Apply for child support retroactively: is it possible?

Home / Alimony / Is it possible to apply for alimony retroactively?

It is not uncommon for divorcing parents to agree to share child support. Having reached an oral agreement, it seems unnecessary for parents to sign written documents or, even more so, to go to the courts and executive services.

However, verbal agreements are not always implemented. In the best case, financial support is still provided, but over time it becomes less and less frequent, in smaller amounts, until it stops completely. In the worst cases, verbal agreements are simply ignored, and monetary assistance cannot be achieved.

In the end, you have to resort to the services of judicial and executive authorities to recover money from the children. The question arises: is it possible to apply for alimony “retroactively” and receive amounts of money for the past?

How to collect alimony “retroactively”?

According to the provisions of the Family Code, you can apply for alimony at any time - not only immediately after a divorce or after some time, but even without reference to marriage or divorce. Both parents are required to support the child, regardless of whether they are married or divorced (Article 80 of the RF IC).

In most cases, the collection of alimony begins from the moment you go to court . Is it possible to claim amounts of money for a previous period when they should have been paid, but were not paid or were not paid in full?

According to Article 107 of the Family Code, amounts of money can indeed be claimed for the past - for three years . However, there must be a good reason for this. It is as follows: before going to court, the necessary measures were taken to obtain sums of money, but were not received due to the obligor’s evasion of payment .

Of course, it is not enough to simply state unfoundedly at a court hearing that attempts were made to obtain payment of money, but were not crowned with success. It will be necessary to present to the court convincing evidence of the payer’s evasion from fulfilling alimony obligations. Suitable evidence includes witness statements, telephone conversation records, video recordings, personal correspondence (letters, emails, SMS.

Expert opinion

Semyon Frolov

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

From this we can draw the following conclusion: if a parent does not go to court, he should not seek child support payments on his own. And only if the payer categorically refuses to provide any financial support, in court it is possible to obtain funds for the past period (within the last three years).

If the payer helped the family in the slightest degree, he can provide the court with evidence of this - checks and purchase receipts, witness statements, alimony will most likely be assigned from the moment the claim is filed.

What evidence should I present to the court?

It is not difficult to prove the relationship between the defendant and a minor dependent, but how can you prove that no payments were made?

The applicant must understand that the outcome of the case depends on his actions. Particularly scrupulous people always keep various checks, receipts, and bank statements. If such actions have not been taken before, then you should take care of collecting evidence before filing a claim. You can record telephone conversations in which the topics of the alimony provider’s promises to pay off the recipient for the past period will be touched upon. It would be great if in such a conversation specific terms and amounts of debt are announced. Letters, receipts, SMS messages, online correspondence, and video evidence are accepted for consideration. Bank statements may be attached to accounts for which payments were previously made. It is recommended to involve witnesses in this consideration who can confirm this or that information.

It should be understood that evidence is accepted not only from the applicant, but also from the defendant. The alimony holder can prove that he made payments and helped the dependent to the best of his ability. If he can justify his position, then no penalty will be imposed.

How to apply for child support “retroactively”?

To request retroactive child support, a parent must file a lawsuit in court to collect child support. The statement of claim must focus on the fact that recently the parent, despite demands for joint maintenance of the children, has not paid money.

The following documents must be attached to the statement of claim:

• Plaintiff's passport;
• Birth certificates of minor children;
• An extract from the house register - confirmation of the fact that the children live with the plaintiff parent;
• Certificates of income of the plaintiff and defendant;
• Documentary evidence that child support was requested but not paid by the respondent parent (bank statements, witness statements, telephone records, emails or text messages).

Based on the outcome of the consideration of the claim, the court will decide whether alimony will be assigned from the moment the application to the court is made or whether the past period of non-payment will be taken into account (within three years).

What documents should I attach to the claim?

Claims are supported by documents that contain evidence:

1. The existence of a relationship between the parties.
2. Existing family ties between the minor and the defendant.
3. Issued demands for penalties.

These three points imply a serious set of documents. It may include the following components in one set or another:

1. Identification document of the initiator of the review.
2. Acts on the certified fact of marriage in the registry office or divorce there. The absence of a marital relationship does not entail the cancellation of alimony obligations towards minors.
3. Birth certificates of one or more children. These can be either biologically natural children or adopted children by the defendant. It is important that the certificate itself contains a note that the father is the child support provider. If there is no such mark, there must be a certificate that certifies the previously established fact of paternity. If paternity has not been established, then the plaintiff will first need to prove in court that the man is a specific minor.
4. Paper evidence of the absence of financial benefits and that the applicant tried to claim it during the specified period. There can be a huge amount of both paper and witness evidence presented here.

Calculation of alimony for the past period

Alimony can be paid in two forms:

• as a percentage of earnings (one child - 25%, two - 33%, three - 50%);
• in a fixed amount.

If the parent has a regular income, alimony is assigned as a percentage of earnings - the calculation will be based on information about earnings for the last three years , from which the required percentage of alimony will be calculated.

If the parent does not have a regular income, alimony will be assigned in a fixed amount based on the minimum wage, taking into account indexation for the previous period.

Practical advice

So, the law allows for alimony requests “ retrospectively” - for the previous three years. However, this requires strong evidence of persistent non-payment of funds despite legal demands.

Expert opinion

Dmitry Nosikov

Lawyer. Specialization: family and housing law.

What advice can you give to a parent who, after a divorce, “takes his word for it”?

• Put words on paper. It is not necessary to immediately go to court; you can draw up a written agreement, which, when notarized, will be equal to a writ of execution. If in the future there are discrepancies between the parent's promises and actions, a written document can achieve more than persuasion and threats.
• Attempts to obtain alimony from a parent and his refusal to pay must also be recorded in writing, so that documentary evidence can later be presented in court.

For the sake of fairness, something must also be said about the responsible parents, who often find themselves in an unpleasant situation. If over the past time they have provided financial support to the family (they bought clothes and shoes for the children themselves, paid for children’s vacation trips, transferred money directly to the mother), but cannot provide evidence of this - no receipts, no checks or receipts, no testimonies of friends or relatives. You can recommend that they make money transfers to a bank account while keeping the receipt, or hand it over and receive a receipt, and also keep receipts for purchases. Even SMS or emails can also serve as evidence in court if they contain information about providing financial support to the family (see “How to prove that you paid alimony?”)

Mechanism for collecting alimony obligations for previous years

In general, the procedure for judicial withholding of funds consists of six key stages:

1. Preparation of documents indicating the lack of financial support from the father.
2. Filling out a statement of claim and collecting supporting documentation.
3. Appeal to the magistrate or district court.
4. Direct participation in the proceedings, providing additional information to the court.
5. Obtaining a final court decision.
6. Receipt of a writ of execution and its transfer to the bailiff service.

Papers indicating the absence of payments

According to the current legislation of the Russian Federation, in order to collect alimony for previous years, the mother must provide the following evidence:

1. Emails, messages from messengers. The correspondence must necessarily contain information that the mother repeatedly asked the father for financial support, and the man ignored the requests.
2. A written refusal by a former or current spouse to pay alimony obligations.
3. Audio or video materials containing information about the repeated refusal of the alimony obligee to provide payments in favor of the child.
4. A photocopy of the court decision to cancel payments. This document is issued if a woman filed an application to court to recover funds, and the ex-husband challenged the final verdict of the court.

Note! If the alimony agreement is drawn up orally, the parties should be concerned about the preparation of documents confirming the receipt and transfer of financial resources. The absence of such documents may serve as the basis for a judicial claim for alimony.

Filing a claim in court: contents and sample document

An official application to the world or regional authority must be drawn up in accordance with the requirements of Articles 131 and 132 of the Code of Civil Procedure of the Russian Federation. According to these regulatory documents, the claim must indicate:

• name and address of the judicial organization;
• the full name of the magistrate, if the claim is sent to the magistrate;
• Full name, place of residence and telephone number of the plaintiff;
• full name, registration address, place of residence and telephone number of the defendant;
• full title of the official document;
• Full name and place of residence of the child;
• a brief description of the essence of the problem;
• the amount of alimony to be subsequently collected;
• a list of regulations that became the basis for filing a claim;
• list of attached documents;
• the applicant's signature and the date the paper was drawn up.

Important! Immediately before submitting the application to the court office, the plaintiff must pay the state fee. The amount of the fee depends on the need to assess the amount of alimony debt

The minimum contribution amount is 300 rubles.

Rubric “Question/Answer”

I haven’t filed for alimony for 2 years, and now I’ve decided to go to court. Can I demand alimony for the specified period?

Expert opinion

Semyon Frolov

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

No, such a demand cannot be made. The court will require you to provide a document providing the basis for collecting alimony - an agreement with your ex-husband or a court writ of execution. There is no such evidence, which means it will not be possible to collect alimony for the past 2 years . Even to claim alimony for the past period, evidence is needed. Without them, it is impossible to formalize payments “retroactively” (see “From what moment is alimony calculated”).

I am going to file a claim for alimony for the previous three years. A question arose about the state duty. Tell me, do I need to pay for it and what size?

Expert opinion

Dmitry Nosikov

Lawyer. Specialization: family and housing law.

If the plaintiff intends to collect alimony from the defendant, there is no need to pay a state fee. The obligation is assigned to the opposite party - the future alimony payer (Clause 1, Article 103 of the Code of Civil Procedure of the Russian Federation). If you need to collect alimony for one child, the state fee is 150 rubles. If the mother also claims her own support, the amount is already 300 rubles. However, if the court refuses to satisfy the demands for alimony for the mother, the plaintiff will have to pay 150 rubles. The availability of exemption from payment of state duty must be indicated in the text of the statement of claim.

Hello! My son is 16 years old, I help as much as I can, but his mother is afraid that she will file for child support for 16 years. I also have children from another marriage - one-year-old twins. I'm afraid they'll take away my car - in fact, this is my only source of income. What to do?

Expert opinion

Semyon Frolov

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

The fears are in vain. The mother will be able to apply for child support “retroactively” only if there is evidence of non-payment on your part. Apparently, there was targeted assistance, you did not refuse to support your son, you voluntarily and regularly paid for his expenses. Therefore, the mother will need to prove in court that she made attempts to collect alimony from you , but there was none (clause 2 of Article 107 of the RF IC). Most likely she will not have such arguments. It’s good if you still have checks or receipts that confirm real help to your son. They can be used as your defense (in case the case goes to court). Usually this is enough.

Even if the mother files for alimony, they will begin to collect it from the moment the child goes to court - the son is already 16 years old at this time. The maximum that you will be awarded is to pay alimony for the remaining 2 years. Once the child reaches adulthood, child support obligations are removed. The risk of the car being seized is low. Of course, if alimony is paid on time and without arrears. Again, only if the court obliges you to pay them.

Arbitrage practice

Unlike trivial cases of collecting maintenance for a child, the practice of courts in this category of cases is very ambiguous. A huge role is played by the obviousness and proof of the requirements of the parent with whom the child lives. If this evidence is obvious, the courts will not have any problems.

Otherwise, you should expect the claim to be rejected.

Example 1 : The mother of minor Sergei N. filed a lawsuit against his father for the recovery of alimony in the amount of ¼ of all types of earnings for the child. Additionally, the plaintiff demands to collect alimony for the past 2 years retroactively. In support, she writes that she sent letters to the child’s father in which she asked him to help financially at least quarterly. Notices of delivery to her have been retained. The child's father claimed that he transferred small amounts almost every month, but could not provide evidence or account statements.

The court collected alimony for the two years preceding the filing of the claim in court, considering the evidence sufficient to satisfy the claim.

Example 2: Plaintiff Natalia K. filed a claim against her ex-husband, demanding the recovery of alimony in a fixed amount for her son Sergei, and at the same time demanding the recovery of maintenance for the previous period of three years.

In court, the defendant presented a printout of the account, from which regular, almost monthly, payments are visible. Transfers of amounts of 3-5 thousand rubles to Natalia’s account. At the request of the court, the bank provided information about the purpose of payments. They contained entries “For my son”, “For Sergei’s treatment”, “For textbooks” and other information that clearly indicated that the money was being addressed to his son.

The court refused not only to collect alimony for the previous period, but also to collect alimony in general, since for the last year the defendant had not missed payments and voluntarily allocated funds for the child, taking into account his financial situation.

Results

• If the father did not pay child support and the mother did not take any action to obtain funds, she has the right to recover child support payments in court. Accruals will begin from the moment the claim is filed.
• If the mother tried to obtain financial support for the child, but the father did not answer calls and messages, hid, refused to pay money or help in any other way, she can demand child support “retroactively” - for the past three years. To do this, you need to present to the court evidence of the above circumstances.
• Both parents may be advised to retain any evidence of payment or non-payment of monies to present as conclusive evidence in court proceedings.

Alimony legal relations are very confusing. Even if the spouses come to an agreement, disagreements and resentments may arise in the future. Well, if we talk about the collection of alimony “retroactively” - for the last three years, the situation is even more complicated. The mother will have to prove that she sought voluntary payments from her father in every possible way. The father will have to justify the maintenance of the children - in case the mother wants to claim alimony for the past period. It is more difficult for those who have children from a second marriage, who have lost their jobs or live far from their family. All situations require individual analysis. Lawyers on our website are ready to provide initial advice on alimony. If you have any questions, ask them to a lawyer - he will give a clear, relevant and timely comment. You don’t have to get into the jungle of legislation and make mistakes. The lawyer will tell you what to do, what can be done and how high the chances of success are!

Watch the video about when and who can apply for alimony “retroactively”:
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.

That's why FREE expert consultants work for you around the clock!

1. via the form (below), or via online chat
2. Call the hotline:
   Moscow and the Region
3. St. Petersburg and region

- FREE for a lawyer!

By submitting data you agree to the Consent to PD Processing, PD Processing Policy and User Agreement.

Anonymously

Information about you will not be disclosed

Fast

Fill out the form and a lawyer will contact you within 5 minutes

Tell your friends

Rate ( 1 ratings, average: 5.00 out of 5)

Author of the article

Irina Garmash

Family law consultant.

Author's rating

Articles written

612