The legislator largely protects the rights of persons who, for one reason or another, cannot provide for their needs on their own (for reasons beyond their control). Therefore, in practice, there is an actual possibility of collecting alimony not only after the divorce, but also during its duration.
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What is it for?
In some situations, spouses, for certain reasons, do not want to dissolve their legal marriage. At the same time, one of them does not fulfill his obligations regarding the financial support of a common child or a second spouse (if he is disabled). It is for such cases that the possibility of collecting alimony during marriage is provided.
The first thing a potential alimony recipient is recommended to do is try to come to an agreement. The legislator does not prohibit entering into a corresponding agreement in marriage, but if the spouse refused to fulfill his duties voluntarily, then, most likely, he will refuse the agreement.
The only option left is to file an application in court. However, it is difficult to imagine what this will lead to and how it will affect family relationships. After this, the spouse may demand a divorce, but everything depends on the specific individuals and the nature of the relationship between the parties.
The purpose of such a statement is very clear - the collection of alimony payments in the absence of a requirement to terminate the marital relationship.
What is a settlement agreement on the payment of alimony? The answer is presented in the article “How to draw up a settlement agreement on the payment of alimony.” Is it possible to apply for alimony while in a civil marriage? Find out here.
Normative base
Divorce is regulated by several legal acts:
- The main law regulating relations between a man and a woman at the official level is the Family Code of the Russian Federation. It contains the basic concepts of marriage, the rights and responsibilities of spouses, regulates relationships with children, divorce and many other aspects of family life. In Art. 25 indicates the moment of termination of marriage; in addition, the Code deals with both administrative and judicial procedures for divorce.
- In addition, some concepts are separately regulated by articles of the Civil Code of the Russian Federation. Please note that the norms of this Code do not directly relate to divorce; they relate to it only indirectly in certain issues. For example, the Civil Code of the Russian Federation regulates the process of declaring a person incompetent, declaring a spouse dead or missing. Art. 256 of the Civil Code of the Russian Federation regulates the regime of common ownership and use of property of spouses, issues of division.
- The characteristics of the divorce procedure are regulated by Federal Law No. 143-FZ “On Acts of Civil Status”; Chapter IV is devoted to this issue. It specifies the grounds for divorce, the procedure for registering the procedure, and regulates in detail how the civil status record is made, how and what document is issued to the divorced.
- The procedure for dissolving a marriage in court is regulated by the Civil Procedure Code of the Russian Federation, which sets out the basics of judicial proceedings, the rights and obligations of the participants.
Who has the right
The following persons have the right to apply to court for the collection of alimony during marriage:
- Disabled spouse.
- Parent of a minor child.
- Parent of a disabled but adult child.
These persons can file a claim in which the defendant will be their spouse, whose marriage has not been dissolved.
The possibility of collecting alimony from both married parents should not be ruled out.
In this case, the application can be submitted by the guardian appointed for the child or the Guardianship and Trusteeship Authority.
Which authority to contact and what is the deadline?
Collection of alimony is possible either through an agreement certified by a notary, or through the issuance of a judicial act.
Certification of the agreement is possible only by mutual consent of the parties. Most often, the potential recipient will have to go to court with a corresponding application.
An application for spousal support must be submitted to the magistrate’s court at the defendant’s place of residence.
It is permissible to file a claim at the place of residence of the plaintiff. But since the spouses have not divorced, they will most likely live together (however, the law does not oblige them to live at the same address; situations may be different).
If alimony is required to be collected as a share of earnings, then it is necessary to apply to the court for an order. The period for consideration of the order is ten days, after which the debtor under the order must be notified. The court will send him a copy and after receiving it he will have ten days to cancel it.
When collecting alimony in a fixed amount, it is necessary to file a claim. The duration of the proceedings will be one month from the date of filing, but the court will be able to extend it.
If it is necessary to collect alimony for the past time, it is worth remembering the statute of limitations, which does not allow collection for a period exceeding three years.
Are alimony payments collected from pensions? The answer is presented in the article “Is alimony calculated from a pensioner?” Whether alimony is intended to support a wife can be found out here.
The necessary conditions
In order to collect alimony during marriage, certain conditions must be met:
- The marriage between spouses must not be dissolved (although the actual marital relationship may be terminated).
- The spouse does not fulfill his obligations voluntarily (does not take part in family life, refuses to support a minor child, or help him financially and in other ways).
- In fact, family relationships have ceased, despite the fact that they formally continue.
It turns out that the spouse must cease actual participation in the life of the family and not provide financial or other assistance to his wife or their common children.
Payment amount
When assigning alimony payments, the court takes into account the number of children in the family, income level, and health status of the parties.
Alimony is assigned:
- as a percentage of the salary: 25% - for one child, 33% - for 2 children, 50% - for 3 children or more;
- in a fixed amount.
When assigning the amount of payments, the court proceeds from the individual conditions prevailing in the family.
Package of documents
Along with the claim for alimony without divorce, you must submit the following package of documents:
- Identity document. In fact, without this document it will be impossible to get into the courthouse, much less submit an application. This may be a passport or other paper from the list established by law.
- Marriage certificate. This paper is issued by the registry office when registering a marriage. If it was lost, then a duplicate can be obtained there.
- Birth certificate of the child (if there are several children, then for each).
- A document confirming paternity (if this fact was established separately).
- Papers confirming the financial position of the parties (both plaintiff and defendant). This could be certificates of income, availability of property, accounts, documentation from the place of work, and so on.
- Documents that confirm expenses for the child (or the spouse).
- Health certificates (they must be obtained from official medical institutions, otherwise they will not be accepted by the court as evidence).
- Other documents that can prove the applicant’s position.
All documents are provided to the court in the form of copies. But when submitting an order, the originals are attached.
Step-by-step instructions for divorce through court
The process of divorce through the court, as previously noted, is more complex than through the registry office. In order to organize the procedure, you must:
- Write a statement of claim. Download the sample from the link.
- Collect the necessary documents, a list of which you will see above in our article.
- Determine which court you need to go to - previously it was indicated which cases are resolved by the magistrate and which by the district court. Submit your documents.
- After the claim is accepted, a date for the first hearing is set - it should not be earlier than one month after filing the application, this is enshrined in Article 23 of the RF IC. In the event that the time and place are established, a summons notice is sent to the participants.
- Both parties must appear at the first meeting, where questions about the possibility of preserving the family, the reasons for divorce are resolved, and it is established whether there are disagreements regarding children or property.
- If there are no disputes, the desire to divorce is strong and there are no changes, a court decision on divorce is immediately made. If there are disputes, one of the spouses wants to preserve the union, the judge sets a deadline for reconciliation. As a general rule, it is 3 months, after which a meeting is held again and the marriage is dissolved if all issues and contradictions are resolved. This requirement is fixed in Art. 22 IC RF.
- In accordance with Art. 35 Federal Law No. 143, a citizen who has received a court decision must submit it to the registry office to obtain a divorce certificate.
Structure of an application for alimony in marriage
An application for the collection of alimony during marriage must contain the following information:
- The header of the application, which contains information about the court to which it is being filed, the applicant, and the defendant.
- Title of the application.
- The text of the application, which indicates all the events that are relevant to the case (the fact of marriage, the birth of children, the need for financial support from the defendant, the need for such support, the amount of payments and its justification, and so on).
- Links to documentation confirming the applicant’s position.
- Indication of legal acts substantiating the requirement.
- A request to the court to establish alimony in the specified amount.
- List of attached documents.
- Date and signature.
Invalidation of divorce and restoration of marriage
If you want to invalidate the divorce for personal reasons, for example, you changed your mind and want to restore your family, then the easiest way would be to register the marriage again. This is not prohibited by law; you can re-register relationships with the same person. If you are driven by other motives, then you need to know the process of invalidating a divorce.
First of all, file an appeal against the decision of the trial court. We are talking about a decree that reflects the requirement to dissolve the marriage. When drawing up an appeal, it is better to use the services of a professional lawyer who has experience in this matter, otherwise the case will be lost.
IMPORTANT
The appeal is considered at a higher authority, that is, if you filed a divorce in the registry office, then you need to submit the document to the magistrate; if the divorce was filed by the magistrate, then the appeal is sent to the district (city) court. When a divorce proceeding takes place in a district court, a complaint must be filed either in a city court or in a regional court.
It is necessary to file an appeal to the court in which the decision was initially made; then, depending on the jurisdiction, the employees will forward the complaint to the necessary authority. The review period is 2 months. Based on the results, a decision is made:
- The complaint remains unsatisfied, therefore, the decision of the court of first instance remains in force and the divorce is valid.
- The original decision is canceled in a certain part, and therefore a new decision is issued.
- The initial decision is canceled completely, a new decision is not made, which means the divorce is declared invalid.
The decision of a higher authority is formalized in the form of an appeal ruling, which comes into force from the moment of its announcement. The process in practice varies in length; on average, an appeal is considered for 5 months.
Restoration of marriage is possible only under the conditions established by Art. 26 IC RF. A marriage can only be restored if:
- The spouse who was previously declared dead is declared.
- A citizen who had previously been declared missing appeared.
- The decision of the trial court was overturned.
Attention:
If the second spouse enters into a new relationship and registers the marriage, restoration of the previous relationship becomes impossible.
Is it necessary to pay tax?
Alimony falls into the category of payments that are not subject to taxation. By their nature, they are closer to social benefits from the state than to profit. Probably, this fact was the reason for the absence of taxation upon receipt.
When filing a claim, the state fee is also not paid.
This is directly stated in the Tax Code of the Russian Federation. However, it can be collected from the alimony payer after the decision is made.
How does the trial work?
If an application for an order has been submitted, the process is carried out without summoning the parties.
The court either satisfies the demands or sees in them a dispute about the right and explains to the applicant the right to apply to the court in the manner of claim proceedings.
If a claim is filed, the process is as follows:
- The plaintiff submits an application to the reception office of the magistrate of the relevant area.
- The court reviews the documents and either refuses to accept the claim on any legal grounds or schedules a court hearing.
- The court notifies the parties of the hearing.
- The court hearing is conducted on adversarial principles. Each side presents its own arguments, and may refuse any comment and even acknowledge the demands.
- The court considers the parties' arguments, as well as the evidence they provide, and makes a decision.
- After the decision comes into force, the plaintiff can receive it along with a writ of execution and submit it to the bailiff service for enforcement.
Each party must prove the factors it relies on for itself. To do this, you can use documents, as well as witness statements.
Methods
Methods for paying alimony without divorce between spouses are similar to those assigned after divorce:
- By mutual agreement - assigned in a fixed amount. This applies to cases where the payer does not have a stable salary. Spouses agree on the amount of payments themselves.
- According to a court ruling, they are assigned as a percentage of the payer’s income in accordance with legislative norms.
The amount of payments is determined based on the amount of wages or other income of citizens, as well as in accordance with the financial situation of the family.
Voluntary
The ideal way to assign alimony payments is to voluntarily draw up an agreement in essence.
This option is possible if the spouses maintain a good relationship when material problems arise. This option is used in judicial practice less often than the consideration of alimony cases in court, but, nevertheless, the legislation regulates this issue.
Agreement
The agreement on alimony payments is concluded in writing. Its contents are checked by a notary for compliance with the law and certified with a signature. After this, the document acquires legal force and is equivalent to a writ of execution. It must specify the amount of payments, frequency, and procedure for receiving money.
If the payer violates the terms of the agreement, the other party can go to court or the bailiff service. This method of collecting alimony is considered the most civilized way to solve the problem.
The agreement is attractive for those who do not want to advertise themselves as alimony payers at the enterprise, being the father of the family. According to the agreement, the payer transfers the agreed amount personally to the recipient or transfers it to a bank account or card.
Judicial
At the moment when a spouse decides to collect alimony from the father of her children, being legally married to him, it is necessary, first of all, to decide on the collection procedure.
If it is not possible to reach an agreement, then the only acceptable way to split up what you want is to go to court.
The law distinguishes between two options for going to court:
- Filing a claim.
- Filing an application for a court order.
The options differ from each other radically. The first involves a trial, the participation of not only both parties, but also witnesses, if such a need arises. In the second case, the judge makes a decision alone within 5 days without the participation of the parties based on the content of the application.
