Article 113 of the RF IC. Determination of alimony debt

Author of the article: Yulia Kaysina Last modified: January 2020 4056

Situations often arise when a former spouse evades paying alimony. Debt can also arise unintentionally - for example, due to job loss, serious illness, incorrect transfer of money by an accountant, etc. But in any case, the resulting debt will need to be repaid. To determine its value, you will need a resolution on the calculation of alimony arrears.

Who makes a decision regarding arrears of child support?

The bailiff does not have the legal right to refuse to provide information about the amount of debt of the alimony payer to the recipient.

The bailiff is obliged to consider the application within 10 days from the date of its receipt. A day after the decision on the calculation of the debt is issued, the bailiff is obliged to send two copies of it - one for the recipient of alimony and the other for his payer.

It is important to note that this document, like all other decisions made by the bailiff in the framework of enforcement proceedings, has the form of a resolution and only that. There are exceptions here - namely, the calculation of the amount of the share can be drawn up as a separate document, but it is still attached to the resolution.

The resolution itself must contain the following information:

On what basis is the debt calculated within the framework of alimony obligations (in other words, this is a statement);
Information about each of the parties (the alimony payer and the alimony recipient);
The billing period during which no payments were made and the debt was not directly calculated;
Method of calculation (one of several: according to the cost of living, according to the average salary, according to the official salary of the alimony debtor);
The amount of debt.

How to write an application for deduction of alimony from wages, read here.

Most often, this document is used by the alimony recipient for the purpose of filing a claim with the court to collect the alimony debt. It is important to note that although this paper is not mandatory for the court, its legal importance is great enough to make the document significant evidence of the existence of a debt, so it is still better to attach it to the application.

The recipient also has the right to use the document with the calculation of alimony to file a claim in court demanding an increase in the amount of debt due to indexation or the collection of additional funds as a penalty for alimony.

Calculation of debt on alimony payments may be necessary not only for the alimony payer, but also for the debtor. For example, he can use this document when filing a lawsuit in court with a demand to reduce the amount of debt or even eliminate it altogether, if there are legal grounds for this.

Calculation of debt amount for less than a month

Since the bailiff determines the monthly accumulation of debt, it often happens that it is necessary to determine the amount of debt for an incomplete calendar month. This may be necessary, for example, if the payer stopped transferring funds in the middle or end of the month.

To determine the amount of debt in this case, the bailiff:

Determines the amount of alimony that daily : for this, the amount of monthly alimony is divided by the total number of calendar days of the month.
Multiplies the daily amount of alimony by the number of days of the month during which the debt arose. The result is the amount of debt for less than a full month.

Calculation example . Sergey S. must pay 7,000 rubles monthly for the maintenance of his son. On June 10, he was supposed to transfer the amount, but did not do so. In September 2020, the bailiff began calculating the alimony debt:

The debt calculation for June will look like this:

7000 / 30 (number of days in June) = 233 rubles. 33 kopecks – the amount of alimony for one day.
233.33 × 21 (number of days from June 10 to June 30 inclusive) = 4899 rubles. 93 kop. – amount of debt for June.

Cancellation of the resolution on the calculation of alimony arrears

The bailiff is authorized to independently cancel the act before it gains legal force, that is, in the first 10 days from the moment it was adopted. An example of such a situation: the calculation of the amount of debt was made based on the level of the average salary, since the debtor for alimony is on the wanted list, which is why it is not possible to find out his financial situation and sources of income (according to paragraph 4 of Article 113 of the RF IC).

At this time, the debtor is declared and presents certificates stating that he is unemployed or that he received money in a specific amount that exceeds or does not reach the subsistence level. These documents are sufficient grounds for canceling the act without consequences.

The full list of cases when a decision can be canceled is as follows:

A penalty accrues;
The person was deprived of his rights;
A criminal case was opened in connection with malicious non-payment of alimony;
The place of residence of the minor was determined, a ban was imposed on him leaving the country accompanied by the alimony debtor, or the parent’s communication with him was stopped.

If alimony was collected in a fixed amount

When paying alimony in a fixed sum of money (TDS), the monthly debt will be equal to the amount indicated in the writ of execution. However, the difficulty of calculations in this case lies in the fact that this amount of alimony is subject to mandatory indexation in proportion to the increase in the subsistence level (LS) in the region of residence of the claimant (see.

clause 5.2 of the “Methodological recommendations...”).

To index the amount of alimony in the TDS after increasing the monthly minimum, you need to:

Divide the size of the new PM by the size of the PM at the time of the court decision to collect alimony - this way we will find out how many times the new PM has increased compared to the old one.
We multiply the resulting number by the TDS specified in the executive document.

10000 / 8000 = 1.25 – the amount of monthly income in the region of residence has increased since the calculation of alimony;
1.25 × 6000 = 7500 rubles – the amount of alimony in the TDS after indexation.

Challenging the decision on the calculation of alimony arrears

If the bailiff responsible for your case is inactive or commits actions that are contrary to the law, you can appeal the order issued by him regarding the calculation of the alimony debt. It is important to note that the petition must be filed within the first 10 days from the moment you learn of a violation of your rights. Both the alimony recipient and the alimony payer have the right to submit a petition.

The calculation consists of information about all periods of non-payment of child support by the parent who left the family. It is also possible to split the amount by month or quarter and formulate the total amount of debt.

The complaint is filed in the order of subordination to a higher official, that is, it is sent to the head of the bailiff department or to the court against the actions (or, conversely, inaction) of civil service employees.

In what cases can the amount of debt be reduced?

In some cases, the alimony payer may be completely or partially released from the obligation to pay the debt. Such a decision can only be made by a court , and the reasons for the formation of debt must be sufficiently compelling.

Reduction or cancellation of the debt can only occur if the payer is not to blame for its formation. The court may take into account the following reasons:

serious illness of the debtor himself or his relatives, associated with significant financial costs;
the payer encounters force majeure conditions: natural disaster, natural or man-made disaster, and so on;
error of third parties when transferring alimony;
dismissal of the alimony worker from his place of work is not at his request and the inability to find a job in a short time - only with a short period of debt (up to 2 months), since then the payer must either find a new place of work or register with the Employment Center.

Regardless of the reason for the alimony debt, the parent is obliged to pay it. The legislation establishes simple methods for calculating debt.

The calculation of the exact amount is entrusted to employees of the Federal Bailiff Service. To confirm the existence of a debt, the FSSP specialist issues a special resolution. The latter is required for the collection of alimony funds and when applying to a judicial authority.

When is alimony debt calculated?

Calculation of alimony debt is carried out in the following situations:

the spouses executed a voluntary agreement on alimony, specifying in this document all the conditions regarding the amount and procedure for transferring funds to minor children, after which they certified the document from an employee of a notary agency;
the parent left with the children went to court and received a court order to collect child support payments.

If a person does not pay alimony, but the interested party did not previously apply for these payments, and then unexpectedly decided to sue to collect the money, then there is no debt in this case. The plaintiff can only recover funds for the past time, but there are few grounds for a positive court decision.

If there is arrears of alimony, it is only possible to demand collection of funds for the past 36 months. Even if the writ of execution was issued by bailiffs 6 years ago, the debt will be calculated only for the past 3 years. But this rule also has an exception: if the parent evaded fulfilling his alimony obligations, then the funds will be collected for the entire period of non-payment, and not for 36 months.

In what cases can you collect alimony debt?

Child support debt can arise due to various circumstances:

Due to the payer's fault:
complete evasion of payments and others.
In the absence of fault of the person liable for alimony:
the difficult financial situation of the payer, his or her being in a situation of force majeure;
an error by the accounting department or bank that transfers alimony;
mistake by the claimant, for example, if he provided incorrect details for transferring alimony, and so on.

How is alimony calculated?

You can calculate your child support debt in the following ways:

on average wages in the Russian Federation;
based on the cost of living determined in the Russian Federation or the region of residence of the parents (if the debtor does not work);
according to the income of the alimony provider.

Calculation of debt according to average salary

The court orders alimony in this form in the following situations:

the alimony refuses to provide certificates of income received or does not have such documents;
the alimony worker does not officially work;
the payer has no source of income.

In this case, the following formula is used to calculate the amount of debt:

(average salary - the share of alimony established in court or on the basis of an alimony agreement) * number of billing months = amount of debt.

The average salary is constantly changing, as a result of which the accumulated debt is recalculated quarterly.

Calculation of debt according to the cost of living

If the court has decided that alimony payments will be collected in a fixed amount, then they are calculated according to the subsistence level. The amount of salary and other income of the alimony worker is not included in the accounting. The amount of alimony is set as a multiple of the minimum subsistence level at the discretion of the court.

Every quarter, the cost of living undergoes changes, so the bailiff calculates the debt quarterly and indexes the size of the elements.

Debt in such a situation is calculated as follows:

the amount of alimony established in court * the amount of the subsistence minimum in the billing period in a particular city * the duration of evasion of alimony payments = the amount of debt generated.

Calculation of debt according to the income of the alimony worker

An alimony agreement or a court establishes alimony in this way if the parent’s official earnings are in the following amount:

one child – up to 25% of the parent’s income;
two children – up to 33% of income;
for three or more minors – half the parent’s earnings.

If the alimony worker is officially employed, but alimony was not withheld from his source of income for a certain period of time, then the debt is determined as follows:

The bailiff sets the amount of the alimony worker’s salary from which alimony payments can be collected;
Personal income tax in the amount of 13% is collected from salaries;
alimony payments are deducted from the amount remaining;
the amount of money received is multiplied by the number of months during which the debtor evaded his financial obligations.

Example: A man drew up an alimony agreement with his ex-wife, and then had the document certified by an employee of a notary agency. For 2 years, the parent transferred alimony for a minor child in the amount of 10 thousand rubles with a salary of 40 thousand after deduction of personal income tax, which was determined by a voluntary agreement of the former spouses. However, over the past 3 months, the man has been avoiding alimony payments, explaining his behavior by having a car loan. The parent refused to pay child support.

As a result, after 30 months, the spouse filed an application for evasion of alimony, and the bailiff calculated the debt as follows: over the last 3 months, the man’s after-tax income amounted to 120 thousand rubles, and the debt from this earnings is equal to 30 thousand. With the decision, the woman went to court and collected the debt along with the penalty. The court did not consider the availability of a car loan to be a sufficient basis for getting rid of financial obligations.

Alimony obligations

Alimony is financial assistance provided to an incapacitated person by close relatives. Alimony is paid by parents for children, and by adult children for disabled parents. Maintenance obligations may arise by agreement of the parties or by a procedural act issued by a competent person. These documents are binding on both parties. But sometimes people have situations in which they violate the terms of the agreement.

Debt is mainly formed for the following reasons:

Temporary disability due to which the person had no income.
Dismissal, layoff or demotion.
A competent person made mistakes when transferring money.
Army.
Death of a loved one, birth of another child, etc.

The resulting debt is collected by a competent person, and a penalty is also included in the calculation. However, the total amount of the penalty may be reduced at the request of the party. According to Art. 360 CAS RF, decisions of the chief bailiff of the RF, his deputies, bailiff, illegal actions (inaction) can be challenged in court in the manner established by Chapter 22 of this code.

Statement of claim for calculation of alimony debt: sample

Calculation of court debt is the responsibility of the bailiff, but if this employee does not independently determine the amount of the debt. In this case, the recipient of alimony payments will need to draw up a corresponding statement and send it to the bailiff who is handling the case for collecting payments. The official has no right to refuse to consider the application.

The application is submitted in two copies - one each for the claimant of payments and for the bailiff. The document contains the following information:

name of the bailiff service;
information about the applicant – full name without abbreviations, residential address, contact telephone number;
information about the alimony provider;
information about a minor child;
information about the initiation of enforcement proceedings against the parent;
information about the last transferred payment for a minor;
an indication of the reasons why the claimant no longer received alimony payments;
please establish the amount of debt generated for the specified period;
list of documentation attached to the application;
date of application, signature of the person applying.

The plaintiff's procedure

Before calculating alimony arrears, the recipient needs to contact the bailiff service. It is she who opens enforcement proceedings and monitors the completeness and timeliness of payments.

If the money is not transferred in full or on time, the executor has the right to force the debtor to pay.

All this is stipulated in the Law on Enforcement Proceedings. In this situation, the payer's property may be seized. According to this law, the debtor's right to travel abroad is limited. The procedure for monitoring by bailiffs the process of payment of benefits is not always observed.

In some cases, the recipient may request from the bailiffs a document with the calculation of the debt. In the future, you will need to go to court with this paper. The procedure for going to court involves writing a statement of claim demanding that the issue be resolved.

The court gets acquainted with the materials provided and makes a decision. This decision makes it possible to issue a new writ of execution, on the basis of which the debt will be paid. In this situation, the property of the defendant may be subject to recovery.

Resolution on the calculation of accumulated debt

After the bailiff has received the application, he considers it within a 10-day period, and then makes a decision on the calculation of the debt and sends both parties a copy of this document.

The resolution contains the following information:

a statement from the debtor, serving as the basis for calculating alimony debt;
information about the parties;
the settlement period during which the alimony holder avoided fulfilling his financial obligations;
the calculation method used - for example, according to the average salary in the Russian Federation or the cost of living established in the area of residence of the parents;
the amount of debt generated.

The completed resolution can be used to go to court. This document is proof of the existence of arrears of alimony and confirmation of the requirements specified in the applicant’s claim. The resolution can also be used to ask the court to increase the amount of debt on the basis of collecting a penalty or indexing payments.

This resolution can also be used by the debtor if he intends to ask the court to release himself from financial obligations or reduce the amount of the accrued debt. The following factors may be the basis for this:

serious illness that deprived the debtor of his ability to work;
deteriorated financial condition (liquidation of the enterprise where the parent worked);
the emergence of new dependents requiring financial support (elderly parents, small children from a new marriage, close relatives with disabilities);
changes in the marital status of the parties (the woman remarried a new man).

If alimony was not transferred to the recipient of payments due to the fault of third parties (for example, due to an error made by the company’s accountant)... In such cases, the alimony provider is released from the obligation to repay the debt, and third parties face a fine.

What does the document contain?

After determining the amount of alimony debt, the FSSP employee issues a special resolution. The document contains the following information:

the reason for calculating arrears of alimony (statement from one of the parents);
information about the payer and recipient of funds for child support;
calculation of debt and the period when payments were not made;
method for determining the unpaid amount (based on the average salary, all income of the debtor or the subsistence level);
amount of alimony debt.

Let's sum it up

If the alimony provider has not transferred funds to the child for a long time, and the bailiff is inactive, then the recipient of the alimony has the right to send this employee an application for settlement of the debt. In the future, the debt resolution can be used to go to court, which will take all necessary measures to pay off the accumulated debt.

The debt is calculated according to the method chosen for collecting alimony. For example, according to the salary of the alimony worker, the average income or the cost of living established at the federal level or the region of residence of the parents.

If there are compelling reasons, the alimony holder has the right to apply to the court with a request to reduce the amount of alimony or completely exempt himself from it. The court takes many factors into account when considering a case.

If you want to find out how to solve your particular problem, please use the online consultant form below or call :

Grounds for challenge

An appeal against the calculation of debt can be filed by both the recipient of payments and the payer. The basis that the plaintiff can use is the appearance of additional, unforeseen expenses for the child. This is provided that these expenses are not included in the shared deduction.

A claim for recalculation may be filed by the applicant if there are such additional costs for:

treatment;
rehabilitation;
special treatment
additional service

In a situation where the recipient incurs corresponding additional costs, and the court has appointed a share of the income, he can appeal the decision. An appeal is a challenge to a decision of a lower court by a higher court.

Resolution - calculation of alimony debt

The resolution on the calculation of alimony arrears is made by the bailiff who conducts enforcement proceedings. You cannot expect this from the bailiff on your own (on your own initiative), so in practice, if you need such a resolution, you need to submit a petition to the bailiff.

It often happens that it is enough to ask verbally; it has even happened that during reception hours you come to the bailiff, and he immediately, in front of you, makes a calculation and hands it over.

If this is not the case in your case, write a petition (you can right there, in the corridor of the bailiff service, by hand, on a blank sheet of paper) in any form: “ To the Leninsky ROSP from the collector, full name, address, debtor so and so. I ask you to issue a resolution on the calculation of arrears of alimony

". Signature, date.

A frequent question during consultations: can the bailiff then change his own calculation and reduce the amount of alimony debt?

The answer is yes, it can.

Usually this situation happens when at first the bailiff has not yet found the debtor, and made the calculation based on the average Russian salary (according to clause 4 of Article 113 of the Family Code of the Russian Federation). The result was one amount of debt, the decision was made, and even 10 days for the appeal passed, the debtor did not appeal, that is, it supposedly entered into legal force.

But then the debtor presents the bailiff with a certificate stating that he, it turns out, worked at such and such a job all these months, and his salary was such and such. And the bailiff issues a second resolution on the calculation of the alimony debt - based on the actual earnings received by the debtor.

Please note point 2:

Reasons for debt

Whatever the reason for the alimony debt, the payer must pay it, and the law provides clear and ordinary methods for calculating the debt.

Alimony debt may arise in the event of non-payment or payment in an amount less than that established by the alimony agreement, court decision or court order.
deliberate evasion of payments;
financial difficulties associated with lack of work, illness or other circumstances;
incorrect understatement of the amount of alimony payments when deducted from earnings;
lack of information about the location or details for transferring funds to the recipient;
refusal by the recipient of alimony payments;
other.

For each of these cases, the legislation provides for a method for calculating debt (in the Family Code of the Russian Federation, in the Federal Law “On Enforcement Proceedings”, in a number of government regulations).

Comments to Art. 113 IC RF

1. Paragraph 1 of the commented article establishes a general rule for the collection of alimony for the past period: it is paid within the three-year period preceding the presentation of the writ of execution or a notarized agreement on the payment of alimony to be collected. This rule also applies in the event of a court order. It is necessary to distinguish between the collection of alimony for the past period in accordance with paragraph 2 of Art. 107 of the RF IC and the collection of alimony under Art. 113 of the RF IC for the past period on the basis of an agreement on the payment of alimony or a writ of execution. In the first case, we are talking about the payment of amounts for the period preceding the application to the court, if the court established that before the application to the court, measures were taken to obtain funds for maintenance, but alimony was not received due to the evasion of the person obliged to pay alimony from paying it. When collecting alimony under Art. 113 of the RF IC, payments should have been made on the basis of an already issued writ of execution or a notarized agreement on the payment of alimony, but were not actually made, i.e. debt has arisen on the basis of documents determined by law for the collection of alimony.

2. In cases where the withholding of alimony on the basis of a writ of execution or a notarized agreement on the payment of alimony was not made through the fault of the alimony payer, the debt is recovered for the entire period during which alimony was not paid, even if its duration is more than three years. Guilty behavior of the alimony payer is understood not only as the case of non-payment of alimony, but also the commission of other actions, such as concealing earnings, other income, place of work or residence, understating the amount of alimony paid, etc.

3. Calculation of the amount of debt is entrusted to the bailiff, who determines it based on the amount of alimony determined by a court decision or agreement on the payment of alimony: the established amount of alimony is multiplied by the number of months (periods) during which no payments were made. In this case, the rule established by Art. 117 of the RF IC, on the indexation of alimony payments in proportion to the increase in the minimum wage.

4. The norms of paragraph 4 of the commented article relate to the calculation of the amount of arrears for alimony for minor children, the amount of which is determined as a share of the earnings and (or) other income of the paying parent. The amount of alimony debt is determined according to the scheme established by Art. 81 of the RF IC: for one child - one fourth, for two children - one third, for three or more children - half of the earnings or other income of the parents for the period during which alimony was not collected. In cases where it is impossible to determine the amount of income due to the failure to provide documents confirming the earnings and (or) other income of the debtor, or during this period he did not work, alimony arrears should be determined based on the average salary in the Russian Federation at the time debt collection. However, determining the amount of debt in this manner may lead to a violation of the interests of one of the parties (for example, it does not meet the interests of the child or puts the payer in a difficult financial situation). Therefore, the law establishes the right of the party whose interests have been violated to file a claim in court to determine the amount of debt in a fixed amount of money, based on the financial and marital status of the parties and other noteworthy circumstances.

This is interesting: Establishing paternity through special proceedings

5. The parties are given the right, if they disagree with the determination of alimony debt, to appeal the actions of the bailiff in the manner prescribed by Chapter. 18 of the Law on Enforcement Proceedings. A complaint against the actions of a bailiff is filed within ten days from the date the bailiff issues a decision or commits the appealed action (Article 122 of the Law on Enforcement Proceedings). A complaint against the actions of a bailiff can be filed with the senior bailiff, who is subordinate to this bailiff (clause 1 of Article 123 of the Law on Enforcement Proceedings). The actions of a bailiff can be challenged in court in the area of activity of which the specified person performs his duties (Clause 1 of Article 128 of the Law on Enforcement Proceedings).

6. During the period of search for the child’s parents who are evading payment of alimony, a monthly child benefit is paid, which is one of the types of state benefits for citizens with children, established by Art. 3 of the Federal Law of May 19, 1995 N 81-FZ “On state benefits for citizens with children.” Providing state benefits to citizens with children is a constitutional and legal obligation of the state to protect motherhood and childhood, which is implemented within the framework of public legal relations. In accordance with Art. 4 of the Federal Law “On State Benefits for Citizens with Children,” the payment of monthly child benefits must be made from the budget of a constituent entity of the Russian Federation, and these funds are taken into account in mutual settlements between the federal budget and the budget of a constituent entity of the Russian Federation and are allocated for a specific purpose.

Ruling of the Constitutional Court of the Russian Federation dated July 18, 2006 N 366-O “On the refusal to accept for consideration the complaint of citizen E.A. Arbuzova.” for violation of her constitutional rights by paragraph 2 of Article 120 of the Civil Code of the Russian Federation” // Constitutional justice in the CIS and Baltic countries. 2006. N 25.

Paragraph 6 of the commented article provides that the amount of the monthly child benefit increases by fifty percent for children whose parents evade paying alimony or in other cases provided for by the legislation of the Russian Federation, when the collection of alimony is impossible. The amounts of monthly child benefits paid during the search for his parents who are evading payment of alimony are recovered from these parents with an accrual of ten percent of the amounts paid to the income of the budgets of the constituent entities of the Russian Federation. At the same time, in Art. 16 of the Federal Law “On State Benefits for Citizens with Children” states that the amount, procedure for assigning, indexing and paying monthly child benefits are established by laws and other regulatory legal acts of the constituent entity of the Russian Federation. Consequently, the provisions of paragraph 6 of Art. 113 of the RF IC must be applied taking into account the standards established by the constituent entities of the Russian Federation.

Debt appeal

The resolution of the joint venture is a document approving a certain amount of alimony obligation for the elapsed period of time.
The document is sent directly to the debtor and the claimant. There are several situations where there really are legal grounds to challenge the requirements, to achieve a review and cancellation of the decision of the SSP on the calculation of alimony arrears. For example, a judicial act states that the debtor is unemployed and alimony is withheld in a shared amount. The bailiff, at the request of the recipient of assistance, begins to calculate the debt. He takes as his base the outdated cost of living per capita in the region. Accordingly, based on the calculation results, the amount of debt to be collected will be significantly lower than it should be by law.

In this situation, the claimant files a complaint justifying the position and attaching evidentiary documents. For example, an official certificate from Rosstat, the employment center, or a local government body can confirm the size of the subsistence minimum.

The debtor has an equal right to challenge the action of the bailiff. If the arrears are significantly overestimated, the alimony recipient receives an additional financial burden and loses the opportunity to satisfy the requirement in full. It is important to provide solid arguments to support your opinion. You can attach certificates about the amount of income, average indicators for calculation by country or region, as well as the calculation itself, according to which the amount of liabilities should be significantly less.

You can file an appeal if the debtor has a difficult life situation

The creditor has the right to petition for a revision of the amount of debt if the average amounts determined by federal or municipal regulations are used in the calculation, and the actual source of income of the debtor significantly exceeds the size of these indicators. The recipient may indicate in the complaint information about the place of employment of the alimony payer and the amount of his potential earnings.

The defaulter can file an appeal against the bailiff's decision if the current life situation does not allow him to repay the calculated amount of the debt. Such circumstances include the following:

Loss of ability to work, disability.
Receipt by a minor child, the recipient of assistance, of real income from renting out property.
The debtor is forced to support a large number of dependents.
An individual has suffered from an emergency, natural disaster, or military action.
Lack of own housing, etc.

The basis for reducing the amount of debt may be proof of the citizen’s innocence in the formation of the debt. For example, an enterprise accountant withheld a smaller percentage of alimony that did not correspond to the contents of the writ of execution. Or the employer is in a difficult financial situation and does not pay wages to the worker or transfer alimony to the claimant. That is, in fact, the debtor does not refuse to fulfill the demands of the court or bailiff, but finds himself a hostage to the situation. Therefore, a citizen has the right to challenge the validity and amount of the debt.

An alternative to filing a complaint against a bailiff

Such a feature as alternativeness indicates that the applicant can file a complaint at his own discretion:

In a departmental manner (that is, according to the principle of subordination). In this case, the application is submitted to the senior bailiff working in the same territorial branch of the FSSP.
Judicially. In this case, the document is submitted to the court of general jurisdiction at the location of the territorial body of the SSP.

It is worth remembering that filing a complaint against the actions of a bailiff in the order of subordination does not at all exclude the possibility of simultaneously filing a complaint against the actions of this official in court.

Separately, it is worth noting the fact that contacting the prosecutor’s office may not yield anything, so experts do not recommend wasting time on this authority. According to the law, the prosecutor's office has the right to only supervise the activities of bailiffs, and the prosecutor, as well as his assistants, can take any actions only if there is an administrative or criminal offense (and this circumstance must be proven by the applicant).

How to appeal a decision in court?

An appeal against a decision is carried out within the framework of administrative proceedings. The claim is sent to the district court at the location of the FSSP.

What it looks like:

The plaintiff files a claim drawn up taking into account the requirements of Art. 124 CAS RF. It must contain the name of the defendant, information about the contested decision, claims to invalidate the document and to order a new recalculation.
Within 3 days, the judge makes a decision to accept the statement of claim for proceedings. Copies are sent to all parties.
The case is considered within 2 months. This period includes preparation for proceedings.
At the end of the trial, a decision is made in the deliberation room.

An extract from the decision is transmitted to the parties. Representatives of the FSSP are usually present at the meetings.

What to do after receiving a court decision?

Having received a court decision, the claimant or debtor submits it to the FSSP for execution. The deadline for fulfilling the requirements is indicated in the document.

With further inaction, it is allowed to re-file an administrative claim, but this time due to failure to comply with the requirements of the court decision. The defendant here is not the representative of the FSSP, but the bailiff himself.

Based on the results, he may be brought to administrative responsibility, and the head of the FSSP may be subject to disciplinary action: he may be reprimanded, reprimanded, or fired if such offenses have been observed by the bailiff more than once.

In some cases, criminal liability arises under Art. 315 of the Criminal Code of the Russian Federation, if damage was caused to the plaintiff by inaction. What penalties are possible:

fine up to 200,000 rubles. or in the amount of salary up to 18 months;
disqualification for 5 years;
forced labor for up to 2 years;
compulsory work up to 480 hours;
imprisonment for up to 2 years;
arrest for up to six months.

The verdict on criminal liability is passed by the district court - the lawsuit should also be filed there.

Can a defaulter travel outside the country?

This question worries many debtors who, for example, have money for a vacation, but do not have money for children. You can answer it as follows: the bailiff has the right to prohibit the defaulter from leaving the Russian Federation anywhere. In this case, it is necessary that the amount of debt be more than 10 thousand rubles.

Check for debt before purchasing a resort package! As a result: if a person does not pay alimony, then the debt grows like a snowball. Financial sanctions are not the worst thing. Under certain conditions, the defaulter may receive a criminal record and a prison sentence.

Comments on Article 113 of the RF IC

Lawyers also leave comments on the published article. In fact, the debt is determined by the amounts actually unpaid or underpaid by the payer parent after the court ordered alimony. There is a fundamental difference between alimony debt and collection of payments for a previous period. The previous period can be up to 3 years; the parent is obliged to reimburse funds equal to those assigned in periodic payments for the time when the second parent did not exercise his rights to receive payments. The debt appears after the exercise of this right and may be subject to fines and penalties.

Debt arises for various reasons. Of these, objective ones include those that are not related to the will of the payer. If the payer did not fulfill his obligation due to valid reasons or system failures in banks, recovery with punitive sanctions is impossible. Subjective reasons for the occurrence of debt arise when the debtor is completely at fault, his unwillingness to fulfill his parental duty to the child.

This article with comments is fully contained in the RF IC. It is closely related to other legal norms designed to protect the rights of children and force parents to remain so until their biological children grow up.

Appeal period

The procedure for challenging the contents of a bailiff's decision regarding the calculation of alimony debt is regulated by Chapter 18 of the Federal Law No. 229-FZ of October 2, 2007. According to Art. 122 of this law, the disputant has the right to appeal the actions of the executor within ten days after the publication of the document. If the debtor or the collector were not properly notified of the date of the enforcement actions by the bailiff, the time period for filing a complaint is calculated from the day when the person was able to learn about the decision.

Failure by the bailiff to fulfill his duties, which led to an erroneous calculation of the debt, is grounds for appeal

An individual can protect his rights and defend his interests by sending a written appeal to a senior official of the FSSP, to the prosecutor's office, or to a court of appropriate jurisdiction. The prosecutor reviews the application within a month; processing of the document by the court may take longer, depending on the circumstances of the case.

Making a complaint

A protest against the correctness of the calculation of alimony debt is submitted in writing directly by the injured party or its authorized representative on the basis of a notarized power of attorney. To draw up the document, you can use a ready-made sample statement of claim to appeal the bailiff’s decision on the calculation of alimony arrears. The requirements for its content are described in Art. 124 Federal Law No. 229. The court may reject the debtor’s petition

We list the required application details:

Address for receiving the request.
Contact information for the bailiff department and the executor who issued the order.
Full name, passport details of the individual challenging the document.
A detailed description of the grounds on which the contents of the official’s form are considered erroneous and invalid.
Statement of requirements, wishes, recommendations.
Date of preparation.
Applicant's signature.
List of applications, if any.

It is important that the presence of an evidence base will have a direct impact on the speed and effectiveness of processing the appeal. Therefore, it is recommended to attach original certificates, copies of orders, bank statements, statements of other persons and other forms to the appeal. If the documents are not provided, the recipient of the complaint does not have the right to refuse to accept it; additional requests are sent to the applicant and the consideration period is extended.

If the circumstances described in Art. 125 Federal Law No. 229, the person’s petition to challenge the bailiff’s decision will be rejected. The refusal must be issued within three days. In this case, the applicant is not deprived of the right to resubmit the document, taking into account adjustments. Based on the result of a positive consideration of the complaint, the prosecutor's office and the court may cancel the bailiff's decision.

The bailiff's decision to collect arrears from the debtor for alimony obligations allows the collector to protect his rights and interests. If a document contains unacceptable requirements, each party to the relationship has the right to protest the document legally. It is important to have clear arguments, evidence of correctness and file a complaint within the established time frame.

Commentary on Article 113 of the RF IC:

Large alimony arrears can significantly worsen the situation of the recipient.

First of all, the collection of alimony arrears should be distinguished from the collection of alimony for the past period. Debt arises in cases where the parties entered into an agreement to pay alimony or the court made a decision to collect alimony, but in fact the payment of alimony was not made according to these documents. Collection of alimony for the past period occurs when the person had the right to alimony in accordance with Ch. 13, 14 or 15 of the IC, but the parties did not enter into an agreement on the payment of alimony, and the person entitled to it did not file a claim in court to collect alimony.

Consequently, when collecting a debt, we are talking about the payment of amounts payable on the basis of an agreement of the parties or a court decision, and when collecting alimony for the past period in accordance with Part 2, Clause 2, Art. 107 IC - on the payment of amounts for the period preceding the application to the court.

Debt can arise for various reasons. It can arise either as a result of the debtor’s guilty actions - evasion of paying alimony, or due to the fault of the alimony recipient, for example, in the case of failure to present a writ of execution or a notarized agreement for collection, failure to report a change of place of residence, refusal to receive alimony, etc. d.

It is possible that debt may arise due to circumstances beyond the control of the parties: due to the illness of the payer, lack of funds to pay alimony, insolvency of the enterprise where the debtor works, delay in payment of wages, location of one of the parties in the territory where a war or emergency has been declared position, in the territory of military operations, etc. Repayment of a debt can put the person paying alimony in a very difficult situation, therefore the period within which the debt must be repaid is limited to three years immediately preceding the presentation of a writ of execution or a notarized agreement for collection.

Debt arising through the fault of the debtor is recovered for the entire period during which alimony was not paid, regardless of the three-year period.

Current legislation allows collection in any cases where the debt arose through the fault of the debtor, regardless of whether he was wanted or not. The guilty behavior of the debtor, which led to the formation of debt, can also be expressed in his concealment of his income or other property, failure to report a change in place of work or residence, and other actions that impede the collection of alimony. Compensation by a person obligated to pay alimony for the resulting debt does not exempt him from paying the penalty and compensation for losses provided for in Art. 115 SK.

The amount of debt is determined by the bailiff by multiplying the amount of alimony collected in a fixed amount by the number of periods during which alimony was payable but was not actually paid.

The debt to pay child support for minor children by their parents is determined as follows. The bailiff must obtain information about the wages and other income of the alimony payer during this period and, based on this data, calculate the amount of alimony to be paid during the period of debt formation. Failure to provide the bailiff with documents confirming earnings or income upon request is considered as evasion of alimony payment.

Based on the average salary in the Russian Federation at the time of debt formation, if the debtor did not work during the period of debt formation or documents confirming his earnings or other income were not submitted, recovery is intended to protect both the recipient and the alimony payer.

In different regions of the Russian Federation, the level of income of the population varies greatly, and therefore the collection of alimony based on the average salary in the area in which the parent paying alimony lives, or in the area in which the child lives, would lead to a violation of the interests of either the parent or child. Using the average wage level in the Russian Federation is intended to smooth out existing regional differences.

If the parent paying alimony did not work for a good reason during the period of debt formation and, therefore, did not receive income, determining the debt based on the average salary in the Russian Federation can significantly violate his rights. If, on the contrary, there is evidence that the level of his income significantly exceeded the average salary in the Russian Federation, but it is not possible to collect documents confirming his monthly income, determining the debt in this way does not meet the interests of the child. In such situations, either party has the right to file a claim in court to determine the debt in a fixed amount of money. The court, taking into account all the specific circumstances of the case, determines the debt based on the financial and family status of the parties and other noteworthy circumstances.

In accordance with Federal Law No. 81-FZ of May 19, 1995 “On State Benefits for Citizens with Children,” the amount of the monthly benefit for a child whose parents evade paying child support increases by 50%. When collecting debt from parents who evade paying child support, amounts paid to the child during the period when child support was not paid, in the amount of 50% of the benefit, are deducted from the amount of the debt and are not paid to the claimant.

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This measure is intended to compensate for the budget costs of paying child benefits in an increased amount and to encourage the payer to timely pay alimony to the claimant. The claimant cannot receive the specified amount twice: once in the form of the specified increase in child support and a second time in the form of arrears in alimony, which would lead to his unjust enrichment.

Legal conflict of establishing debt

In accordance with the regulations of the Russian Investigative Committee, a procedure for resolving legal conflicts is provided. The bailiff is obliged to carry out a full indexation of the payer's alimony payments in accordance with the proportions of the increase in the established minimum wage. This makes it possible to clearly establish the possibility of subsequent collection for the past period, taking into account the adoption of adjustments to legislative practice. Within the framework of the current Article 113 of the Family Code, a procedure is provided for protecting the interests of the rights of all minor children who will be able to fully receive funds for their own decent maintenance.

Within the framework of the stated procedure, Article 81 of the Family Code establishes the principle of receiving a share of specific earnings, possible other income in that early period of time when the alimony payer did not have alimony payments. When a precedent arises and it turns out that the debtor did not work during the specified period of time (just as the existence of his earnings or additional income is not documented), the debt itself for the formed claims for alimony is established based on the average salary. The procedure for considering an appeal does not provide for the allocation of an excessive amount of time to this process; the issue is resolved in the shortest possible time.

Indexation of alimony

When collecting alimony in a fixed amount, the Family Code of the Russian Federation provides for indexation of alimony. Indexation of alimony means that the size of monthly payments increases depending on changes in the cost of living. When the cost of living increases, the amount of maintenance increases, and when it decreases, it decreases.

To index alimony, an increase in the cost of living for the corresponding socio-demographic group of the population established in the relevant constituent entity of the Russian Federation at the place of residence of the person receiving alimony is accepted.

For example, in the Irkutsk region, by Decree of the Government of the Irkutsk Region dated January 30, 2014 N 38-pp, the cost of living in the Irkutsk region for the fourth quarter of 2013 for children was established in the amount of 7,766 rubles, in the third quarter of 2013 this amount was 6,598 rubles. This means that in the period from October to December 2013, the amount withheld for alimony should be indexed 1.177 times.

Since December 1, 2011, courts have been collecting alimony in an amount of money in proportion to the minimum subsistence level; before that, the amount of maintenance was determined by the minimum wage (minimum wage). For indexation of alimony, it does not matter in what amounts the alimony is collected; in any case, it will be indexed according to the subsistence level.

If the subsistence level in a constituent entity of the Russian Federation is not determined, alimony is indexed according to the subsistence level, which is determined by the Government of the Russian Federation every quarter.

Indexation of alimony is carried out by the bailiff or the organization where the document on payment of alimony is being executed.