During a divorce, is alimony awarded automatically or do you have to submit an application?

When entering into marriage, a man and a woman agree a priori that they are running a joint household and supporting each other financially. After a divorce, the situation can change dramatically. It would seem that people have become strangers and do not bear any obligations. The law comes to the rescue, namely the Family Code of the Russian Federation, which prescribes the obligation of a man to pay alimony in the event of a divorce to former family members.

During the marriage, a child could be born, or the woman is expecting one. The baby needs daily care and nutrition. It is clear that a pregnant ex-wife or mother of a small child does not have the opportunity to find a job; in this situation, two people already suffer. The woman becomes a hostage to the situation, especially if there are no relatives nearby who can provide support.

Who is entitled to alimony after divorce?

Termination of marital relations (divorce) is formally recognized on the date of official recording of this fact in the registry office.

A simplified divorce procedure (through the registry office) is possible only in the following cases:

• mutual consent of husband and wife;
• absence of children under 18 years of age;
• recognition of one of the parties as missing or dead.

In all other situations, it is possible to demand divorce only in court, which will send the corresponding decision to the registry office.

The transition of spouses to the status of ex does not exempt a man from financial support from family members.

Such support must be provided by law:

• a minor child (without any reservations);
• a woman under a number of conditions;
• a child over 18 years of age in case of his disability or difficult life situation.

We will talk about the nuances of alimony payments in each case separately.

Court hearing and court decision in case of divorce

Meetings are held in the same manner as any other. They are not conducted collegiately, but by a single judge, with the participation of the secretary. The hearing process when filing a divorce through the court consists of the following stages, enshrined in Chapter 15 of the Code of Civil Procedure of the Russian Federation:

1. Checking the appearance of the parties, immediately considering notices of impossibility of appearance, if any.
2. Disclosure of the rights, obligations and status of the parties.
3. Questioning of the plaintiff and defendant - heard in turn with the provision of evidence and original documents.
4. The court's examination of evidence provided by the parties and documented in the case.
5. Debate of the parties is a public discussion, each party expresses its opinion.
6. Removal of the court to make a decision and public announcement.

IMPORTANT
In accordance with Art. 152 of the Code of Civil Procedure of the Russian Federation, a preliminary hearing is held before the main one. As part of it, the stated evidence is assessed, additional circumstances of the divorce are clarified, and the parties are immediately invited to reconcile.

Terms of payments to the ex-spouse

After a divorce, an ex-wife has the right to demand financial assistance in the form of alimony from a man if he has the income necessary for this in the following cases:

• if she is carrying a child, i.e. pregnant;
• within a three-year period from the moment of the birth of a common child in marriage. Here, responsibility for maintenance arises both before the child and before his mother;
• if she is raising and living with her ex-husband’s minor child and is recognized as needing help. Please note that in the first two cases, the state of ability to work and need does not matter at all;
• when a joint child is recognized as a disabled person of group 1, then the mother caring for him has the right to count on alimony from the father for life, again if she is recognized as needy;
• the wife acquired the status of disabled before the marriage or within a period of up to 1 year after its termination.

Many questions arise in practice about the existence of alimony relations between people in a civil marriage. And this question has a right to exist.

Firstly , there is no concept of “family” in the legislation, and the situation of two people living together and running a common household may fall under it. Secondly , such civil relationships can last for decades. However, regarding alimony, the law refers only to an officially registered and dissolved marriage!

Who is considered needy

Unconditional maintenance of the ex-wife occurs only in cases of her pregnancy and caring for a child under 3 years of age. This order has a justification - during such periods a woman does not have the opportunity to earn a living for objective reasons; she is forced to devote all her time to her child.

Other situations, if there is no voluntary consent of the husband, are considered in court, which determines the degree of need for such support.

The law does not prescribe specific amounts of alimony for a spouse (unlike children), nor does it establish a minimum or maximum. Whether the ex-spouse actually needs alimony after a divorce depends only on the opinion of the court.

Factors in a woman’s favor include the inability to get a job, serious illness, and the absence of close relatives.

When going to court, you must prepare a statement of claim in advance, and indicate in it:

• all information about the marriage: when it was concluded and when it was dissolved;
• justification of the degree of material insecurity, evidence of the lack of ability to provide for oneself;
• information about the party supporting the family during the marriage relationship;
• the demands made (the subject of the claim) indicating the specific amount.

The appeal is considered by the magistrate court.

Important ! The collection of alimony by a needy wife for herself and for a child are two unrelated processes. The purpose and size of each of these payments does not in any way affect the resolution of the issue in relation to the other party to the obligation.

One more nuance. Unlike child support, providing for an ex-wife is only possible if the man has sufficient funds. If he is not officially settled, then it will not be possible to receive payments from him, even if he owns real estate and vehicles!

Which court should I apply to?

Not everyone knows which court they need to go to to resolve disputes about alimony obligations during a divorce. Article 23 of the Code of Civil Procedure states that divorce proceedings are considered by justices of the peace. But if there is a conflict regarding the issue of the child’s residence, then a claim must be filed in the district court.

The statement of claim must be filed at the defendant’s place of residence. But if one of the parties, for good reason, cannot personally submit an application at the defendant’s place of residence, then you can apply at the plaintiff’s place of registration. It is also possible to transfer all papers through a proxy.

Cases of termination of alimony payments to a wife

The Family Code speaks about the possibility of a spouse, through the court, to obtain release from paying alimony to his ex-wife or to limit the fulfillment of the obligation. And he gives a closed list of such reasons:

1. Short duration of marriage. The law does not specify what period should be required to consider a relationship short-lived. In each case, the decision is again made by the court. In practice, the fact of being in a marital relationship for less than 5 years is taken into account.
2. Situations in which the spouse became disabled due to her own fault. This may include the use of alcohol, drugs, or the commission of a criminal act. For example, a woman, having abused alcoholic beverages, got frostbite on her legs, which led to their amputation and further disability.
3. “Unworthiness” of the ex-wife’s lifestyle. There is no clear formulation of the concept in the law. Each time the court makes a decision. For example, a mother leads an immoral life, gathers large companies in the house, has neglected housekeeping, etc.

Important ! The payment of alimony is unconditionally terminated if the ex-wife enters into a new legal marriage. Now, according to the law, she is supported by a new husband and support from another man has no compelling reason.

Since we are talking about alimony in relation only to a wife in need after a divorce, a man can apply for the abolition of alimony obligations if he proves that after a period of time the woman has ceased to be financially unprotected. For example, her disability could be removed, or the girl did not officially remarry, but lives with a young man who provides for her fully, etc.

Amount of alimony for ex-spouse

There are two ways to determine the amount of monetary support for an ex-spouse:

1. Mutual agreement between ex-husband and wife.
2. Judicial determination.

A mutual agreement is always preferable, it saves time and allows you to establish an amount of alimony that suits both parties. If an understanding is reached on this issue, then a written agreement must be concluded, which should indicate the scope of content and the timing of its provision (specific dates or periods).

Important! Such an agreement must be certified by a notary. When visiting a lawyer, you must have your passports, marriage and termination certificates, and birth documents of children.

In a situation where a dispute regarding alimony arises, the woman goes to court, where during the hearing the amount of alimony will be determined.

Since there is no fixed amount provided by law, the court will proceed from:

• marital status of ex-husband and wife;
• the man's financial situation;
• other relevant circumstances. For example, the ex-spouse has seriously ill relatives who need help.

Attention ! Maternal maintenance is determined only in a fixed amount. Its size is usually small - from several hundred to several thousand rubles.

How can I obtain a collection document?

There are different ways to get it:

• apply for a court order. The decision will be made without the presence of the parties. Suitable when there is no challenge to paternity or the need to establish it, and the participation of third parties is not required. Liabilities will be established according to the existing standard - a percentage of earnings. The amount of the recovered share depends on the number of children;
• submit a corresponding claim to the court. It is necessary to resort to this method if a requirement is made for a fixed amount of payments, when paternity approval is required, or when third-party participants are required to be involved in the process.

The document must contain the essence of the requirement. At the bottom of the text is a list of attachments - for example, a copy of the child’s birth certificate, a certificate of cohabitation.

Important: you are allowed to submit an application if alimony was not paid by agreement (Article 107 of the Family Code). Otherwise, it is necessary to demand changes to the concluded conditions.

Grounds for child support after divorce

After a divorce, the father becomes obligated to support not only his ex-wife, but, first of all, his children.

The procedure for providing child support depends on the status of the child, and there can be two of them:

1. Underage, i.e. under 18 years of age.
2. A child over this age who is disabled.

Payment of child support after divorce is required by law. The fact of establishing paternity of a specific child is important.

A man is considered a dad in the following cases:

• the child was born in an officially registered marriage;
• paternity is registered in the Civil Registry Office at the request of both parents;
• the man is recognized as the father when the mother files a claim in court.

All three grounds for recognizing paternity are equivalent.

Attention : If a child is adopted by his parents, then by law he enjoys the same rights as his own.

Children under adulthood

The form and scope of a man’s obligations towards a minor child can also be determined by mutual agreement with the mother. We talked above about how to conclude a mutual agreement.

In the case of a child under 18 years of age, such an agreement may stipulate not only the terms and amounts of support, but also other forms of alimony. This could include financial obligations to purchase things for the baby, get him ready for school, or pay mortgage payments.

The father has the right in the agreement to assign part of the movable property to the child, and the mother, in return, refuses monthly allowance.

The subject of the agreement is limited only by the parents' imagination. The frequency of payments is also not regulated - once a month, a year or six months: it all depends on the wishes of the parties.

Unfortunately, it is not always possible to reach agreement on alimony. In such cases, the woman should apply to the magistrate’s court, which will resolve the issue in accordance with Article 81 of the RF IC.

The amount of child support can be determined either as a percentage of wages or as a fixed amount.

If the ex-husband receives a “white” salary

A determination is made on the collection of alimony in proportion to earnings, namely:

• for three or more children - up to 50%;
• for two children - 33.3%
• for one child - up to 25%.

The amount of payments may be reduced in the future by a court decision due to a change in the financial situation of the child’s mother or the payer.

When the payer does not officially work

There are life situations when it is not possible for the court to determine the amount of deduction as a share of the payer’s income. Then the decision is made on payments in a strictly fixed amount.

Let us describe these cases:

1. The father is registered as an individual entrepreneur.
2. A man’s income is not regular and is seasonal.
3. The ex-husband is officially unemployed.
4. The alimony worker receives his earnings in foreign currency or in kind.
5. Payments in percentage violate the rights of one of the parties. These are cases where the father's profits are either too small or too large.

The amount of alimony in a fixed value is calculated as a multiple of the subsistence minimum in the region, and increases according to the indexation of the latter. If the cost of the consumer basket decreases, the amount of alimony is not recalculated downwards.

Typically, the court sets the amount of maintenance at 50% of the subsistence level, suggesting that the other half must be provided by the parent who remains to live with the child.

Nuances

Life situations are full of variety and complexity. This is especially true for the divorce process, which in most cases does not proceed as ideally as required by law. In this regard, we will dwell on the most common situations and tell you the sequence of actions.

Divorce without a spouse.

Possible in the following cases:

1. Open refusal of one of the spouses, failure to appear at the trial.
2. The presence of valid reasons - the person did not appear due to illness, departure to another state.
3. There is no party in court, but instead a representative with a notarized power of attorney participates.

Article 19 of the RF IC states that in the civil registry office, divorce is possible without the presence of one spouse if:

1. The partner was declared incompetent by the court.
2. The second spouse, by court decision, is missing.
3. The husband (or wife) is sentenced to imprisonment for a term of more than 3 years.

It is necessary to confirm these grounds with documents, in most cases this is a court decision or verdict.

For your information

The Civil Procedure Code of the Russian Federation establishes situations when it is possible to hold a court hearing without the participation of one party in absentia. For example, this is possible if a representative participates, or there is a petition from a participant asking for the case to be considered without him. The court hearing can be held in absentia, and a decision is also made based on the results. It can be canceled within 7 days from the date of issuance, then the proceedings will begin again.

Divorce from a foreigner.

It is not fundamentally different from the procedure for divorce from a citizen of the Russian Federation; it is also possible in the registry office or in court. This is confirmed by the provisions of Article 160 of the RF IC. It states that divorce from a foreigner or stateless person is organized in accordance with the legislation of the Russian Federation.

If a citizen living in another state decides to divorce a Russian and there is no reason to go to court, then the divorce is formalized at the consulate or embassy. The dissolution of a union between foreign citizens, which takes place in another state, is recognized as valid in Russia. All other aspects are regulated according to the general rules established by the RF IC.

Divorce from a person sentenced to imprisonment for a term of more than 3 years.

The process of dissolving a union has some peculiarities. If such a decision has been made, then the second spouse must contact the registry office, attaching a court verdict, in which case the issue will be resolved quickly and positively within 30 days. The appearance of the convicted person is not required, but within 3 days he is sent a notice of the place and date of the divorce.

The process of divorce in court is not particularly special. The only thing you need to pay attention to is to issue a power of attorney for a representative who could protect the interests of the spouse sentenced to imprisonment.

Adult children

When a citizen reaches the age of 18, he has full legal capacity and the ability to manage his life, as well as bear responsibilities for his own support. However, there are cases when a person, due to circumstances, cannot support himself.

Alimony obligations after divorce for a child over 18 years of age arise if:

• The person's disability has been confirmed;
• There is a disability that was determined before adulthood (disabled since childhood);
• The child's disability group was established after the age of 18. Basically we are talking about 1 group, i.e. complete loss of ability and opportunity to work.

If there is no goodwill of the man, then such alimony is assigned by the judicial authorities only in a fixed amount; a percentage of wages is not applied.

“We are responsible for those we have tamed” - this phrase from the famous book clearly illustrates the obligations that a spouse has after a divorce. It’s great if you were able to agree on the provision of assistance without turning to third parties. If this does not happen, then the law is on the side of the interests of the mother and child!

Filing a claim: rules for filing and sample application

The statement of claim is drawn up according to the sample. It is recommended to contact a practicing lawyer who will help you complete everything in accordance with legal requirements.

But if you want to write it yourself, you will need to provide the following items:

• name of the judicial authority;
• applicant details;
• information about the child;
• a description of the essence of the claim, which should contain information about the marriage, the date of birth of the child, the reason for the divorce, requirements for the defendant;
• legal basis for the requirements.

You must sign and date it at the end. The application is drawn up in three copies: one for the court office, and the other two remain with the parties.