Let's talk about how to restore the writ of execution for alimony. According to the law, this document is initially issued by the court after a decision on alimony has been made and it has entered into force. It is needed to present it to the bailiffs in order to force the collection of payments for the child.
How to make an application
The application is drawn up in any form, but it must include the following information and information:
- Name of the court that issued the original sheet, its address;
- Information about the applicant (full name, address, telephone);
- Information about the parties involved in the process of assigning alimony;
- Case number;
- Document's name;
- Date of application;
In the text of the document, the applicant must state:
- The circumstances of the issuance of the sheet (for what court case, on what date and under what number was the sheet issued; who is the claimant and the debtor, according to this sheet);
- If the sheet was presented to the bailiffs for execution, then information about this should also be included in the text of the document (what date the sheet was handed over, to which branch of the Bailiff Service; whether proceedings were initiated, etc.);
- The circumstances under which the writ of execution was lost, as well as evidence confirming the fact of loss);
- Request to the court to issue a duplicate of the sheet containing its number and date of issue;
- List of attached documents.
The application is drawn up and submitted to the court in writing, on paper. It is signed by the applicant himself or another person by proxy.
Important! If an application to the court is signed and submitted by a representative of the applicant, then he must be given a power of attorney certified by a notary or other person, in accordance with the Code of Civil Procedure of the Russian Federation.
If there was a refusal to collect alimony, is it possible to restore
The recipient of alimony, for example, the mother of a young child, has the right to refuse it. This can be done if an agreement has been concluded between the parties or special proceedings are underway. Refusal of alimony even means cases when the plaintiff holds the writ of execution without handing it over to the bailiffs.
Revocation of the executive document
The claimant of payments for his maintenance or for a child has the right to revoke the writ of execution.
This procedure is carried out by the bailiff service. The procedure is as follows:
- First, you need to visit the bailiff leading the case and clarify the possibility of terminating the proceedings.
- Next, you need to draw up a specific statement on the basis of which this document will be recalled. A sample can be collected on site.
- Get the document.
The withdrawal of the writ of execution only suspends payments, since the obligation to pay alimony remains. And the payer’s debt will only grow.
The claimant has the right to initiate the renewal of payment before the child reaches adulthood, as well as within 3 years after that.
How to reopen a child support case
We can talk about the renewal of alimony in two cases:
- when the claimant personally refused to receive it;
- when the payer fails to fulfill his obligations.
If alimony was ordered by the court, then to resume payments you must contact the bailiff service.
How to reinstate alimony withholding
Withholding of alimony payments is carried out on the basis of an application from the employee or a writ of execution. In both cases, the employer begins to withhold a certain percentage from the employee’s salary. For one child, no more than 25% can be withheld, for two – 33%, and for three or more – 50% (up to 70% is withheld in exceptional cases).
In the case where payment was ordered through the court, and then the claimant withdrew the provided paper, he can resume withholding alimony. To do this, you need to contact the bailiffs and fill out the appropriate application. Then production will be restored, and the payer’s employer will receive the necessary documents to withhold funds.
Is it necessary to go to court?
Revocation of a writ of execution by the recipient or any other method of terminating alimony payments does not mean that the court decision loses force.
Therefore, there is no need to go to court again. The claimant may file a claim only in the following cases:
- Changing the amount of alimony. For example, the plaintiff wants not only to resume payments, but also to receive more due to a change in the payer’s income.
- Collection of alimony is carried out not only in favor of the child, but also in favor of the mother (pregnant, disabled, etc.).
- Change your payment method. The plaintiff can initiate the collection of funds not as a percentage of income, but as a fixed amount.
- Termination of payments. The payer will be officially released from his obligation to pay alimony.
If one of these problems needs to be resolved, the plaintiff should immediately go to court. A new decision will be made, and the new sheet will be immediately transferred to the bailiff service.
Application for resumption of enforcement proceedings on alimony
Enforcement proceedings for the collection of alimony are carried out on the basis of Federal Law No. 229. According to this regulatory act (Article 44), all documents on enforcement proceedings for the collection of alimony payments are stored in the bailiff service.
It is impossible to resume production if it was terminated legally. For example, if the recipient of the money died, reached the age of majority, etc. If the payment was suspended by the recipient, he can resume collecting the funds. To do this, an application is made to the bailiff service.
Sample application for the resumption of enforcement proceedings for alimony.
Application to the Bailiff Service
The resumption of enforcement proceedings is carried out with the help of an application. You can take a sample from the bailiff in charge of this production, or find it on the Internet. There is no standardized document form, so you can draw up an application in free form.
- name of the organization to which it is submitted;
- information about the parties - the collector and the payer;
- description of the circumstances of the case: when the court decision was made to collect alimony, the reasons for the suspension of enforcement proceedings, etc.;
- requirement to resume the procedure for collecting payments;
- details of the bank card or account where the funds should be transferred;
- date and signature.
If the court decision or writ of execution is in the applicant’s hands, it should be attached to the application. After all checks, production will resume, and the money will be transferred to the guardian (parent).
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Submission of writ of execution
According to Art. 21 Federal Law No. 229, these documents have a certain validity period. This total period does not exceed 3 years from the date the court made the relevant decision. But there is an exception regarding writs of execution for the collection of periodic payments.
First of all, these are alimony payments, which are provided by the payer on a monthly basis. In these cases, the paper is valid throughout the entire payment period. That is, until the recipient reaches adulthood. There is also a statute of limitations, which when collecting alimony is three years.
You can provide the document even after the person reaches the age of majority. According to the law, the child himself can do this if he wants to collect a debt from a parent. But if he turns 21, the writ of execution loses its legal force.
What documents need to be attached to the application?
The application must be accompanied by a copy of the applicant’s passport, as well as other documents confirming the information specified in it. Also, evidence confirming the loss or loss of the sheet must be attached to the application.
In 2013, changes were made to the Tax Code of the Russian Federation, according to which applicants are not required to pay a fee when applying to court for a duplicate of a writ of execution. Thus, there is no need to attach a receipt for payment of the state duty to the application.
Application for issuance of a duplicate writ of execution download sample
Results
We will briefly summarize what was said in the article, and also analyze the process of obtaining a duplicate step by step. If you lost the writ of execution, nothing too bad happened. Of course, you will need to spend some time getting a duplicate, but that’s all. And it won’t take that much time, so no statute of limitations on court cases will be violated, only if you have already delayed this too much. The case will be reopened after you receive a new document and the decision will not change.
A duplicate is obtained in the same court where the original was received, and if we are talking about an agreement on the payment of alimony, from the same notary who certified the original, since he does not have the right to issue duplicates certified by other notaries.
Even despite the existence of a unified electronic document database, thanks to which we will very likely arrive at this soon.
This is important to know: Application to bailiffs for familiarization with enforcement proceedings: sample
To obtain a positive decision in court, it will be necessary to prove that the original documents were lost, and this is not the applicant’s fault. Hiring a qualified lawyer can simplify the whole process, but if you have the time and energy, you can do it yourself. Nothing wrong with that!
Procedure and terms for consideration of the case
Within 10 days, the court must consider the case in court. The parties participating in the case are notified by the court of the date and place of its holding. If it is impossible to appear at a court hearing, the persons participating in the case must file a petition to consider the case in their absence.
Any person has the right to attract a representative to participate in the case in his place. The representative must be endowed with a notarized power of attorney. Based on the results of the consideration of the case, the judge makes a decision to issue a new sheet or to refuse to issue it.
What is a duplicate
The writ of execution for alimony is issued in a single copy. The collector himself decides what to do with it - hand it over to the bailiffs or at the defendant’s place of work, or temporarily keep it. This approach guarantees authenticity, but significantly increases the risk of irreparable loss.
If the writ of execution for alimony is lost, the accountant or bailiff has no legal grounds to withhold the money, which violates the interests of the claimant.
Therefore, in case of loss or damage, a new copy of similar content is issued. It has the same power as the original. Unlike a copy, which can be made by any person (certified by a notary if necessary), only the body that issued the original resolution has the right to issue a duplicate.
How to appeal a court ruling refusing to issue a duplicate sheet
If the court makes a negative determination, the interested person has the right to file a private complaint. A private complaint must be submitted in writing. The address part of the document must contain information about the court to which it is being filed, as well as about the applicant - the interested person.
The text of the document must set out the applicant’s arguments expressing his disagreement with the ruling adopted by the court. In support of his arguments, the applicant must cite the provisions of current laws.
A private complaint must contain information about the case number, the date of the decision, the number and date of the writ of execution, as well as the number and date of the determination to refuse to issue a duplicate.
Grounds for suspending IP for alimony
Federal Law No. 229 of 2007 establishes that a court or a bailiff can suspend an individual entrepreneur.
Suspension by the court
- Receiving a claim from the alimony payer to remove the seizure of property, exclusion from the inventory of the recovered property.
- Receipt of requests from an interested party for clarification of a judicial act and (or) an executive document.
- Challenging property valuation.
- Challenging by the alimony payer decisions of the FSSP, judicial acts, writs of execution, actions of the bailiff.
Suspension by a bailiff
- The alimony payer is deprived of legal capacity by a court decision.
- Participation of the payer in combat operations as part of regular security forces of Russia.
- Bankruptcy of the alimony payer.
- The payer's request for a deferment or installment plan.
- The alimony payer or recipient has been put on the wanted list, and the property has been put on the wanted list.
If the circumstances preventing the individual entrepreneur have disappeared, the interested person must apply to resume production.
How to prevent the loss of a writ of execution
Quite often, documents are lost as a result of their postal transfers. In order to avoid this, it is recommended to send legal documents by certified or registered mail, with notification of delivery of the correspondence to the addressee. Notifications contain information about the person who received the letter, as well as his signature. Thus, in case of loss, it will be easier to find the lost document.
But still, if possible, it is better to transfer documents personally or through a representative to the office of the SSP. When transferring a document, you should require the person who received it to make a mark on his copy of the document containing his position, full name, date of receipt and signature.
