If the wife did not file for alimony, but now demands it for all the years, should the husband pay?

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In Russia, it often happens that one of the parents raises and financially provides for the children on their own, without help from the other parent. If persuasion and entreaties, appeals to conscience and threats do not bring results, you have to go to court and the bailiff service.

In order to protect the right of children to receive financial assistance from their parents, which was not provided in a timely manner and in full, family law allows for the collection of alimony for the past time. But, since there is a high risk of abuse, the law sets limits on the collection of alimony for the past time. This is possible only in court, within a limited time period, subject to strict conditions and providing significant evidence of your innocence.

However, there is a chance to receive alimony not only after going to court, but also in the intervening time! Moreover, those very persuasion and threats were not in vain - they can serve as significant evidence in court.

In this article we will look in detail at how to achieve payment of alimony for the previous three years.

Is it possible to recover alimony for previous years?

At what point does a parent have the obligation to provide financially for a minor child?

If we look for the answer to this question in the broadest, moral sense, then we can say that from the very birth of the child. If parents and children live together as a family, the default is that this duty is satisfied. If the parents divorce and move away, the one with whom the child remains to live has the right to demand monetary payments from the other for the maintenance of the child. Sometimes a requirement for alimony payment is made without a divorce - regardless of whether the parents are married or not, the responsibility to support the children lies with them equally.

If, in a narrow, procedural sense, we look for the answer to the question from what moment a parent is obligated to pay child support, then the answer will be - from the moment the corresponding demands are presented by the second parent. The requirement must be in the form of a document -

a statement of claim filed in court;
a signed and notarized alimony agreement.

As a general rule, the calculation of alimony begins from the moment a claim is filed with a court. Regardless of how long the court process will be (and it can be quite lengthy, for example, if a demand for child support is made simultaneously with a demand for divorce and determination of the children’s place of residence), the calculation of alimony does not begin from the moment the court decision is made, namely from the moment the claim is filed. It is important.

But in this case the question often arises. If the responsibility to support the child always lies with the parent, regardless of registration or divorce, then why can you receive alimony only from the moment the claim is filed? Why can't we get the full amount that hasn't been paid for months or years?

Expert opinion

Semyon Frolov

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

For example, after the divorce, the mother remained to live with two young children. The father moved to another city and did not maintain contact with the family. The mother provided for the children on her own for 7 years, while the father did not even remember about them. When her mother became seriously ill and lost her job, she decided to go to court for child support. In her statement of claim, she filed a demand for the collection of alimony for the previous 7 years, during which she supported the children herself without the help of her father.

It is clear that the absence of legal demands from the mother for 7 years in no way relieved the father of his obligations to his two children. He was obliged to support them regardless of whether the mother sued for child support or not. But can the court now satisfy the demand for the recovery of sums of money that have not been paid for such a long time? No.

So, as a general rule, alimony payments begin to accrue from the moment you go to court. But the law provides, as an exception, for the possibility of collecting alimony for the past time . It is clear that this possibility poses a risk of speculation and abuse on the part of some parents. Therefore, for its implementation, the law establishes strict conditions and limited periods.

Below we will consider both the conditions for receiving alimony for the past and the periods during which it is possible to receive unpaid alimony.

For what period can alimony be collected?

By virtue of paragraph 2 of Article 107 of the Family Code, alimony can only be collected for the past 3 years before the filing of the claim in court.

In this case, the conditions must be met - before going to court, the parent took independent and persistent measures to obtain assistance for the maintenance of the children (which, of course, must be proven in court), but these measures did not bring results - the parent avoided providing financial support.

If a claim has already been filed before, for which there is a court decision on the payment of alimony, the situation is completely different. You can recover the unpaid amount not for three years, but for the entire period - from the moment of the initial application to the court.

Let's remember the example above again. If the mother of two children had applied to the court for alimony immediately after the divorce and received a positive court decision, the situation would have been completely different. No statute of limitations would apply in this case. Failure by the father to pay alimony for 7 years would lead to the accumulation of a debt, which he would be obliged to repay in full, with all penalties and, which is possible, even with administrative or criminal liability measures. But, since the mother did not apply for alimony, at best, she will be able to obtain payments for the previous three years, at worst, she will be content with payments in the future.

Start of alimony obligations and penalties

The classic case is the dissolution of a marriage and the simultaneous resolution of a dispute about the place of residence of the children (with one of the parents, usually the mother) and the payment of child support (by the other parent, usually the father).

But this doesn't always happen. Sometimes it is necessary to collect monetary payments from the father long before the divorce. Sometimes it’s the other way around: after a divorce, a lot of time passes before the mother decides to collect payments for the children.

A natural question arises: for how long (how many months or years) is alimony collection allowed?

From a legal point of view, a parent is obligated to pay child support from the moment...

filing a statement of claim in court for the collection of alimony (in accordance with clause 1 of Article 107 of the RF IC);

It does not matter how long ago the divorce between the parents occurred, how long the children were left without financial support, or how long the trial lasted. The moment the mother files a claim is the moment from which the forced collection of payments begins.

signing by parents (in the presence of a notary) of an agreement on voluntary payment of alimony.

As a general rule, alimony obligations arise from the moment the agreement is concluded. But at the same time, parents can independently determine the beginning of voluntary payment of alimony (as well as other conditions - amount, procedure, methods, responsibility for violations). This is the main advantage of an alimony agreement.

For example, parents have the right to stipulate that the father must pay a one-time large amount for the previous time (if alimony was not paid before), and in the future - pay monthly. Or parents have the right to delay the start of payments, for example, stipulate that payments will begin a month after signing the agreement or after the father’s employment.

Conditions for collecting alimony for the past period

It is Article 107 of the Family Code that establishes that alimony for the previous three years can be collected only if the recipient took measures to receive alimony, but the payer evaded paying it.

Conditions for collecting alimony for the previous three years:

There was no alimony agreement between the parents;
Child support was not paid voluntarily by the father;
Measures taken by the mother to collect child support remained ineffective;
The mother goes to court with a request to collect alimony for the past time;
Alimony is collected no more than for the last 3 years.

Let's look at the example above. If the mother had not remained silent for 7 years, but had periodically reminded the father of his parental responsibilities and tried to achieve voluntary payment - in the form of telephone calls, letters, conversations in the presence of witnesses asking for help in supporting the children, she would have been able to demand payment of alimony for the previous three years. Of course, not in seven years, but only in three years, which is also quite good.

How to collect alimony for the last three years

If no alimony agreement has been concluded, you can file for alimony in court. Although, as a general rule, alimony is calculated from the date of application to the court, as an exception, you can ask for alimony to be calculated for the three years preceding this day . The law does not provide for the collection of alimony for a longer period.

According to the conditions listed above, it is necessary to provide the court with evidence that over the past three years attempts have been made to obtain alimony, but they did not bring the expected result - it was not possible to achieve alimony payments.

Statement of claim, documents, evidence

The beginning of the process of collecting alimony is a statement of claim, which should contain not only a demand for the collection of alimony for the past 3 years, but also a detailed statement of the circumstances and significant evidence that substantiates this demand.

In addition to the basic information that the statement of claim must contain, the following circumstances should be detailed and evidence provided:

The plaintiff tried to obtain financial assistance. Such evidence may be correspondence (both “paper” and electronic), recordings of conversations, testimony (for example, if a witness was present during a conversation or heard a conversation on the phone with the speakerphone on);
The defendant did not provide financial assistance to the child and evaded fulfilling his parental responsibilities. The following may serve as evidence:

statements of bank accounts of the plaintiff, where there are no receipts of funds from the defendant;
documents confirming the amount of expenses of the plaintiff (receipts for payment for kindergarten services, clubs and sections, receipts for purchases of food, clothing, toys, office supplies);
documents on the defendant’s income;
documents confirming the absence of the defendant at the place of registration;
other documents.

The list of documents that can serve as evidence of the defendant’s evasion of financial assistance depends on the circumstances.

Expert opinion

Dmitry Nosikov

Lawyer. Specialization: family and housing law.

Helpful advice. A high-quality evidence base is the key to a successful outcome of the case. Therefore, the preparation of documents that will serve as significant evidence of the parent’s failure to fulfill his obligations should be taken seriously. There is no need to rush into legal proceedings, because collecting checks and receipts, regularly sending letters and receiving (or not receiving!) responses, video recording meetings or dictating conversations takes time. It is better to spend six months preparing the evidence base and receive alimony for the past three years than to rush to go to court without proper evidence and be content with alimony for the future.

However, you shouldn’t delay going to court too long. After all, the judge will ask the inevitable question - why didn’t the plaintiff apply for judicial protection of the rights of the child earlier?

In addition to the listed evidence, the claim must be accompanied by a standard package of documents, including...

child's birth certificate;
a copy of the plaintiff’s passport, a copy of the defendant’s passport - if available;
marriage certificate or divorce certificate;
certificate of family composition;
certificate from the place of work about the amount of earnings;
other documents.

Judicial review

Having studied the circumstances, listened to the requirements and considered the evidence provided, the court may decide to oblige the payer to pay alimony not only in the future, but also for the past time (no more than for the last three years).

Calculation of debt for the past 3 years

First of all, the court determines the amount of alimony for the future. As you know, they can have the shape...

shares of earnings;
a fixed amount of money.

In addition to the amount and procedure for paying alimony for the future, the court decision contains the duration of the past period for which alimony must be paid (up to 3 years). Based on this data, the amount of debt will be calculated.

If alimony is assigned in shared form, data on the defendant’s place of work and the amount of earnings over the past period will be used to calculate the amount of the debt. If during this period the defendant did not have official earnings (or did not provide certificates about its amount), alimony will be calculated according to the average salary in the Russian Federation.

If alimony is assigned in a fixed amount, the amount of the debt is calculated and indexed based on the cost of living established in the region of residence.

You can learn more about the rules and procedure for calculating alimony arrears in the article “How to calculate alimony arrears.” You can also read the article “How to find out your alimony arrears.”

If the plaintiff or defendant does not agree with the calculation of the amount of alimony debt, he has the right to challenge it in court - by appealing to a higher court.

Collection of alimony

Based on the court decision, a writ of execution will be issued, which will indicate the amount of monthly alimony payments and the amount of debt over the past period.

Arbitrage practice

There is a legal provision for the collection of alimony for the past period. But how alive and effective is it? Judicial practice shows that it is very difficult to realize the right provided by law.

Expert opinion

Semyon Frolov

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

First, it is necessary to provide the court with evidence that the mother made desperate but unsuccessful attempts to get at least some money from the father. You can count on success only in the targeted and advance preparation of the evidence base.

Secondly, it is difficult to collect significant evidence that during this time the father did not pay a penny (usually the father receives at least some kind of financial assistance, which is taken into account by the court).

Thirdly, it is difficult to explain why all this time the mother did not apply for child support to the court.

Fourthly, demanding to collect alimony from the father for the past three years (and this is a considerable amount), mothers find it difficult to explain to the court why they need this money. It is good if there is documentary evidence of significant expenses for the child over the past three years (treatment, rehabilitation, education). If not, it will be difficult to prove the need to collect such large sums of money.

As a result, in most cases the court refuses to collect alimony for the previous period. Cases when it is possible to achieve money over the past three years are extremely rare. As a rule, alimony payments begin to arrive only after going to court.

Alimony debt

Above we considered cases when...

a court decision on the collection of alimony has not previously been made;
no alimony agreement was concluded.

The situation is completely different if a claim has already been filed, and a positive court decision has been made on it, and if a child support agreement has been concluded between the parents.

If the father does not comply with a court decision or alimony agreement, a debt arises that is subject to mandatory and full collection.

How long does it take to collect a debt?

For the entire period, if an executive document (court decision or alimony agreement) was filed to force the collection of payments, but the payment of alimony was not made due to the fault of the payer.
For the 3 years preceding the filing of the writ of execution for collection.

In addition to full collection of the debt, it is also possible to collect a penalty - 0.1% for each day of delay in alimony payments.

For more information about the timing of collection and calculation of alimony debt, see our detailed articles with examples and practical advice from a lawyer, “How to achieve payment of alimony arrears” and “What to do if alimony does not arrive.”

Expert opinion

Semyon Frolov

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

If after reading this article you still have questions or need advice, help in calculating debt, advice on preparing a claim or collecting evidence, write to the chat or call the hotline.
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