Grounds for payment of alimony
The law contains mutual obligations of parents and children to support each other. While children are minors, their financial support is the absolute responsibility of the parents. Upon reaching the age of 18, children are obliged to financially support their parents and take care of them.
In the absence of such material support, the mother and father have the right to demand monthly payments for their maintenance if the following circumstances arise:
- if the mother, father or both parents have lost the ability to work - such grounds are related to the establishment of disability or the achievement of general retirement age;
- if the need for help is confirmed - when one’s own savings or income are not enough to maintain a normal standard of living;
- if the mother and father have not previously shied away from their responsibilities to support the children and have not been deprived of parental rights by a judicial act.
If the above grounds are confirmed, parents receive the legal right to demand monthly payments in their favor. Let us consider how each of these grounds is confirmed.
Nuances of filing a claim and collecting evidence
The preparation of a statement of claim is always associated with the child’s refusal to allocate funds for the maintenance of the parent. Since issues of alimony obligations can always be resolved by the parties independently. It is necessary to prepare a statement of claim for the recovery of alimony for a parent and a package of documents proving the financial situation of both the parent and the child carefully and carefully.
The plaintiff (parent, including the one who adopted the child) must be disabled:
- have a disability or
- reach retirement age.
The plaintiff must need help. Need is established taking into account the property status: the size of the pension, the availability of property, and other income. As well as the amount of expenses to meet needs and basic needs. Not just expenses, but vital ones. Which the state does not provide free of charge (on a preferential basis).
If a pensioner has several apartments that he rents out and receives a decent income, the court will also take this circumstance into account.
The defendant (child, including by adoption) must be 18 years of age and able to work (do not have a disability that prevents work, etc.). The financial situation of the defendant will definitely be taken into account by the judge. As well as whether the plaintiff has other children and their financial capabilities. In this case, the court will involve other children as co-defendants. And he has the right to take them all into account, even if the requirement is imposed on one or more of them. The plaintiff has the right to independently submit a petition to the court to involve co-defendants, before considering the case on the merits.
The cost of the claim is determined from the total of payments for the year. Therefore, in our example: 5000/month for the year amounted to 60,000 rubles.
Disability
A mother or father recognized as incapacitated can apply for alimony payments. These facts must be proven when applying for alimony in the following way:
- alimony for disabled parents can be assigned only upon presentation of a certificate from the MSEC institution - based on the results of a medical examination, one of three groups of disability is assigned on a permanent or temporary basis;
- retirement is also considered as loss of ability to work, this fact is confirmed by a pension certificate or a certificate from the Pension Fund of Russia.
Note! If the mother or father has reached the general retirement age, but has not acquired the right to pension support measures, judicial practice allows them to be recognized as disabled due to old age.
The court will take into account not only the actual age of the plaintiff, but also the real ability to continue working. If parents actively work after reaching old age, their income may be sufficient for a normal life. In such a situation, alimony will be refused, or a minimum payment will be established.
Lawyer's answers to popular questions
Question: I am 76 years old, I need constant treatment, my pension is not enough for what I need. There are two sons: one is 40 years old, has a regular income, the second is 45 years old, he is a disabled person of the second group, and does not work. They don’t want to help voluntarily. Is it possible to force alimony to be collected from them?
Answer: You can file a claim in court, naming both sons as defendants. In this case, the claim should indicate the amount of child support payments for each of the children. As for the son who has a stable income, alimony in a fixed amount will be collected from him. But the second child, who is himself deprived of the ability to work, may be exempt from the obligation to support you.
Question: My mother (she is 57 years old) receives a pension and works; she filed a lawsuit to collect alimony. But I have three dependent minor children, and my husband and I’s monthly income is three times less than hers. She motivates her claims by the need to pay off debts on utility bills. In this case, can the court satisfy the claim and force the mother to pay monthly alimony?
Answer: The main condition for collecting alimony is the presence of disability (the person cannot provide for himself) and need (for example, there is a need for treatment). In your case, the mother is able-bodied (continues to work in retirement). In addition, her monthly income is three times the income of your family. When making a decision, the court will also take into account the fact that you have three minors dependent on you. Therefore, the collection of alimony will most likely be denied.
Neediness
To receive monthly payments from children, proof of need for financial support is required. For this, the following factors are taken into account:
- the amount of earnings, pension or other types of payments;
- the amount of income from outside sources (for example, from renting out real estate);
- the ratio of income and mandatory expenses of parents - such expenses include payment for housing and communal services, food costs, etc.
The amount of payments will be influenced by the financial and marital status of the children, however, even with a minimum level of income for the child, he cannot avoid the assignment of alimony. The court will determine the amount of monthly payments that the child can pay without a significant drop in the standard of living of his family.
To confirm the need for assistance, the following documents are submitted to the court:
- certificate from the employer (disability or retirement age does not deprive the possibility of employment, therefore the court examines the certificate from the employer);
- certificate from the Federal Tax Service on income for the previous year or other reporting period;
- a certificate from the Pension Fund of the Russian Federation about the amount of paid pension, disability benefits, etc.;
- documents on the provision of benefits for travel, utilities, etc.
The nature and size of the current costs necessary for a normal life are also documented - certificates of tariffs for housing and communal services, receipts for the purchase of food, medicine and clothing are submitted to the court.
Consideration of the case
The material is reviewed by a single judge. In such cases, a preliminary hearing is scheduled. During the court hearing, witnesses may be questioned and evidence in the civil case will be examined.
Child support for the maintenance of a parent is established in a fixed amount in monthly payments. Therefore, the plaintiff must justify the approximate amount per month based on his need.
The refusal to satisfy a claim for the recovery of alimony for the maintenance of a parent can be appealed through the appeal procedure.
When will alimony be denied?
It is pointless to apply for the establishment of alimony obligations in the following cases:
- if the parents were officially deprived of parental rights in relation to their child, this fact can only be confirmed by a judicial act;
- if the parents evaded fulfilling their responsibilities, this fact is established by the court when considering a claim for alimony and is associated with evasion of paying child support, refusal to participate in their upbringing, etc.
Note! If the listed circumstances are identified only in relation to one of the parents, the second citizen will be able to legally demand alimony.
Let's consider what options for assigning alimony in favor of parents are fixed in legislative acts.
The procedure for filing a claim for the recovery of alimony for the maintenance of a parent
First, a statement of claim is filed with the court. The settlement of such proceedings falls within the competence of the magistrates' courts. Usually the institution at the place of residence of the defendant is selected, but in some cases it is allowed to submit documents at the place of residence of the plaintiff - for example, if the latter’s age or health condition does not allow him to make long trips to other places to participate in legal proceedings. The presence of a reason will need to be confirmed with official paper (medical certificate, copies of passport pages indicating the date of birth, etc.). It is acceptable to transfer the statement of claim in person from hand to hand or send it by valuable letter with a full list of the attachments.
Next, the trial begins, which consists of 2 main stages - a preliminary court hearing (“conversation”) and the court hearing itself, where evidence is examined, witnesses are questioned, and one’s own positions are defended. Both parties must appear at the hearing on the appointed date, since failure to appear, regarded as contempt of court, will significantly affect the final verdict. In general, the process takes 30 days, after which the judge makes his decision. During this time, various circumstances of the case are considered. The court answers primary questions, such as:
- Does an elderly person have an objective right to receive financial assistance from their child? The court calculates the relationship between a citizen’s income (this could be an old-age or disability pension, social benefits and third-party cash receipts, for example, from renting out real estate, etc.) and his expenses. If it turns out that the supposedly needy person is not really such (that is, he is able to independently satisfy his basic needs using available funds), then alimony is not awarded.
- Did the parent conscientiously fulfill his obligations towards the child until the latter turned 18 years old? It is important here that the disabled citizen does not have arrears of alimony, and is also not in bad standing with the bailiff service and the guardianship and trusteeship authorities.
- Will the withholding of alimony lead to the fact that the defendant will find himself practically without a livelihood? If there are other needy subjects in the care of an able-bodied person, this may lead to the fact that alimony is either not collected at all, or is collected in a much smaller amount than the one indicated by the plaintiff in his petition.
In addition, the court may take into account the child’s personal desire to show care for the parent not in the form of money, but in another format. For example, if the plaintiff requires funds to pay for the services of a nurse, and the defendant is unable to pay him alimony due to sufficient and objective reasons, then the latter may make a request to replace financial support with an obligation to care for an elderly parent. Then the court has the right not to recover a sum of money from the defendant, but to replace it with this form of assistance and support. However, this is only possible if such a proposal suits the plaintiff.
After making a decision, the court will issue an appropriate ruling and also issue the original writ of execution to the plaintiff (if the petition is granted). This document will provide a disabled person with the opportunity to open enforcement proceedings against his adult child - the paper will need to be sent either to the bailiff service or to the accounting department of the company where the alimony payer works. It is known that deductions in the TDS format are subject to indexation (revision upward) in the same way as the cost of living. The recalculation will be carried out by the authorized person to whom the recipient of alimony transfers the conduct of enforcement proceedings and entrusts interaction with the writ of execution.
Methods for establishing alimony
When parents apply for child support payments, there are two options – drawing up an agreement or filing a lawsuit. The best option is to conclude a mutual agreement, which is drawn up according to the following rules:
- the terms of payment are drawn up in the form of a written document, which must be certified by a notary office (without contacting a notary, the agreement is invalid);
- The parties determine by mutual agreement all the conditions of material support - the amount of monthly payments, timing of funds transfer, etc. (the law does not contain minimum and maximum limits on payments);
- Once the agreement has been certified, it cannot be terminated unilaterally.
alimony agreement on payment of alimony to parents
The agreement may provide for a specific period of time during which the children will allocate funds in favor of the parents. For example, such a condition may be the period for which the disability is established.
If parents and children have not reached a general agreement on the payment of alimony, such a demand may be presented to the court.
General requirements for filing a claim
It is very important for parents to submit the document correctly, indicating all the information about themselves and their children, expenses and income, and signing.
Filling out a statement of claim against a disabled parent must meet the standards specified in Art. 131 Code of Civil Procedure of the Russian Federation. Written by hand on a plain piece of paper or on a computer.
The header indicates:
- to whom the application is addressed (magistrate of which precinct at which address);
- information about the plaintiff and defendant - full name, address, date of birth. If desired - telephone, e-mail, contacts of a trusted person;
- the cost of the claim is the amount of required monthly alimony for the year.
The main part outlines:
- grounds for filing a claim: the amount of income of the father and mother, state of health, amount of expenses, what the money is spent on. Everything is strictly to the point, without insults and insults;
- a specific complaint about children (they don’t help financially, they don’t help much);
- a requirement for the defendant, which is expressed in the assignment of a specific monthly amount in favor of the parents. Provide justification: types and amounts of children’s income.
At the end there is a list of attached documents to confirm the stated facts and requirements.
Be sure to put the number and signature of the plaintiff or his attorney everywhere.
REFERENCE! Based on paragraphs. 2 p. 1 art. 336.36 of the Tax Code of the Russian Federation, those applying for alimony are exempt from paying state duty.
When contacting the services of lawyers, the cost of filing a claim can range from 1,500 rubles. up to 10,000 rub. and higher, depending on the qualifications of the specialist.
STATEMENT OF CLAIM
on the collection of alimony for the maintenance of a parent
I am the father (mother) of _________ (full name of the defendant) “___”_________ ____year of birth, living at the address: _________.
I am disabled and need financial assistance, my monthly income consists of a pension in the amount of _______ rubles. per month, I have no other sources of income.
The defendant refuses to voluntarily support me _________ (indicate the reasons for the refusal). The defendant is sufficiently wealthy, has a permanent job and a stable income, and has the opportunity to participate in my maintenance.
Based on the above, guided by Article 87 of the Family Code of the Russian Federation, Articles 131-132 of the Civil Procedure Code of the Russian Federation,
- Collect from _________ (full full name of the defendant) alimony in the amount of _______ rubles. monthly for my maintenance.
To confirm the defendant’s financial situation, I ask you to request information from him about the amount of wages and other income.
List of documents attached to the application (copies according to the number of persons participating in the case):
- Copy of the statement of claim
- Defendant's birth certificate
- Pensioner's ID
- Certificate of pension amount
- A copy of the plaintiff's work record
Date of application “___”_____________ Signature of the plaintiff ______
statements:
We advise you to look at a sample statement of claim to reduce the amount of alimony. where recommendations are given on how to fill out an application and submit it to the court.
A daughter was born in the marriage; on her birth certificate, all three had the surname Ivanov-Ivanova-Ivanova. After the divorce, I took my maiden name Viktorova. Then, through the court, she changed her daughter’s last name to Viktorova. Now the child’s birth certificate says: child - Viktorova, father - Ivanov, mother - Ivanova. Is it possible for me to make a change in the child’s birth certificate by changing the surname of Ivanov’s mother to Viktorova? How to do it?
You need to contact the registry office. Such relations are regulated by the law “On Acts of Civil Status”: when parents change their name, information about the parents in the record of the birth of a child under the age of majority is changed. In the birth certificate of a child who has reached the age of majority, information about his parents is changed at the request of this person in the manner established by this Federal Law for making corrections and changes in civil status records. When both parents change their surname and the father’s first name, the surname and patronymic of a child under the age of fourteen are changed in the record of his birth. If one of the parents changes the surname, the surname of their child under the age of fourteen may be changed by agreement of the parents, and in the absence of agreement, by the direction of the guardianship and trusteeship authority. A change in the surname and patronymic of a child who has reached the age of majority, in connection with a change of surname by his parents and a change of name by his father, is carried out in the manner established by this Federal Law for state registration of a change of name. Based on the changes made to the record of the birth of a child under the age of majority, a new birth certificate is issued.
List of circumstances taken into account by the court
It should be understood that each case regarding alimony requires individual consideration. By studying the circumstances, the court finds out what kind of relationship connected the defendant and the plaintiff. For example, if parents remembered the existence of their beloved child only at the moment when they needed financial support, then this will not play in favor of the plaintiff.
The judge examines in detail the income of all defendants, finds out what assistance they voluntarily provided to the plaintiffs, and also establishes the very fact of communication between the parties.
Amount of alimony payments for a spouse
Collections from a spouse in favor of a wife with a child under 3 years of age are regulated by Art. 91 of the RF IC and are set in a fixed amount. A woman must prepare a calculation to justify the amount required for her maintenance. The court will weigh the presence of all the circumstances, assess the defendant’s solvency and consider the possibility of providing alimony in the desired amount. The amount of penalties is taken as a multiple of the subsistence level in a given region.
Expert opinion
Maria Lokshina
Family law expert since 2010
The plaintiff should know that by law, the spouse is allowed to withhold no more than ½ of the amount that is paid for child support. This is explained by the fact that both father and mother are required to participate equally in providing for the minor.
