for calculating the debt for alimony based on the income of the debtor
This calculation method is used if the debtor has an official source of income, from which, for some reason, maintenance payments were not withheld for a certain period.
Expert opinion
Alexey Petrushin
Lawyer. Specialization in family and housing law.
The procedure for calculating the debt is as follows. First of all, the bailiff determines the debtor's income from which alimony can be withheld (guided by a special legislative act - the List of types of earnings and income from which alimony for minor children is deducted). Mandatory deductions are deducted from income (13% - personal income tax). From the remaining amount, the share of alimony is calculated (1/4, 1/3, ½ - established by the alimony agreement or court decision). The amount of alimony received is multiplied by the number of months during which maintenance obligations were not fulfilled.
Example:
From May 1, 2014, the court ordered child support for three children in the amount of 1/3 of the income to an employee of the FreeDom enterprise. According to the data provided by the employer and the tax authority, the employee's salary is 30,000 rubles per month, including salary and bonus. However, in the period from May 1 to January 1, 2015, the accounting department of the FreeDom enterprise did not deduct any amounts of money from the alimony payer's salary in favor of the alimony recipient. For 8 months, a debt was formed, the amount of which the bailiff calculated according to the following formula:
Amount of debt \u003d Amount of earnings (amount of wages - tax deductions) * size of the share * number of months of the billing period
The amount owed is calculated as follows:
(30,000 - 13%) * 0.33 * 8 months = 68,904 rubles
Application for the calculation of arrears of alimony. Sample Application
So, if alimony has not been paid for a long time and a debt has arisen, it is necessary to calculate it correctly. If the bailiff does not calculate alimony on his own initiative, the alimony claimant should file.
The submission of such an application is regulated by Art. 50 FZ "On Enforcement Proceedings". According to this legal norm, both the payer and the alimony collector have the right to familiarize themselves with the materials of the enforcement proceedings.
The application should be addressed to bailiff-executor, in the production of which there is a case on the recovery of alimony. The application is drawn up in free form, in accordance with the basic rules of office work.
The application must be submitted in two copies. One copy is attached to the materials of enforcement proceedings, and the second, with a note on the date of filing and acceptance for consideration, remains with the applicant.
Calculation of debt by a bailiff. Decree on the calculation of debt
The bailiff is not entitled to refuse to provide information on the amount of debt of the alimony payer to the recoverer.
Upon receipt of the application, the bailiff must consider it within 10 days. The next day after the decision on the calculation of the debt, the bailiff must send the payer and the recoverer of alimony documents on the calculation of the debt - a copy of the decision.
Like other decisions made by the bailiff in the process of enforcement proceedings, the decision to calculate the debt for alimony issued in the form of a decision. However, a direct calculation of the amount of debt may take the form of a separate document attached to the decision.
The decision must include the following information:
- The basis for calculating the debt on alimony (statements of the recoverer or debtor);
- Information about the claimant and the debtor;
- Settlement period for which alimony was not paid and the debt is calculated;
- The method of calculating the debt (according to the subsistence minimum, according to the average wage, according to the official earnings of the alimony payer);
- Amount of debt.
The resolution on the calculation of alimony debt is most often used by the alimony recipient for. Although this document is not binding on the court, it can be conclusive evidence of existing debt and serve as confirmation of claims. The recipient also has the right to use the calculation of alimony to apply to the court for an increase in the size of the debt (indexation, collection of a penalty for alimony).
The debtor may also need to calculate the maintenance debt - to apply to the court for a reduction in the amount of the debt or for release from the debt, if there are legal grounds for this.
Exemption from alimony arrears
The law provides for the right of the debtor to apply to the court for - partially or completely. The basis for such an appeal may be valid reasons that prevented the fulfillment of maintenance obligations - illness, difficult financial situation, changes in marital status. If the court considers these reasons to be sufficiently valid, and the evidence is convincing, it may completely or partially write off the alimony debt. On the basis of such a court decision, the executive service must review the amount of the debt.
More useful information in the article "".
Appeal against the decision on the calculation of debt on alimony
Any illegal actions of the bailiff (for example, refusal to calculate the debt) can be appealed by the person concerned.
During 10 days from the moment when it became known about the violation by the bailiff of the rights of the person concerned (the recipient or payer of alimony), the latter may file a complaint with a higher official of the bailiff service. An appeal is also subject to a decision on the calculation of alimony arrears, if, in the opinion of the interested party, the calculation was made incorrectly.
You need to remember:
- Alimony arrears are formed both through the fault of the payer and through the fault of third parties.
- Calculations are made in the presence of an agreement or a court order - according to methods and formulas.
- The calculation of debt on the basis of a living wage is suitable for alimony in a fixed form. The PM for the region is taken as the basis, from which any indicator can be set - from 0.5 to 2 sizes. Indexation of alimony - annually.
- The calculation of debt based on the average wage is based on Rosstat data. Suitable in cases where the debtor has no official income or he hides it.
- The calculation as a share of earnings provides for the entire period of non-payment of alimony.
- Bailiffs do the calculations.
- The child support payer can apply for an exemption or reduction in payments. But this requires weighty arguments, for example, the birth of a new child in the family.
- Previous settlements of debts can be appealed to the SSP or in court.
The application of formulas and calculation methods requires accuracy. It is necessary to take into account the father's income, his desire to help the child, family circumstances and other factors. Not everyone is able to collect the debt in full. And this is due to errors in the order of actions. By delaying in contacting the bailiff, the mother runs the risk of not receiving money for the child at all. Errors in statements and calculations also lead to problems. You also need to take into account the statute of limitations. In order not to get confused, it is best to contact a lawyer and get advice. The lawyer will advise what to do, help with the calculation of debt based on the PM, average salary, share of earnings. In addition, the payer may have unofficial income. The lawyer will tell you what to do in such a situation within the framework of the legislation of the Russian Federation.
Viktor Selevanov
Reading time: 2 minutes
The current legislation establishes that the calculation of alimony arrears is carried out by a bailiff and is regulated by the norms of the Family Code of the Russian Federation and the Law "On Enforcement Proceedings".
Cases in which debt settlement is carried out
Grounds for calculating the debt for maintenance obligations:
- By the tribunal's decision;
- at the request of the recipient of payments in the presence of a maintenance agreement.
Calculation of debt on alimony is made from the date of application and for a period not exceeding three calendar years. The exceptions are cases where the defendant evaded payments, despite a notarized agreement on the payment of alimony. Here, the collection is carried out for the entire period of the debt. According to the same principle, a debt is collected from a defendant who evades the execution of a court decision on the payment of funds for the maintenance of children. Only in this case, a penalty in the amount equal to 0.5% of the obligations imposed on the defendant for each day of delay is also subject to payment.
Reasons for indebtedness:
- deliberate evasion of payment of funds;
- intermediary error (employer accounting, banking institution through which payments are made, etc.);
- refusal of the recipient from the transferred money (in fact, alimony is paid, but the addressee refuses to receive it);
- inability to pay due to serious reasons (illness, lack of work, difficult financial condition).
The calculation of debts for alimony is carried out by an authorized bailiff. Previously, he studies the reasons that led to the debt in order to determine the period for which the calculation will be performed.
Calculation of debt based on the living wage
This method of calculation is practiced in cases where an agreement was concluded between the parties on a fixed amount of payments or the amount of deductions was ordered by the court. In each of these cases, the final value is set as a multiple of the subsistence minimum.
The calculation of alimony debt is made quarterly based on changes in the subsistence minimum (up or down). If no deductions were made, the amount of debt is calculated based on the last value of the indicator.
Calculation of debt on alimony from the income of the alimony payer
This method is used when the defendant has official sources of income from which personal income tax is paid. The average income for the entire period of delay is taken into account. The bailiff can obtain the necessary information in two ways: directly from the defendant's employer or upon request to the tax office.
The alimony payer did not make alimony payments within 8 months preceding the day of filing the application. The bailiff found that his average income for the past period amounted to 53,000.00 rubles. net of taxes. The alimony rate is 0.25 of income.
Alimony debt will be calculated as follows:
53,000.00 x 0.25 x 8 months = 106,000.00 rubles
If the alimony payer receives equal amounts of salary every month, there is no need to calculate the average income.
Recipient's procedure
If the alimony payer fully or partially waives his obligations to support the child by concealing income or outright evasion from paying proper alimony, certain methods of punishment may be applied to him:
- criminal liability, up to imprisonment;
- possible deprivation of parental rights;
- calculation and payment of a penalty on a debt.
Before calculating the alimony arrears, the recipient should apply to the bailiff conducting this proceedings with a statement of claim to determine the amount of the debt. Having received the claim, the bailiff carries out the necessary calculation and issues a resolution on the calculation of alimony arrears, with which the plaintiff must apply to the Magistrate's Court demanding that the alimony debt be collected from the debtor for the entire period of non-payment.
After reviewing the materials of the case, the court has the right to make a decision on the full recovery of the debt or on changing the amount of payments. The decision of the court is recorded in the writ of execution, which is issued by the court office.
If necessary, the defendant's property is seized and an order is issued to prohibit leaving the country until the debt is cancelled.
If there is no data not only on the income of the debtor, but also on his location, the bailiffs take certain measures to detect it. If this does not bring results, the bailiff sends a search warrant to the Internal Affairs Directorate at the place of his registration.
The current legislation is always on the side of minor children, protecting their rights and interests. It is for this reason that every parent has an obligation to support the child equally. Nevertheless, unfortunately, even a court decision involving the payment of alimony is not a guarantee that the funds for the maintenance of a minor child will be accrued properly.
The reasons may be different, however, over time, debt begins to accumulate. In this article, you will learn in detail how to calculate child support debt.
Causes of debt
Any debt cannot arise from scratch, there are always certain reasons. So, accumulation can occur:
- Due to the fault of the payer.
- Not the fault of the payer.
So, in the first option, the person in debt knows and understands perfectly well that he has an obligation to pay alimony, which must be carried out according to the established rule. However, it deliberately takes actions to evade this duty. For example, a person may hide from the executive bodies and the claimant the real address of his residence, as well as his official place of work.
Naturally, a person in the future will be liable for such behavior in accordance with current legislation. Yes, they can be prosecuted.
As for the reasons belonging to the second group, they are not so common. We are talking about those circumstances that occur through no fault of the person. These may be, for example, mistakes made by an accounting officer. In this case, the entire responsibility will be assigned to the accountant. There are also quite possible options when the person who is entrusted with the obligation to pay child support is seriously ill, and therefore all financial resources are spent on treatment, and not on the maintenance of the child.
Another reason could be the death of the person paying the alimony. However, if there is a payment debt, it must be paid by the heirs of the deceased debtor. This is done only if the relevant court decision is issued in the case.
There is also such an option in which payments arise due to the claimant. This can happen if the recipient of alimony did not timely provide the bailiff to the executor with a document for collection. In any case, no matter what will serve to accumulate the debt on alimony for a minor child, the debtor is in any case obliged to repay it.
How to find out child support debt
You can find out about alimony debt by going to the official website of the Federal Bailiff Service (hereinafter referred to as the FSSP). The necessary information will be contained in the section called "Bank of Enforcement Proceedings".
In what cases is the payment of debt on alimony carried out?
Many citizens are interested in the question of how to calculate the debt for alimony. The calculation of debt for alimony can be calculated according to two rules.
First rule. The calculation is carried out in the presence of a court decision on the collection of payments or agreement of the parties on alimony. In other cases, the debt cannot be calculated. So, for example, if during the period of dissolution of the marriage, the mother of the child did not file a lawsuit for the recovery of alimony, but decided to do so a few years later. In this case, we will not talk about the presence of debt on maintenance payments, but about the collection of payments for the maintenance of the child for the past time.
Second rule. This rule says that the period of alimony arrears is 3 years, that is, you can claim payment only for the last 3 years. The only exception to this rule is when the debtor evades the obligation to pay alimony. In such a case, the debt is paid for the evasion period.
Methods for calculating alimony arrears
Child support payments can be calculated in a number of ways. Everything will depend on what procedure is in place for the collection of payments.
How is child support debt calculated? :
- living wage;
- the debtor's average salary;
- the income of the debtor.
Below we will dwell in detail on how the alimony debt is calculated by bailiffs.
The procedure for calculating the debt for alimony based on the living wage
This method is used when payments are collected in hard cash. At the same time, the amount of a person's income is not taken into account; instead, they are based on the subsistence minimum, which is established by region or country. The amount of payments is assigned depending on the situation and can be, for example, 0.5 or 2 living wages.
By the way, this value is not constant, so the bailiff must calculate the debt in a new way every quarter.
Formula for calculating child support arrears:
Amount of debt = (amount of child support ordered by the court, which corresponds to the living wage * the amount of the living wage) * the period of non-payment of maintenance payments
The procedure and example for calculating alimony arrears based on the average salary
This method is used if:
- The debtor does not have on hand documents that would confirm his income for the period when the debt arose.
- The debtor receives income unofficially.
- The debtor has no income.
As for the procedure for calculating the debt, it is very simple. It is necessary to take the average wage as a basis, calculate from it the share of alimony payments that were established by agreement or court order, and multiply the result by the number of billing months. Thus, it is possible to determine the amount of debt for the entire period when alimony debt arose.
Since the size of the average wage changes from time to time, calculations must be carried out every quarter.
An example of calculating child support debt
On July 1, 2017, a court order ordered maintenance for a minor child in the amount of ¼ of the parent's income. However, the child supporter did not provide data on his income and payments for the maintenance of the child were not received.
The average salary in the country in the first quarter of this year was 73,800 rubles. Taking into account this information, the bailiff calculated the debt for 7 months of non-payment of funds as follows:
Amount of debt \u003d Amount of deductions (average salary * share of earnings) * number of months
Debt is calculated as follows:
(73,800 * 0.25) * 7 \u003d 129,150 rubles.
The procedure for calculating the debt for alimony based on the income of the debtor
This method of calculating debt takes place if the debtor has official income, but for a certain period of time there was no deduction from it on account of alimony payments.
In such a case, the calculation of the debt will be carried out as follows. First, the bailiff must determine the income of the person from which the payments are withheld. From the amount received, it is necessary to deduct deductions that are mandatory established by the current legislation (in particular, we are talking about personal income tax).
Then, from the amount, it is necessary to calculate the share of alimony payments, which is established by agreement or court. The amount received is multiplied by the number of months when alimony payments were not made.
Application for the calculation of arrears of alimony (sample)
If child support payments have not been paid for a long period, as a result of which a debt has formed, the main issue will be to correctly calculate it.
When the bailiff is not taken to calculate the debt, the recoverer should do this on his own initiative by filing an application. This right is enshrined in Article 50 of the Federal Law "On Enforcement Proceedings". The document is addressed to the bailiff who conducts the case.
There are no special requirements for the application form, it is drawn up in a free form. However, it is still worth relying on the basic rules of office work.
Attention! The application is submitted in two copies.
You can download a sample application for the calculation of debt
Calculation of debt by a bailiff. Decision on the calculation of arrears of alimony
The bailiff cannot refuse a request to provide information about the amount of the debt at the request of the recoverer. So, having received a corresponding application from the exactor, the bailiff is obliged to consider it within 10 days.
As soon as a decision is made on the calculation of alimony arrears, the bailiff sends the appropriate papers to the recoverer and debtor. The decision to calculate the debt, like other decisions, is drawn up in the form of a resolution.
However, the calculation itself can go on a separate paper, which will be in the form of an addendum to the resolution.
The resolution must contain the following information:
- The basis on which the calculation was made.
- Information about the debtor and the creditor.
- The period for which the debt has accumulated.
- The method by which the debt was calculated.
- The amount of total debt for the entire period.
Such a decision is necessary for the claimant of alimony payments to apply to the court with a claim for payment of the debt. This paper cannot be called mandatory, however, it can play the role of a weighty argument.
Exemption from alimony arrears
At the legislative level, there is a rule that allows the debtor to go to court with the aim of partial or complete exemption from alimony debt. However, there must be certain grounds for this, in particular:
Existence of a valid reason why the debtor has not fulfilled its financial obligations. These include illness, difficult financial condition, changes in personal life.
In the event that the court takes into account such grounds, considering them valid, it may decide in favor of the debtor, reducing or writing off the debt. However, do not forget that the person will need to collect evidence that would confirm his words.
Important! After the court makes a decision in favor of the debtor, the enforcement service may begin to review the amount of debt.
Appeal against the decision on the calculation of debt on alimony
All illegal actions on the part of the bailiff can be appealed, for which the interested person is given 10 days. The countdown of the specified period begins from the moment it became known that the bailiff committed illegal actions.
The interested person has the right to file a complaint addressed to a higher official.
In addition, it is also possible to file an appeal against the decision on the amount and calculation of debt payments, if the person concerned has doubts about the correctness of the calculations made.
Conclusion
If, for objective reasons, it is not possible to pay off debts for alimony payments, this may be a good reason for the amount of debt to be reduced or completely eliminated. As a rule, the amount of alimony can be reduced when the requirement for payments indicated in the statement of claim is higher than the real earnings of the alimony. Therefore, a person may well file a lawsuit in court to challenge the established amount of payments if the current financial costs of alimony significantly affect his financial situation.
In order to cancel or reduce the amount of recovery, it is necessary to collect and submit to the court relevant evidence that the person is unable to pay the debt. These can be various kinds of documents, for example, a paper from a medical institution about long-term treatment of a serious illness. The magistrate makes the final decision in the case.
After the relevant decision is issued, it must be written to the bailiff involved in this case. The resolution serves as the basis for reducing or canceling the debt. In addition to written evidence, witness statements may also be considered. The law obliges parents to pay maintenance for the maintenance of their minor children. Failure to comply may result in forcible debt collection.
For example, income, bank assets and even the property of a person who evades alimony obligations can be seized, and imprisonment can also threaten persistent violators.
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The appointment of alimony does not guarantee their regular receipt. The conditions for the payment of alimony are often violated, there is a possibility of termination of deductions, so you cannot be sure that your child will be provided with a certain amount of money every month until the age of majority. Problems arise because of temporary financial difficulties or unwillingness to make payments in the prescribed amounts and in accordance with the schedule. Failure to comply with the terms of the agreement leads to the formation of alimony arrears.
How to find out child support debt
In order to find out if there is any debt for alimony, you can use the Internet or contact the bailiff department.
On the Internet, alimony arrears can be found on the FSSP websites and on the Unified Portal of Public Services. Another way, namely, contacting the bailiffs, implies a direct appeal, a written appeal, or a phone call.
The legislation provides for the procedure for calculating and collecting funds for the maintenance of minors. In addition, the legislator ensured the protection of recipients of payments from possible risks.
The actions of the parties to legal relations are governed by the Law of the Russian Federation "On Enforcement Proceedings" and the provisions of the Family Code of the Russian Federation. In case of evasion from payment of alimony, the payer bears criminal responsibility in accordance with the Criminal Code of the Russian Federation. Severe punishment is provided for violation of the current legislation.
When a debt for alimony appears, an analysis is carried out aimed at finding out the reasons for its formation. Based on the results obtained, a decision is made.
The most common reasons for child support arrears include:
- deliberate evasion of payments;
- the inability to make deductions for family reasons, as well as in connection with health problems or the lack of a steady income;
- an error made in the accounting department of the enterprise when accruing deductions;
- refusal of the recipient from transfers or concealment by him of information about his location.
Timing
There is a special procedure that determines the validity of the statute of limitations. It is displayed in the articles of the Family Code of the Russian Federation - Art. 107, art. 113. In accordance with the established rules, if alimony arrears arise due to violations committed by the payer, the application of the limitation period is impossible. In this case, you can demand payment of the debt not only until the child reaches the age of majority, but also after. As a result of applying to the court, it is possible to receive the total amount of maintenance payments that should have been made over the past three years.
The duration of the limitation period depends on many factors and is calculated separately for each case.
Amount of child support owed
Child support payments can be calculated in several ways. The calculation is made by the bailiff service. The choice of a specific method is carried out depending on the form of payments. The willingness of the debtor to cooperate with the contractor is also taken into account.
When the payment of alimony is assigned by deducting a certain part of the income, the calculation of the amount of debt is made on the basis of information provided to the executors service (based on data on the sources from which the payer receives income and data on the amount of wages). If the necessary information is not provided, the bailiffs calculate the amount of the debt, taking into account the average salary in Russia.
When a payer is assigned to transfer alimony in solid monetary terms, the amount of debt is determined depending on the size of the subsistence minimum established in the region where the decision on the debt on maintenance payments is made.
Procedure for the recipient
The order of actions that must be taken in order to receive unpaid alimony depends to a large extent on how the debt was formed.
The receipt by the bailiff service of a court decision on the appointment of payments is the reason for opening enforcement proceedings. A document allowing such activities to be carried out -.
As part of the enforcement proceedings, it turns out what sources of income the payer has. Deductions from wages are made on the basis of a writ of execution sent to the main place of work.
If the debt appears in the course of enforcement proceedings and the reason for its formation is the transfer of the required amounts in an incomplete amount or in violation of the established deadlines, it is necessary to contact the one who conducts the enforcement proceedings - the bailiff.
The Law on Enforcement Proceedings gives the executor the right to carry out enforcement by seizing property, the value of which covers the amount of the debt, with its subsequent alienation. In addition, restrictions regarding leaving the country apply. When the executive service fails to achieve a positive result and the amount of debt increases, the recipient has the right to require the contractor to calculate the amount of alimony arrears.
After receiving the decision with the calculation, you need to file a claim with the Magistrate's Court in order to collect the debt. It may also be required to secure the payment of debt. A separate statement of this requirement in the form of a petition is possible. In the course of the trial, not only a decision can be made to recover the unpaid amount from the defendant, but also a decision to change the amount of alimony.
After receiving the court decision, the plaintiff must issue a writ of execution, which will allow foreclosure on the defendant's income and property belonging to him (movable and immovable).
Procedure for the payer
In accordance with the Family Code of the Russian Federation, alimony is a mandatory payment. If the court has decided to pay them or the parties have entered into an agreement, the payer is obliged to comply with all conditions. Evasion of the payment of alimony without good reason is unacceptable. Violations can lead to many negative consequences.
In relation to the debtor, compulsory collection may be applied. It is not only his monetary assets and income that are subject to seizure. Revealed property, both movable and immovable, may be subject to seizure or appraisal with subsequent sale. The proceeds are used to pay off debts on alimony. A penalty for delay in obligations may be added to the amount of the debt.
In case of malicious evasion from the payment of alimony, the inquiry department of the executive service initiates a criminal case against the debtor, guided by the Criminal Code of the Russian Federation (Article 157).
If the payer has objective reasons for terminating payments, or if there is a discrepancy between the calculated amount of debt and the level of his income, the debt can be written off (partially or completely) on the basis of Art. 114 of the Family Code of the Russian Federation.
If the amount of deductions that violates the rights of a citizen is determined, the payer has the right to challenge this decision in court. To accomplish this task, it is necessary to have an evidence base. For example, in the event that non-payment of alimony occurred due to illness or as a result of an injury that prevented work for some time, one must present the conclusion of the doctor who performed the treatment, or the corresponding certificate of MSEC.
When the payer, in addition to the child for whom the alimony is issued, has other children, and low earnings do not allow them to support, it is necessary to provide birth certificates for their children, obtain an extract from the place of residence showing the composition of the family, and a certificate of income, calculate the amount, necessary for their content.
The statement of claim, together with the evidence base, must be submitted to the Magistrate's Court, the decision made by the court - to the bailiff service, which has the case materials. The result of this process will be the receipt of a judicial act, which will allow you to adjust the amount of debt or write it off.
Alimony penalty
A penalty is a tool that motivates a debtor to repay a debt. It is calculated as a result of delay in the payment of alimony. The amount of the penalty is established by the Family Code of the Russian Federation (Article 115). It is 0.5%, accrued by court decision of the amount of debt for each day of delay.
Collection of alimony for the past period
There is a possibility of collecting the debt for the period preceding the consideration of the case in court. The Family Code of the Russian Federation (Article 107) allows such deductions to be made only if the plaintiff has proved that before applying to the court he tried to obtain alimony, and that an agreement on the maintenance of the child was not concluded.
When recovering, a prerequisite is the absence during the disputed period of any payments aimed at providing for the child on the part of the defendant. At the same time, alimony payments are assigned for a period whose duration is not more than three years.