Child support after divorce: voluntary agreement or collection through the court? 

It can happen to everyone in the family that one day the spouses decide to end their relationship. Divorce and alimony, and how child support is paid after a divorce are not simple questions to which everyone wants an answer. Most often, the child in such a situation remains with the mother. Of course, if a father loves his child and is decent, he will provide for him financially without question. However, in life, unfortunately, there are not so many such fathers. Therefore, the mother must defend the interests of their common child through the court until he turns 18 years old.

The relevance of the question of how to apply for alimony after a divorce is obvious, and in this article we will understand all the intricacies of this procedure.

Does a citizen have the right to file a claim to receive alimony from his ex-spouse?

According to the norms of family law, there is a certain circle of persons entitled to receive alimony payments if the spouses are divorced.

It includes:

• persons who have not reached the age of majority and were born (adopted) in marriage;
• persons who have reached the age of majority, however, are recognized as incapacitated due to health conditions or other reasons (disability, full-time study, etc.);
• one of the spouses who is recognized as disabled and therefore unable to provide for himself;
• one of the spouses who is caring for a minor (a child under 3 years old), and therefore cannot provide for himself financially;
• a woman pregnant with a common child.

In the last two cases, the person claiming payments for the child has the right to demand alimony for his own maintenance as well.

Where to apply for alimony after divorce

If you turn to legal practice, you can find several ways to resolve the issue of where to go to apply for alimony after a divorce. Moreover, it makes no difference whether payments are assigned during the marriage or after its dissolution.

You can apply for alimony:

• in a notary’s office - if the child’s parents have come to an agreement regarding payments;
• to a judicial authority - to issue an order;
• to the court to file a claim for alimony.

These methods have their own characteristics, so we will dwell on each of them in detail.

Notary

The execution of a notarial agreement takes place in cases where a husband and wife agree on the financial support of their child. Thus, the spouses independently and mutually agree on the amount of payments, the method of transferring funds, as well as their frequency.

As for the law, if ex-spouses agree, it gives them complete freedom to do so. The only point that must be taken into account is the amount of financial payments, in particular, it should not be lower than the one ordered by the court. Therefore, when concluding such an agreement with a notary, the specialist needs to keep this issue under control.

Judicial authorities

If the ex-husband does not want to resolve the issue voluntarily, the woman has to go to court for help. Thus, the judicial authority can collect alimony in case of divorce for child support:

• through the issuance of an order;
• through a court decision.

To make the order, the child's mother must make a simple statement. This procedure is a simplified version when compared with lawsuit proceedings. However, this option cannot always be resorted to, but only if certain circumstances occur, namely:

• if the stated requirement comes separately, without additional ones;
• when it comes to collecting alimony in percentage form, and not in a fixed amount;
• if the father has no objections.

Magistrate's Court

Issues related to alimony are most often resolved with the involvement of a magistrate. Thus, the Civil Procedure Code provides that a person can apply to the magistrate’s court with a corresponding application. The magistrate decides ordinary situations related to payments for child support, but if the following circumstances occur, a decision is therefore not made:

1. The applicant wishes to recover child support for an adult child.
2. A recovery is required against one of the spouses.
3. The alimony obligee is already paying child support for another child.
4. There are disagreements between the spouses on any issue.

Important! If one of the above problems exists, you must go to the district court for a solution.

Where to resolve the issue

If we systematize everything that was said earlier, the places to resolve the issue of alimony are:

• Magistrates' Court - when the payment of alimony is complicated by the presence of certain circumstances;
• notary – if the spouses have agreed on payments;
• district court - in the presence of circumstances in which a peaceful resolution of the issue is excluded.

The legislative framework

Application deadlines

Many people are interested in the question of when can they apply for alimony after a divorce. As for the terms of application, they directly depend on the person for whom they are collected.

Article 90 of the Family Code of the Russian Federation contains a direct indication of persons who can claim alimony after the dissolution of marriage.

We are talking about the ex-wife:

1. Who is pregnant and the father of the child is her ex-husband.
2. Who is caring for her ex-husband’s baby on maternity leave for up to 3 years.
3. Or ex-husband, forced to care for their common child, who has a disability before he reaches 18 years of age (this rule does not apply to disabled children from childhood).
4. Or a husband who lost his ability to work no later than 1 year after the divorce.
5. Or an ex-husband who received pensioner status no later than 5 years after the divorce.

Taking into account all of the above, the timing of alimony payments will be as follows:

• if alimony is paid for the maintenance of a child - until he reaches the age of majority (18 years);
• in case the payments go to the spouse who takes care of the newborn - until the baby reaches 3 years of age;
• when paying alimony for a spouse of retirement age - no later than 5 years after divorce;
• when alimony is paid for the needs of a person who is looking after a disabled child - until he reaches 18 years of age;
• if alimony goes to the needs of a person who looks after a child who has been disabled since childhood - indefinitely.

Video on the topic

Divorce and filing for alimony are not quick or easy. The complexity of the process depends on the relationship between the spouses.

Divorce is an unpleasant procedure, but often the matter does not end solely with the separation of two adults. The dissolution of a relationship negatively affects not only the psychological state of the former spouses, but also entails certain consequences for the joint children. The most pressing problem that arises after a breakup is financial support.

Children left without the care of one parent have the right to full provision for their needs by both adults. And sometimes the ex-spouse also needs financial support, which, according to the law, must be provided to him by his other half. It’s easy to get confused in all these intricacies. Not everyone understands how to apply for alimony after a divorce. And no one has canceled the right of the ex-spouse to receive alimony for the child and/or for himself, even if the official separation has already occurred.

Before going to court

Before going to court, it is worth finding out in what proceedings payments will be collected. There are two options, namely:

• writ proceedings.
• claim proceedings.

Next, let's look at what the difference between them is.

Order proceedings

As a matter of writ proceedings, a court order is issued. This procedure is considered more simplified. So, for example, the application is considered by the judge alone, there is no need to appear at court hearings, there are no disputes and debates between the parties. Based on the results of consideration of the application, the court issues a court order, which can already be handed over to a bailiff.

Claim proceedings

If it is not possible to collect alimony payments through writ proceedings, you can file a claim.

If we compare writ and lawsuit proceedings, the latter is considered more complicated, since it requires the participation of both parties in the consideration and, as a rule, takes longer in terms of time. However, this proceeding allows us to resolve all the issues that the parties have.

Based on the results of consideration of the claim, a court decision is made to recover payments for child support. Next, a writ of execution is drawn up, with which the plaintiff can independently go to the bailiff.

Enforcement proceedings

Enforcement proceedings can be initiated if:

1. A notarized alimony agreement.
2. Issued court order.
3. Received court order.

Documents can be accepted for execution immediately after they are generated or subsequently if problems arise with payment. Many recipients turn to executors precisely after they have already accumulated a decent amount of debt.

FSSP specialists can influence the debtor using various methods and encourage him to pay his alimony obligations.

What documents are needed to apply for alimony?

Any application must be accompanied by certain documents. Let's consider what package of documents needs to be collected to file a claim for alimony:

1. Copies of all official papers: passports, certificates.

2. 
   Certificate of family composition. The next step is to visit the housing department at your place of residence to obtain a certificate of family composition. If the other party lives at a different address, it is necessary to obtain a similar document at his place of residence. This may require an application addressed to the head of the housing department with a similar request, for which it must be indicated that the document is needed to be presented to the court. When the place of residence of a party is unknown, search measures must be applied, and the court issues a corresponding document.

3. Next, a calculation of the amount of alimony and its justification is drawn up. This requirement is written in the Code of Civil Procedure, so its implementation is mandatory. This may require collecting evidence, for example, checks or receipts that would indicate expenses spent on the maintenance, upbringing or education of the child.
4. If the party submitting the application is aware of both official and unofficial sources of income of the second party, he must certainly indicate this fact in the application. Thanks to this measure, the court will accommodate the issue, which will relate to a certain amount of payments.
5. If the question concerns the collection of alimony for the past period, it would be useful to collect information about the defendant’s property.

How to file a claim for alimony

Nowadays, finding a sample statement of claim for the collection of child support is not a problem. For example, it can be found in the court office or simply downloaded via the Internet. However, many are not confident in their own abilities, so they have to seek qualified help from lawyers. In fact, this is not such a bad option. After all, only a specialist can not only help by correctly drafting the paper, but also give recommendations regarding the legal process. Naturally, you will have to spend money on such services, but in the end it will be worth it.

In the header of the application they write the name of the addressee, information about the parties, and it is also necessary to indicate the price of the claim.

The following must be indicated directly in the text of the application:

1. That the parties were married.
2. The parties have a child(ren).
3. Information about who the child currently lives with.
4. Who is now involved in the upbringing, education, and full financial support of the child.
5. Does the defendant have children who were born in another marriage and, accordingly, does he pay child support?
6. At the end of the claim, it is necessary to indicate in what form and amount alimony payments will be made.
7. At the very end there is a list of documents that will be attached to the claim.
8. Date of.
9. Signature and full name of the plaintiff.

Regarding the amount of alimony, the legislation provides for a certain procedure for paying child support during a divorce:

• Child support for one child is collected every month in the amount of no more than 25% of income received.
• alimony in case of divorce for two children – no more than 33.3%.
• Child support for three children – no more than 50%.

Attention! In order to apply for alimony for child support, it is not at all necessary that the man and woman be officially married. If they are not written down, one of the parties still has the right to alimony. The only point worth considering in such a situation is that in court it will be necessary to prove their cohabitation.

A sample statement of claim for the collection of child support can be downloaded here

After 18 years

According to the law, child support is paid until they reach the age of majority, which is reached on the day they turn 18 years of age. But there are exceptions when funds continue to be withheld.

For example, when studying full-time, the parent is required to pay until the age of 24, since the child is not yet considered able to work.

List of documents:

• statement of claim;
• identification documents of the plaintiff, defendant and child;
• certificate from the educational institution;
• certificates confirming the income of the parties;
• If the child has a disability due to which child support continues to be calculated, all medical certificates must also be submitted.

Consideration of the case in court

No more than 1 month should pass from the filing of the claim to the court until its consideration. If the applicant has complied with all the rules that apply to the form of the document, the judge may accept the claim for proceedings and schedule a court hearing. All parties to the proceedings are required to be notified when and where the proceedings will take place.

If the issue of alimony is considered in a magistrate's court, the judge in this case has the right to consider the application without involving the parties and make an appropriate decision in absentia. Based on the results of consideration of the application by the magistrate, a court order is issued.

When it comes to courts of general jurisdiction, the hearing most often takes place with the participation of the parties to the case. In this case, the judge gets acquainted with all the materials, evidence and ultimately makes a decision on the form of alimony payment, recognizes whether the payment agreement that was concluded between the parties is legal, etc. Based on the results of the trial, a writ of execution is issued.

If we look at the judicial practice of considering cases related to divorce and alimony, almost all of them end positively. This trend is due to the fact that the law always takes the side of minor children. Therefore, if one of the parties with whom the child remains is wondering whether it is necessary to apply for alimony during a divorce, the answer will be positive, since payments for children are a legal obligation.

Receiving a court decision in your hands

If the defendant agrees with the decision made by the court and does not appeal it, the document will enter into legal force after 10 days. A copy of the document is sent to each party for review, and one decision is sent to the bailiff service, which has the direct responsibility for collecting child support payments.

It is best for the person collecting alimony to ensure that the bailiffs receive the paper on time, because this directly depends on how quickly the payments begin to arrive to him. Thus, the law allows individuals to independently send enforcement documents to bailiffs.

By the way, this can be done via the Internet or at the place of work of the person liable for alimony. In any case, such actions will only speed up the process of fulfilling alimony obligations.

Along with this, many are concerned about the question of whether funds will be accrued if the payer does not have a job.

The answer is simple: alimony is paid in any case, and if a person is not employed, he is still obliged to pay money in the amount of the subsistence level for a certain region.

Important! If the alimony payer does not have a job, it is necessary to apply to the court with a request to assign alimony not as a percentage, but in hard cash.

How to submit an application to bailiffs via the Internet

An application for alimony can also be submitted online. So, if a person has a writ of execution, a payment agreement or a court order, he can register on the State website and enter the required information there. If everything is done correctly, after some time the applicant will receive a notification that the process of collecting alimony has begun. Unfortunately, this service may not work in your region.

How is the benefit amount calculated?

The legislation of the Russian Federation provides two ways to calculate the amount of alimony:

1. As a percentage of the defendant’s salary – if the second parent has a regular official income;
2. In a fixed amount - such alimony is assigned in cases where the defendant has unstable earnings, receives wages in foreign currency or not in money (for example, in products), or does not have an official source of income.

Let's look at each of these methods for calculating child benefits in more detail.

If the defendant has official income

According to Article 81 of the Family Code of the Russian Federation, a certain percentage is deducted from the defendant’s salary.

The percentage depends on the number of children the couple has in common:

• If there is one child – 25%;
• Two children – 33%;
• Three or more children – 50% of the salary.

The court may assign a larger amount if circumstances require it (for example, if the child is constantly ill or has a disability).

In hard currency

Hard currency is a specific, unchangeable amount of alimony that must be paid monthly by the defendant. When determining the amount of payments, the judge is guided by the minimum subsistence level of the region of Russia in which the child lives.

As a rule, the amount of the minimum subsistence level is established, but the amount of alimony may be larger in cases where:

• The baby has a disability group (first, second or third);
• The child has chronic diseases.

See what to do if your husband does not give a divorce. About the procedure for approving redevelopment according to a sketch yourself. Find it at the link.

Based on the testimony of the plaintiff, the judge can independently decide on the amount of the monthly benefit, but it must be no less than the subsistence level.

Interaction with the bailiff

It's no secret that FSSP employees are overloaded with work, perhaps for this reason there are those among them who do not do their job conscientiously. Therefore, it is recommended that the claimant first try to establish contact with the bailiff who is handling his case in order to be aware of how the situation is. In addition, close cooperation and assistance from a federal marshal service officer can only speed up the process. So, for example, the applicant can, if possible, inform the bailiff that the debtor has a hidden source of income or has changed, but has not reported, his place of residence.

Responsibility

Many people are interested not only in the question of how child support is paid after a divorce, but also whether there is any liability for unscrupulous payers. So, basically, the father does not have the right to personally refuse payments. Even if he loses his job or another source of income, his alimony obligation is not removed.

It is important to do everything possible to keep control over events in the life of the payer, in particular regarding his income. For example, if the ex-spouse is registered as an individual entrepreneur, the obligation to make payments is not removed from him, however, due to the specific accounting in such cases, it will be necessary to carefully study the issue of finances.

If the debtor violates the procedure for paying child support during a divorce and the funds are not received or a debt has arisen, the legislator allows him to go to court with a request to calculate the penalty.

There are also cases when bailiffs have the right to initiate criminal proceedings against a willful defaulter. Responsibility in this case may even include deprivation of parental rights.

Payment of alimony by agreement

Alimony for the maintenance of a wife or children after a divorce is allowed to be paid voluntarily. Some couples do not resort to paperwork and simply help as needed or regularly themselves, without coercion. But this option, although ideal, is quite rare. Often, only officially accepted obligations contribute to timely and regular payments of alimony during a divorce.

The legislation of the Russian Federation provides for the possibility of paying alimony under a concluded agreement. The agreement allows for alimony to be established for one child or for a former spouse. Calculation of alimony under a concluded agreement can be made simultaneously for several dependents. The amount of alimony maintenance can be any, but in relation to children it cannot be less than the specified legislative norms.