Calculation and payment of alimony from compensation in 2020

In crisis situations, companies come to the conclusion to reduce personnel. Then the dismissed employees are paid severance pay.

In addition, this payment can be made upon termination of the contract during liquidation, by agreement of the parties, or in other situations based on the order of the manager.

In this article, we will figure out whether severance payments are subject to alimony obligations, and in what order this happens.

Law on dismissal of alimony worker

The procedure for the employer's actions in the event of dismissal of the alimony worker is regulated by Art. 111 RF IC and Art. 5 No. 229-FZ. According to this article, a company that withholds alimony on the basis of a court decision or a certificate certified by a notary is obliged to report the dismissal of an employee to the executive authorities. The deadline for this is three working days. Also, the person receiving alimony - the second parent - is notified of the dismissal of the alimony provider. If the employer has information about the subsequent place of work of the alimony payer, he must provide this information too.

When moving from one place of work to another, the parent involved in paying child support does not have the right to hide the new place of employment. He must inform the bailiff and the person receiving alimony about the change of employer. Notification of additional earnings, if any, is also required. Failure to comply with these requirements may result in the responsible persons being subject to administrative liability.

Legal assistance

Tricks for avoiding child support obligations are reaching a new level. Payers try to hide their income, so they often disguise it as other payments. It is quite difficult for alimony recipients to keep track of everything at once. Even if bailiffs get involved in the case, they limit themselves to an oral conversation with the debtor, after which the case continues to lie on the table. The best thing to do is contact a lawyer.

Don't know how to calculate alimony?
Contact our lawyers for a free consultation. Experts will tell you which incomes are sources for alimony and which are not. If you are the payor, you will need help determining severance pay. Lawyers will help determine the exact size and take care of preparing the necessary documents. Attention!

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Author of the article

Irina Garmash

Family law consultant.

Author's rating

Articles written

612

Is alimony withheld upon dismissal?

The collection of child support is carried out on the basis of Resolution No. 841, which establishes the mandatory payment of:

• from severance pay, which is paid to the employee upon dismissal;
• with compensation for unused vacation.

In the case of alimony obligations in relation to adult disabled relatives - wives, parents or adult children - recovery from compensation upon dismissal of the alimony obligee is not made - Art. 101 Federal Law “On Enforcement Proceedings”.

Important! Alimony for vacation compensation is charged only if it is provided in monetary terms. When transferring leave to a new place of work, if the transition is carried out within the company, or when taking leave before dismissal, deductions are not made.

The employer is obliged to fully pay off all parties to the alimony legal relationship and only after that transfer the employee’s personal file to the archive.

Types of income

Often, alimony collectors wonder whether alimony is paid from severance pay, or more precisely, from compensation upon dismissal.

The range of income from which bailiffs can collect alimony for the maintenance of a minor is stipulated in the Decree of the Government of the Russian Federation dated July 18, 1996 No. 841, which determines that the collection of funds from the debtor is made from all types of wages received by the latter, as well as from additional types of remuneration. Such income includes:

• Wages that were accrued according to the established rate or salary in relation to the period worked, including: for work performed, payment for which occurs on a contractual basis;
• received from the interest rate for the quantity of products or services sold, issued in non-monetary equivalent;
• overtime wages for overtime hours.

Find more information about the types of income from which alimony is and is not withheld in this publication.

Employer's actions

If the director of a company does not want to receive a fine or inspection, he must comply with the requirements of the law. It must be remembered that after the dismissal of an employee, you have only three days to notify the bailiffs.

In addition, you will need to give them the writ of execution on which the penalties were made. You can also inform the bailiffs of the employee’s new place of work if you have such information.

Upon dismissal, the employer will have to report in documents that:

• for how long the alimony was collected;
• what amount was collected over the entire period;
• the amount of monthly penalties;
• amount of debt, if any.

By agreement of the parties

When an employment contract is terminated by agreement of the parties, the employee is paid a salary on the last day of payment for the time actually worked, as well as compensation for vacation that was not used during the working period. Additional payments under labor legislation are not provided for on this basis, since the parties voluntarily agreed to terminate the employment relationship.

Consequently, alimony upon dismissal by agreement of the parties is withheld from all of the above payments. Regardless of who and on what basis they were accrued during the work of the alimony worker.

Withholding of funds must be carried out from amounts from which personal income tax has already been calculated, since these payments are not subject to personal income tax benefits.

Example

Initial data:

The employee pays child support for his only child.

Upon dismissal due to a reduction in the number of working citizens, the employee is paid severance pay. Its value is 50,000 rubles.

Calculation:

It is known that one minor child is entitled to 25% of the amount of income assigned for payment.

To calculate the amount of child financial assistance, you must perform the following steps:

50,000 x 0.25 = 12,500 – amount of alimony.

The total amount of severance pay that an employee will receive upon dismissal is 37,500.

What to do with a writ of execution upon dismissal?

With severance pay

Severance pay, according to Article 178 of the Labor Code of the Russian Federation, is compensation payments aimed at providing a citizen with a means of subsistence during the period of employment in a new job, after leaving the previous one as a result of the liquidation of the enterprise or staff reduction.

The withholding of alimony from severance pay is directly related to who is receiving it. In accordance with Article 101 of the Law on Enforcement Proceedings, collection cannot be taken against him if alimony is paid to adult family members.

But with minor children the situation is completely different. The fact is that, in accordance with Article 82 of the Family Code of the Russian Federation, the list of income from which accruals are made in favor of minors must be approved by the government. This list was put into effect by Decree of the Government of the Russian Federation No. 841 of July 18, 1996. And in accordance with it, severance payments are income subject to withholding of alimony.

Therefore, if collection is carried out in favor of a minor child, from severance pay, the funds are withheld in accordance with the general procedure.

Holding order

Child support from severance pay is withheld in the usual manner, but without personal income tax withholding, since such payments are not subject to taxes. The exception is amounts exceeding three times the average earnings.

Holding order:

• Severance pay is awarded.
• The percentage established by the writ of execution or agreement is withheld.
• The dismissed person receives the difference in his hands.
• Severance pay for liquidation and reduction is paid for the second month, 2 months after dismissal. From this amount, the recipient can claim a payment in the same amount, but if by that time the employee is not employed.
• For the third month, severance pay is accrued if the employee is registered with the employment center within two weeks from the date of dismissal, and is paid at the end of the third month in the absence of actual employment. From this amount, alimony is also withheld and transferred to the recipient in the usual manner.

Important! In addition to alimony, the accountant must withhold from the accrued benefit the amount for transferring money to the recipient.

According to Resolution No. 841, alimony is withheld from amounts paid for the period of employment to dismissed employees due to liquidation or reduction.

Therefore, the employer must withhold a percentage of the payment for the second and third months in the absence of a new place of work.

Let's look at a specific example of how retention is carried out.

Example

Initial data:

Let’s say that a person being dismissed is accrued an allowance in the amount of 25 thousand rubles. for the first month of unemployment.

The person also received a salary of 20 thousand rubles. and compensation for unused vacation 7 thousand rubles.

The organization has a writ of execution for the employee to withhold child support at 25%.

The calculation will look like this:

• We calculate the base for retention. To do this, first subtract personal income tax from wages and vacation compensation:

(20000 + 7000) – (20000 + 7000) *13% = 23490.

23490 + 25000 = 48490.

• We subtract the withheld percentage from the total amount:

48490 – 48490 * 25% = 36367, 50.

• You also need to subtract the commission for transferring funds, let’s assume it is equal to thirty rubles:

36367, 50 – 30 = 36337, 50.

It turns out that the accountant will withhold child support from the employee in the amount of 12,122.5 rubles, and the person will receive 36,337.50 rubles.

If after two months the employee does not find a new job and brings the work book to the employer, he must be paid severance pay for the second month.

Alimony must also be withheld from this amount and transferred to the recipient:

25000 – 25000 * 25% – 30 = 18720 – the redundant person will receive it in his hands.

According to Art. 110 of the RF IC, after the employee leaves, the employer is obligated to notify the bailiffs about the dismissal of the alimony provider within three days from the date of payment.

However, he has no obligation to return the writ of execution within the same period. Therefore, it is allowed to send it to the bailiffs after withholding alimony from the last severance pay, together with the attached calculation of the amounts withheld and paid.

The main thing is that the employer must notify the bailiff of the employee’s layoff within the period prescribed by law.

Alimony from vacation compensation upon dismissal

Money for unused vacation can be paid upon dismissal or transfer from the enterprise, or can be used to offset the vacation provided at the new place of work.

They are paid in proportion to the number of vacation days that were not used for all previous working periods.

This payment is not on the list limiting foreclosure, which is contained in the Federal Law regulating enforcement proceedings, and in government list No. 841 it is included among other types of income.

In connection with these circumstances, regardless of who the alimony was withheld from the employee’s salary, the company’s accounting department is obliged to calculate it in the amount of compensation for vacation. But at the same time, do this from the amount remaining after tax deductions.

Rubric “Question/Answer”

Can I avoid child support with severance pay?

Expert opinion

Semyon Frolov

Lawyer. 7 years of experience. Specialization: family, inheritance, housing law.

No, alimony from severance pay is mandatory. Even if you write a statement renouncing the VP, it will not have legal force. The employer is obliged to pay this amount in connection with the liquidation of the enterprise or staff reduction. Accounting is required to withhold alimony from severance pay (net of taxes).

The child's father was laid off at the company. How long should alimony be paid from his severance pay?

Expert opinion

Dmitry Nosikov

Lawyer. Specialization: family and housing law.

The period for transferring alimony is closely related to the date of payment of severance pay. The accounting department sends the transfer no later than 3 days from the moment the money is received in the employee’s account (Article 109 of the RF IC). This may include non-working days or weekends. In this case, payment will be processed the next business day. For example, if the third day falls on Sunday, the next day is Monday. Consider these points when expecting child support. You can also read our article “Term of payment of alimony by the employer“.

The ex-husband quit his job due to the reorganization of the enterprise. I know that he should have been given severance pay. But the child never received alimony from him. What to do in this situation?

Expert opinion

Semyon Frolov

Lawyer. 7 years of experience. Specialization: family, inheritance, housing law.

Find out where the child's father worked and go there to clarify the circumstances. If it is not possible to visit the employer in person, send a letter asking for clarification whether alimony was withheld from severance pay? It is also worth finding out whether the employee was actually laid off. Accounting will provide the necessary information. If the VP was paid, but alimony was not withheld, this is the fault of the company’s accountants . They are obliged not only to transfer the required amount, but also to repay the debt from their own pocket + pay a penalty in the amount of 0.1% for each day of delay (clause 2 of Article 115 of the RF IC). Usually, a few days after the accounting error is discovered, child support is transferred to the mother’s account. Otherwise, you will have to defend your interests in the prosecutor’s office or in court (see “What to do if alimony does not come?”)

How long does it take to pay child support after dismissal?

The table of contents of any writ of execution directly indicates the date by which the due payments must be made. As a rule, this is the beginning/end of the current month, when all formal employees are paid the wages stipulated by the agreement. If withholding is intended, the responsible accountant must calculate the required interest on alimony in advance and transfer these amounts to the direct account of the territorial FSSP within 3 days.

The deadline is usually indicated in the writ of execution itself, which is available to the formal employer. But in practice this period does not exceed approximately 3 days. This rule also applies to deductions upon final dismissal - funds are transferred to a direct account no later than the exact date specified in the existing writ of execution. After the last payment, this sheet must be returned to the territorial FSSP due to the dismissal of the payer.

Payments for which alimony is not charged

Not all types of income fall into the category of other, that is, there are transfers from which the alimony provider is not required to transfer money.

These include:

• payment for “harmfulness” - compensation for employees working in conditions of increased danger;
• payment for property.

The second option involves a situation where an employee receives a new uniform on a regular basis. But if he has kept his uniform well and can wear it for another period, then money is paid instead of things.

Healthy! Not all amounts received by an employee are classified as income. For example, payment for “harmfulness” is not part of the salary, but compensation for unused vacation is.

Notification to bailiffs of dismissal

When dismissing an employee of an enterprise who makes alimony payments, the employer is obliged to notify the bailiff and the recipient of alimony about the termination of the employment relationship with the citizen.
The notice is drawn up taking into account the following rules:

• in the “header” it is indicated in whose name the notification is being drawn up, and only after that does all the basic information about the reason for sending appear;
• the name “Notification” is mandatory, after which no punctuation marks are added;
• after the name, the basis for sending the notice is indicated - dismissal of an employee obligated to pay alimony;
• after the grounds, reasons or decisions are written down, based on the reasons for sending the document - termination of fulfillment of obligations to withhold alimony payments;
• attachments are drawn up on additional sheets, which must go after the main text of the letter; the main page contains a list of all attachments indicating the pages and number of sheets;
• information is provided about the employee who drew up the notice.

Common mistakes

Error: The employer of the dismissed employee did not conduct alimony calculations and did not transmit calculations and information about withholding payments to the employee and the alimony recipient.

Comment: The employer's responsibilities include calculating alimony from severance pay, indicating all information regarding the withholding of alimony payments, and transmitting information to the dismissed employee, the alimony recipient and the bailiff service.

Error: The accountant withheld alimony from the severance pay, after which he calculated the personal income tax.

Comment: Personal income tax is withheld until alimony is collected from severance pay.

Notice periods

When dismissing an alimony payer, the organization is obliged to notify the bailiffs of the termination of the contract within 3 days after the dismissal. If, without good reason, the employing company fails to send the notice within the prescribed period, it will be held administratively liable.

The employer is also responsible for the safety of documents. Therefore, they should be stored only in specially designated places: internal archives of the enterprise, safes and other methods of storing securities.

Valid reasons for the lack of notification and delivery of a writ of execution are force majeure and force majeure, which include:

• flood;
• earthquake;
• natural fires due to which residents were evacuated, or a fire in the employer’s building;
• participation in an accident of a courier delivering correspondence with notifications and enforcement documents;
• other circumstances with serious consequences.

If force majeure circumstances exist, the company will not be held administratively liable. After all, the management of the organization did everything in its power to provide the papers to the bailiffs.

Collection of alimony after dismissal

Regardless of the availability of work, a citizen is obliged to participate in the material support of his child. If he evades fulfilling his obligations, the recipient has the right to go to court to change the method of collecting alimony. When alimony payments are assigned as a percentage of income, lack of work does not allow alimony to be withheld due to zero earnings.

This situation has several options:

1. Transfer of obligations to a fixed rate.
2. Calculation of alimony as a percentage when receiving unemployment benefits.
3. Calculation of alimony as a percentage, taking into account the average wage established in the territory of the Russian Federation.

The recipient of the funds or the bailiff can initiate a change in the terms of payment of alimony by going to court. If, after changing alimony payments, a citizen refuses to participate in the maintenance of the child, he will be brought to civil, administrative and then criminal liability.

Reasons

If there are signs of a crime under the Criminal Code of the Russian Federation, namely, refusal to pay alimony, systematic non-payment, concealment of one’s actual earnings, failure to report a place of work, its change or change of residence with evasion of deductions under a writ of execution, the state executor draws up an act of violation.
A resolution to bring the citizen to justice is sent to the relevant law enforcement agencies. Based on the results of consideration of the submissions of state executors, one of the following decisions is made in accordance with the Code of Criminal Procedure no later than three days:

• to initiate a criminal case;
• regarding refusal to initiate criminal proceedings;
• about the direction of representation according to affiliation.

If it is necessary to conduct an inspection at the request of a state executor, it is carried out by a law enforcement agency within a period of no more than 10 days. In the event of a groundless refusal to initiate a criminal case against a debtor who evades payment of alimony, the state executor is obliged to take all measures to appeal it in the manner prescribed by law.

A fairly common question is from what types of income it is necessary to withhold alimony: is it possible to withhold alimony from sick leave, which is financed from the Social Insurance Fund, material assistance, compensation for days of unused vacation and other payments.

The basis for suspension of enforcement proceedings for the collection of alimony is the death of the recipient. In the event of the death of the parent with whom the minor remained, the state executor is obliged to notify the guardianship and trusteeship authority to establish supervision over the child, and apply to the court with a proposal to replace the deceased party with a successor; enforcement proceedings are subject to suspension in accordance with the Law. The court shall consider the submission within ten days, notifying the parties and interested persons.

One of the documents on the basis of which child support is assigned and paid is a certificate from the executive service about the impossibility of collecting alimony due to evasion of payment.

Thus, if the actions (inactions) of the debtor contain signs of evasion from paying alimony, as a result of which it is impossible to implement the decision to collect alimony, the state executor issues the appropriate certificate to the claimant for submission to the labor and social protection body for registration of temporary state assistance to the child. To resolve the issue of providing such certificates in a single form, their form was established by a joint letter from the Ministry of Justice and the Ministry of Labor. Responsibility for the accuracy of the information provided rests with the state executor and the head of the relevant territorial GIS body.