Sample application for changing the procedure for collecting alimony

As you know, alimony payments are not only regular, but also long-term. It is logical that during such a relationship, both parties may experience changes both in the financial sphere and in the family. Hence the need arises to review the amount and terms of compensation payments. How to file a claim to change the procedure for collecting alimony

It wouldn’t hurt to find out for everyone who makes payments and receives similar compensation, read this review.

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Methods of paying alimony

As is known, a court decision or order for the payment of funds for child support determines not only the amount, but also the method of monetary payments.

According to the articles and the RF IC, as well as article 104 of the RF IC, alimony can be paid in two main ways:

Sometimes the court prescribes a combined method of paying alimony - the first method may well be supplemented by the second method, for example, if in addition to wages the payer has other, temporary or irregular income. Or if the child needs additional targeted payments in the exact amount, in addition to payments on an ongoing basis, depending on parental income.

What to do when the debtor leaves for permanent residence in other countries

In a number of situations, the debtor has to move to another country. Leaving the territory of Russia leads to a number of difficulties regarding the withholding of alimony.

• The need to contact the authorities of the country into which the debtor entered.
• Mandatory translation of documents received as part of the collection of funds for the maintenance of a minor.
• The complexity of the procedure for recognizing Russian court decisions abroad.
• The language barrier.
• Inability to determine the amount of income a parent receives.
• The high cost of legal services, calling into question the feasibility of collection.

The listed problems significantly violate the interests of the child. To comply with them, in Art. 118 of the RF IC provides for a procedure consisting of several stages.

1. Negotiations on concluding an alimony agreement. It may provide for any method of calculation and payment.
2. Submitting a lawsuit if the debtor refused to formalize the agreement or evaded this proposal. The plaintiff has the right to demand the establishment of a fixed monthly payment, a one-time transfer of the entire amount in advance, or the transfer of the debtor’s property to the minor.
3. Getting a solution. The court will evaluate the arguments set out in the claim and resolve the dispute by satisfying or denying the claims.

Is it possible to change the procedure for collecting alimony?

If the court has appointed a certain amount and procedure for paying alimony, this does not mean that it will remain unchanged forever.

Question

Several years ago, the court decided to pay child support for our minor son. At the time of the decision, the ex-husband was working unofficially and hid the amount of his earnings. Therefore, I asked the court to collect a constant amount of money with regular indexation. At the moment, I have learned that my husband has already gotten a new job for six months and receives a regular salary, a quarter of which is much more than the amount he transfers to me monthly. Can I go to court again with a claim to change the method of paying alimony and ask for the recovery of ¼ of my earnings?

Answer

Expert opinion

Semyon Frolov

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

Oddly enough, such a procedure is not provided for by either the Family Law or the Civil Procedure Law. But the law also does not provide for any restrictions on the right to file a claim in court to change the amount and method of payment of alimony payments.

As judicial practice shows, such claims are considered quite often, therefore, the possibility of making changes to the established procedure for paying alimony cannot be ruled out. When considering a claim to change the amount or procedure for payment of alimony, the court takes into account circumstances such as the financial and marital status of the payer and recipient, as well as other circumstances (birth of children, disability, loss of job, employment or business activity, appearance of other dependents) .

The court considers the circumstances of each party, but when making a decision, it is guided by the interests of the minor child, as well as the provisions of the law - articles and the RF IC.

In what cases is this possible?

The circumstances that force parents to file a lawsuit to change the method of paying child support can be very diverse.

Sometimes the alimony payer, using various tricks and abuses, hides his income in order to pay the lowest possible alimony.

For example , he quits his job, gets a job with a “gray” salary, enters into fictitious transactions, for example, “gifts” an enterprise or valuable income-generating property to relatives, invests dividends in the business in order not to pay alimony from the income received.

Sometimes the alimony payer asks the court to change the payment method in good faith.

For example , he became an individual entrepreneur; previously he paid alimony at an interest rate. And now he considers a fixed amount to be a more reliable method of payment. Or, conversely, he retired or found a permanent job, and now can only afford to pay interest.

And sometimes he really experiences financial difficulties due to illness, loss of work, the appearance of other dependents: newborn children or elderly needy parents (see “Reducing the amount of alimony”).

The recipient of alimony may also be guided by various motives, for example , to take care of the additional needs of the child (for example, treatment or payment for education), to achieve fair payments, if there are grounds to suspect the payer of deception and abuse.

Unauthorized change in the method of payment of alimony is not allowed! If parents have a compelling reason to change the procedure for calculating and paying amounts of money, they must comply with the judicial and executive procedures. Otherwise, arrears may arise or other violation of the alimony payment procedure will result, which will lead to the accrual of penalties or fines.

Accrual procedure

Articles 81, 83 of the Family Code of the Russian Federation establish the possibility of using one of the following methods for collecting alimony for minor children:

1. shared order;
2. fixed order;
3. lump sum payment;
4. offset or transfer of certain material assets towards future alimony.

The shared method of calculation means the deduction of a certain share of the total income of the alimony payer towards alimony. These are the well-known “percentages”, that is, 25% or 1/4 of the income for one child, 33% or 1/3 for two, or 50% or half of the income for three or more children.

A fixed method means a monthly (or other periodicity as agreed by the parties) transfer of a fixed amount for child support.

A one-time payment is understood as a one-time transfer from the alimony payer to the alimony recipient of a large amount covering alimony payments until the child reaches adulthood.

The use of this method is formalized, as a rule, through a settlement agreement, in pursuance of which the parties assess the total amount of child support until his 18th birthday.

At the same time, the alimony payer transfers the agreed amount to the alimony recipient, and under the terms of the settlement agreement, the recipient subsequently waives claims for alimony.

Offset is understood as a situation in which the alimony payer transfers to the alimony recipient certain property, the value of which covers the cost of maintaining the child until he comes of age. As a rule, this property becomes a residential property or a business that generates income, or shares that generate dividends.

Having reached an agreement on offset, the alimony payer registers the property in the name of the child, and the alimony recipient waives further claims for alimony payments.

The procedure for changing the method of payment of alimony

Both parties – the payer or the recipient of payments – can initiate a lawsuit to change the method of payment of alimony. Therefore, the procedure for the parties will be approximately the same.

Procedure

1. Consult with a lawyer about choosing a legal position and strategy, preparing a claim, collecting documents, and legal procedure;
2. Prepare a statement of claim;
3. Prepare attachments to the claim - documents that confirm the plaintiff’s arguments;
4. Notify the defendant that the claim has been filed with the court.
5. File a lawsuit;
6. Receive notification of the date and time of the court hearing (the first court hearing is usually scheduled 30 days after filing the claim);
7. Take part in court hearings: present arguments, submit motions, present additional evidence, file counterclaims, enter into a settlement agreement;
8. Receive a court decision made by the court based on the results of consideration of the claim (the period for consideration of the case is usually 30 days );
9. File a complaint to a higher court if the court decision does not satisfy one of the parties (for this, the parties are also given a 30- day period);
10. Receive a writ of execution issued on the basis of a court decision and submit it....

• to the bailiff service or accounting department
• to the administration of the organization, enterprise, institution where the alimony payer works or receives other permanent income (pension, scholarship, social benefit), and where the new method of calculating and paying alimony will be directly applied.

The official responsible for the execution of the court decision, after receiving the court decision and the writ of execution, issues a resolution or order/instruction , after which he calculates and collects alimony in a new manner (see “Collection of alimony under the writ of execution”).

What to do with the solution

Changing the method of collecting alimony does not mean canceling the previous court decision. This is just making adjustments to the previous decision in terms of the method of execution of the decision.

Therefore, the new decision does not in any way cancel possible debts that were formed under the writ of execution. That is, the obligation to pay alimony remains in full.

Therefore, a new writ of execution will not be required. It will be enough to take to the bailiff a copy of the court decision that has entered into legal force. The decision will be included in the enforcement proceedings, and the bailiff will continue execution, but in a new way.

How to draw up a statement of claim to change the procedure for collecting alimony?

Since cases in this category are considered exclusively in court (in claim proceedings), it is necessary to prepare and submit a statement of claim to the court.

Expert opinion

Semyon Frolov

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

The statement of claim must be drawn up strictly in accordance with the norms of civil procedure legislation. Legally unskilled citizens often make mistakes, violations of the form or content of the claim, and for this reason the consideration of the case is delayed - the court has the right to leave the claim without progress until the plaintiff corrects the shortcomings. To avoid this, follow the recommendations below and use a ready-made claim template developed by our lawyer, and if you have any questions during the process of drawing up a claim, write to the chat or call the hotline - our lawyers will advise you for free.

So, according to Art. 131 of the Code of Civil Procedure, the statement of claim must contain the following information:

• The name of the judicial authority to which the claim is filed;
• Information about the parties (full name, address, telephone);
• Information about the original court order or decision (court, date of adoption, number), about the amount and procedure for paying alimony in accordance with the decision or order of the court;
• Information about the circumstances in connection with which a change in the procedure for paying alimony is required;
• Evidence that confirms the circumstances;
• Links to legal norms;
• Claims – to change the order of payment of alimony;
• List of applications;
• Date of;
• Signature.

Documentation

According to Art. 132 of the Code of Civil Procedure of the Russian Federation, each circumstance that the plaintiff indicates in the claim, which he relies on as an argument or cites as evidence, must be documented.

This means that going to court must be truly justified - the court will not consider claims filed for insignificant or unreliable reasons.

The statement of claim must be accompanied by documents that confirm all the circumstances listed in the claim and allow you to justify the request to change the method of paying alimony.

It can be:

• work books,
• income certificates,
• tax returns (3-NDFL),
• health certificates,
• MSEC conclusions on disability,
• documents confirming expenses for the child (checks, receipts, prescriptions, bills),
• other documents.

In addition, the original judgment or order for monetary support is attached to the claim.

All documents are submitted to the court in the same quantity as the number of persons who will take part in the trial (usually three - for the court, the plaintiff and the defendant). However, as of October 1, 2020, plaintiffs are required to notify defendants themselves of the transfer of the case to court. At the same time, you must send the defendant a copy of the statement of claim. A copy of the second party's notice is attached to the package of documents.

About payment of state duty

The procedure for filing a corresponding claim in court requires the plaintiff to pay a state fee for the work of the justice body. Before submitting the document, you must transfer funds to pay the fee using any convenient method, and then attach a copy or original receipt to the claim. All costs when applying to a judicial authority are borne by the claimant and cannot be subject to compensation, since it is solely his initiative to go to court.

The amount of payment is established by current legislation (Tax Code of the Russian Federation). The amount of payment depends on the proportion of the difference between the funds collected and the amount that will be assigned after the judicial authority makes the appropriate order. The basis is always the payment indicator for the year.

Important! Based on current legislation, the minimum duty is 400 rubles and cannot exceed the maximum value of 60 thousand rubles.

Jurisdiction of a claim to change the method of payment of alimony. Which court should I go to?

Changing the method of payment or amount of child support is the competence of the magistrates' courts.

As a general rule, the plaintiff must apply to the court at the defendant’s place of residence (according to Article 28 of the Code of Civil Procedure of the Russian Federation). But if the plaintiff lives with minor children, or his health condition does not allow him to go to court at the defendant’s place of residence, he can go to court at his own place of residence (according to Article 29 of the Code of Civil Procedure of the Russian Federation).

You do not have to appear in court in person to file a claim. You can send the claim by mail (necessarily with notification) or transfer it through a proxy (having previously issued a power of attorney for the right to represent the interests of the principal in the judiciary).

Alimony in a fixed amount

As a rule, this procedure is established when the alimony payer does not have a permanent income or is unemployed.

Both the payer of alimony and its recipient can demand the establishment of payments in a fixed amount. If alimony was initially assigned as a share of earnings, and after that, the alimony payer lost his permanent job, then he himself can initiate legal proceedings by filing a corresponding claim. The recipient of alimony can also exercise this right.

Arbitrage practice

So, cases of changing the order and method of paying alimony are constantly considered by the courts, despite the fact that the Family Code of the Russian Federation does not provide for such a procedure.

Often, during the consideration of a claim to change the order of payment of alimony, a counterclaim is filed - to increase or decrease the amount of alimony payments . Such claims are considered in one trial.

Example No. 1: For several years, the father paid alimony in a fixed amount for the maintenance of his son. The father’s income was unstable, he was employed in seasonal and non-permanent work, and also received payment for renting out a country house and a plot of land.

There were not enough funds to support the child. When the father retired, the mother filed a lawsuit to change the order of payment of alimony - instead of a fixed amount - a percentage rate.

After considering the claim, the court found that the alimony in the form of an interest rate would be lower than the fixed amount that the father had been paying so far. Based on the circumstances of the case, taking into account the increase in the income of the alimony payer, guided by the interests of the child, the court decided to appoint a combined procedure for paying alimony - a quarter of the permanent income (pension) and a fixed amount of unofficial income.

Example No. 2 During the year after the divorce, the father paid alimony for the maintenance of his daughter, assigned as a percentage of his salary.

But the mother knew that, along with holding the position of director, the child’s father is one of the founders of the LLC, and receives additional income, from which he does not pay child support. The mother filed a lawsuit to change the order of payment of alimony: instead of a percentage of wages to a fixed amount.

At the court hearing, it was established that the income in the form of dividends of the founder of the LLC is not constant. The court decided that it was in the interests of the child to maintain the percentage procedure for payment of alimony as the main one, in addition to which to assign alimony payments in a fixed amount from each dividend received. Thus, the court decision determined a new, combined procedure for paying alimony.

The court examines all significant circumstances - the marital status of the parties, the financial situation of the parties, their income and expenses, the availability of property. But the interests and needs of the child are a priority for the court in resolving the parental dispute.

The court's decision to collect alimony must be based on the articles and the RF IC. So, according to paragraph 2 of Art. 83 of the RF IC, when setting the amount of alimony, the court seeks to preserve the child’s previous standard of living and material security.

Let's summarize:

• Changing the procedure for collecting alimony is a change in payments from a share of earnings to a fixed amount (and vice versa).
• The reason is a change in life circumstances. For example, the child suddenly needed treatment, the father got an official job, retired or provides for dependents (as appropriate).
• A statement of claim can be filed by either the recipient or the payer of alimony.
• The consideration is carried out by the magistrates' courts.
• It is impossible to change the collection procedure arbitrarily, without a trial (especially for the payer).
• The plaintiff needs to prepare evidence in favor of changing the order (for example, checks and receipts for expenses, a child’s birth certificate, a certificate of disability).
• The final decision is made by the court.
• Collection under the new procedure occurs after the issuance of a court decision (writ of execution).

Applying to the court to change the procedure for collecting alimony requires certain skills.
Before filing a claim, you need to understand the circumstances. Remember that if they are not respectful and unsubstantiated, the claim will not even be considered. If there are not enough documents, they will leave you without movement. If you violate the rules of jurisdiction, the claim will be returned. And even the slightest inaccuracies in the text of the statement of claim can play a cruel joke on the plaintiff. If you feel that you are unable to draw up a competent claim, it is better to seek advice from lawyers. Describe your case, point out the difficulties, details of the issue - and the lawyer will advise what to do in your situation? Leave requests on the website or call the hotline. We will answer all questions as soon as possible! Attention!

• Due to frequent changes in legislation, information sometimes becomes outdated faster than we can update it on the website.
• All cases are very individual and depend on many factors. Basic information does not guarantee a solution to your specific problems.

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Author of the article

Irina Garmash

Family law consultant.

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Who benefits and when?

When changing the procedure for collecting alimony, each party can benefit, depending on the initial requirements.

If the amount of official income of the alimony payer is minimal, then changing the penalty to a fixed amount is beneficial to the recipient of the payments, but if the salary is high, it is beneficial for the payer.

With a share of a fixed amount

The transfer from a fixed amount of money to a share of income is beneficial for each of the parties under different circumstances.

Example No. 1.

The alimony payer received an income of 93,000 rubles. Child support in the amount of 25% was withheld from income for the maintenance of one child.

Alimony penalties in favor of a minor amount to 23,250 rubles, which significantly exceeds the Russian average for alimony obligations. The child support obligee may apply to the court to change the procedure for withholding payments due to the disproportionate expenses for the child.

The average cost of living for a minor child in Russia is 10,160 rubles, which is significantly less than 23 thousand. If the court satisfies the payer’s demands, then alimony will be reduced by 13,090 rubles.

Example No. 2.

The alimony payer receives a gray salary, the employer pays him a minimum wage of 13,210 rubles. Child support for one child is 25%:

The recipient of alimony can apply to the court to change the amount of alimony to 50-100% of the minimum subsistence level established in the region of residence of the child. If the court satisfies the plaintiff’s demands, the amount of payments will increase from 5,080 to 10,160 rubles per minor dependent.

From a fixed amount as a share of income

Changing the payment of funds for a child from a fixed amount to a percentage of income is most often beneficial to payers when their earnings decrease.

Example No. 3.

The payer of the funds pays alimony in the amount of 6,150 rubles. His income has decreased significantly over the past 6 months, as he has become disabled and is unable to continue working at the same level.

He can file a claim for the recovery of alimony from income, in which the amount of recovery will depend entirely on earnings. If the payer earns 14,500 rubles in the current month, then for one child he will pay:

Significant change in obligations. Moreover, if the income of the alimony obligee goes up, then the amount of alimony will increase significantly.

Example No. 4.

The recipient and the payer of alimony entered into an agreement on the voluntary payment of alimony in a fixed amount - 3,150 rubles. Over time, the payer’s income began to grow seriously, the average salary was 56,000 rubles. The payer refused the offer of a peaceful settlement of the dispute, and the recipient went to court.

If the recipient's requirements are satisfied, the amount of payments per child will be:

The payment amount will increase significantly, the applicant’s child will be better off. All his needs will be met in full, and the recipient will be able to satisfy the child’s additional needs.

Mixed form

A mixed form of alimony collection is the most rare method of payment. Typically, courts use a fractional or fixed amount to assign payments. This form of obligation is applied if it is difficult for the court to determine the amount of income of the alimony obligee.

Example No. 5.

The income of a person liable for alimony always changes, but the constant income is at least 14,000 rubles. The recipient of alimony applied to the court with an application to apply a mixed system of assigning payments, since due to such income of the alimony obligee, one cannot be sure of receiving a certain amount of payments. The child requires constant medical supervision, so alimony is very important for the recipient.

The court accommodated the applicant halfway and awarded alimony in the amount of:

If the alimony payer receives an income of 63,000 rubles, then he is obliged to pay the child: Moreover, if the level of income is reduced to a minimum, then the alimony will be: The plaintiff will be able to provide the child with constant medical care necessary in the presence of illness.