Claim to change the alimony payment agreement: grounds for challenging the agreement

Alimony obligations can be established for a citizen if for some reason he cannot or does not want to help his dependents voluntarily, however, the legislation provides for the possibility of concluding an agreement on alimony payments between the payer and the recipient if they were able to agree on all circumstances of payment of funds. An agreement to pay alimony can only be declared invalid in court upon the application of one of the parties; the court assesses the legality of the provision of the contract and then makes a decision.

The concept of alimony agreement

The agreement on the payment of alimony is of a civil nature. This agreement is concluded by parents to resolve the issue of financial support for their common children. The conditions, procedure, and methods of fulfilling alimony obligations are governed by an agreement on the basis of Art. 104 of the Family Code.

In accordance with the provisions of Article 100 of the family law, such an agreement must be concluded in writing, in the presence of a notary. After the conclusion, it must be certified.

When certifying a document, the notary checks:

The legal capacity of the parties to the agreement;
Lack of coercion and meaningful will of the parties;
Absence of conditions that are deliberately enslaving or violative of the interests of the child or any of the parents.

In most cases, a child support agreement is concluded for a long time (usually until the child reaches adulthood), and early termination often occurs.

IMPORTANT: According to the agreement, the child cannot receive less funds than would be due to him by law. Otherwise, the document may be challenged in court.

Certification of the agreement by a notary

The settlement agreement receives legal force only after it is signed by a notary. A couple can contact a public notary or a private office with the following documents:

participants' passports;
3 originals of the contract;
Marriage certificate;
when resolving issues about children - a personal document of each child;
when resolving property disputes - documents for material assets.

Notary's tasks:

confirmation of the identity of each participant;
checking the content for errors (legal, semantic, spelling);
exclusion from the content of conditions that violate the law or the interests of participants;
confirmation of the voluntariness of participation and the sanity of the participants;
contract signing – approval;
registration of the agreement in a single database.

Art. 333.24 of the Tax Code of the Russian Federation provides for the amount of state duty when using the services of a notary:

resolution of property issues (property division agreement) - half a percent of the total assessment of material assets (300 - 20,000 rubles);
500 rub. – non-property transactions;
250 rub. – alimony;
500 rub. - marriage contract.

The price is set based on the number of issues being considered and is compensated by the parties to the settlement agreement in half. Each copy of the contract is paid separately.

Additionally, the parties need to pay the notary's costs for technical work (copies, forms). In total, the procedure can cost from 1,000 to 25,000 rubles (if there is a property dispute).

How to terminate an alimony agreement?

The contract is amended or terminated in cases where the financial or family status of one or both parents changes significantly. If agreement on a change in the agreement cannot be reached, it must be terminated.

Grounds for termination may include:

Significant change in the level of income of the alimony holder.
Improvement or deterioration in the financial level of the alimony recipient;
Change in the marital status of one of the former spouses (For example, the creation of a new family by the payer and the birth of other children).

A significant change in the income of the alimony provider is considered to be cases when a person is unable to pay the agreed amount of alimony after losing his job, due to health reasons, or, on the contrary, his financial capabilities have increased. A change in the financial condition of the recipient should be understood as situations in which, due to unforeseen circumstances, larger sums must be spent on the maintenance of the child (For example, the child’s illness).

The child’s parents can terminate the agreement in two main ways:

Voluntarily, by visiting a notary and canceling the concluded agreement;
Through the court at the request of one of the interested parties.

Also, if the cause of the conflict is one or more conditions, the agreement can be changed in court and will continue to be valid in relation to the remaining conditions.

Grounds for invalidation

Within the legal system, the grounds for invalidating a contract can be divided into two groups: general grounds and special grounds, which arise under certain circumstances.

The general grounds for invalidating an agreement on child support for a minor include:

Inconsistency of the provisions of the contract with current legislation.
Failure of the parties to comply with the terms of the agreement, in particular, non-payment of alimony or payment in insufficient quantities.
Conclusion of a transaction by parties who are completely or partially deprived of legal capacity.
Conclusion of an agreement by citizens who, at a given period of time, cannot be responsible for their actions and actions, for example, under the influence of psychotropic drugs.
Entering into an imaginary or feigned agreement.
Concluding an agreement on alimony under the influence of other persons: misrepresentation, deception, etc.

Special grounds are understood as terms of the contract that should not contradict a special rule of law, but do contradict it. Family law establishes only one rule of law, which the agreement cannot contradict: the amount of alimony payments should not be lower than the amount of alimony that the child could receive if the case were considered in court. However, the RF IC does not limit the use of other special grounds that can be developed by bailiffs or guardianship authorities.

Termination procedure and procedure

If the parents decide at the meeting that starting from today there is no need to pay child support, the obligations to finance the children do not disappear. That is, an oral agreement is not a sufficient basis for terminating or changing the agreement.

All transactions with the agreement related to changes, editing or cancellation of its validity are carried out only in writing. A prerequisite is the presence of a notary in the event of a voluntary decision. If there is no consensus between the parents, termination of the notarial agreement on alimony will be permissible only through the court.

Voluntary termination

The procedure for terminating an agreement on alimony payments is formal and is possible subject to specific conditions:

The child support agreement is terminated at the request of the parents at any time, provided that the necessary conditions are met.
Since to conclude such agreements it is necessary to have them certified by a notary, termination follows the same principle.
The agreement is terminated only in cases of mutual consent of the parents. Unilateral termination of the contract by only one participant is prohibited.

The parties may at their own discretion cancel the agreement if possible and necessary. In this case, one participant refuses to receive child support, and the second is relieved of the burden of paying it.

If alimony was paid from the father’s salary, then after receiving a notarized document on the termination of the previously reached agreement, it must be provided to the employer of the former payer to cancel the deductions from the salary.

Through the court

If the ex-husband and wife cannot agree to change the provisions of the alimony agreement or terminate it, either party may file a claim with the courts.

Typically, the initiator of legal proceedings is the recipient of financial support if the alimony provider refuses to fulfill his duties, or the payer himself, who, due to circumstances, cannot make payments in the amounts specified in the agreement.

Less often, the plaintiff is the payer who sought a reduction or increase in the amount of alimony, but was refused.

The most common reasons for termination of alimony by the payer:

loss of work and, accordingly, income;
the birth and need to support other children;
serious illness of the child support worker;
health problems among family members of the payer.

The consideration of such cases in court is open and adversarial. The parties are obliged to explain to the court their point of view and requirements, supporting them with evidence.

IMPORTANT: Before starting litigation, it is recommended to send the second party a written proposal to terminate the contract. In this case, you must indicate the reason for termination of the contract and indicate a specific deadline for the response. If no deadlines are specified, the response must arrive within thirty days. The best option is to send an offer by registered letter with notification.

This will allow you to avoid unnecessary questions in court, especially if the alimony agreement specifically states the procedure for terminating the agreement. Failure to comply with the pre-trial procedure for terminating the contract may serve as grounds for returning the statement of claim.

Jurisdiction

In the first instance, the magistrate's court deals with cases of termination of agreements on the payment of child support. When considering the case, the court takes into account the financial interests of the children. Termination of the contract is not grounds for the payer to lose the obligation to support the child.

At the request of the second party, he is assigned a different type of payment - in shares of all types of earnings or a fixed amount, in a fixed sum of money.

In this case, the court may reduce the amount of financial obligations to those specified by law. Often, when collecting alimony according to the law, the amount is an order of magnitude less, especially when the payer is required to pay the minimum alimony.

Geographically, the claim is filed at the plaintiff’s place of residence if a minor child lives with him. The application can also be submitted at the respondent’s place of residence, at the discretion of the applicant.

If the validity of the agreement cannot be challenged

In cases where the validity of the agreement is undeniable, a party who disagrees with its provisions has the right to file a claim to change certain clauses or the agreement as a whole.

But this is only possible if a transaction concluded in accordance with all the rules no longer meets the legal rights and interests of the payer or recipient. For example, if one of them:

Income has decreased or, conversely, increased.
My health has worsened.
There was a need for additional expenses.
Marital status has changed.
Other obligations have emerged that deserve special attention.

If there is no understanding from the other party to the agreement, the interested party has the right to seek resolution of the issue from a judge who, if there are sufficient grounds, may change the amount of alimony specified in the agreement, apply indexation, or impose/remove additional obligations.

The invalidity of agreements is not as simple as it seems at first glance. The ambiguity of legislative provisions allows us to interpret the grounds of nullity and voidability in different ways. Because of this, confusion often arises, especially if counterarguments from the opposing side enter the process.

Our lawyers can bring clarity to the resolution of the issue and increase the chances of a satisfactory outcome. You can contact them for a free consultation right now, via an electronic form or by calling the specified phone number.

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Claim for termination of alimony payment agreement (sample)

The general requirements for the statement of claim are reflected in Art. 131-132 Code of Civil Procedure of the Russian Federation. The law does not contain any separate provisions regulating the preparation of claims of this particular type.

Adhering to the general requirements of the law, the application must indicate the following information:

Full name of the court, its address;
Information about the participants in the process: full name, registration address and actual location. You can also specify contacts;
Indication of the name of the claim;
Description of the essence of the case: when the child was born, why alimony was withheld by agreement;
Indication of information about the agreement: when it was concluded, general conditions, conflict conditions;
Information about witnesses;
A petition to the court listing the necessary requirements;
Complete list of attached documents.
Date and signature.

To draw up a claim in strict accordance with the provisions of the law, it is better to seek qualified legal assistance. Experienced lawyers will not only give advice on your issue, but will also help you draw up a statement of claim correctly.

Consultation with our specialists on the website is free - contact us right now.

Sample application for alimony for three years

Many parents do not want to support their own children or a child, so his guardian or the second parent, most often the mother, can file a claim for child support with the judicial authorities. By decision of the court, forced calculation and collection of alimony may be imposed.

It is important! When drawing up an application, you must adhere to the strict rules and requirements that are set out in the Civil Code of the Russian Federation. If you don’t know where to apply, where you can get an application form for alimony, you need the professional help of a good lawyer

With its help, you will be able to correctly and competently draw up an application for the collection of child support, a sample of which will be provided to you by the lawyer advising you. If the applicant does not have reliable information regarding the defendant’s place of residence, the application is submitted where the plaintiff lives.

Claim to change the alimony agreement

It happens that the issue of terminating an agreement is not a matter of principle for the parties. For example, when the cause of the conflict was disagreement with a change in one or more conditions. In this case, one of the parents can file a claim to change the terms of the child support agreement.

The requirements for the claim and the content will be very similar to the claim for termination of the agreement, with the only difference that here you will need to indicate:

Measures taken to reach agreement on controversial points;
Reasons for not reaching agreement;
Problematic points of the document that caused the conflict;
Demand to the court according to the circumstances.

This document is also signed and submitted to the court along with the documents.

For reference, you can download a sample claim to change the alimony agreement below. Please consult with a lawyer in advance regarding how to fill it out and prepare it yourself.

When is a claim necessary?

Divorce without children and with the full consent of the spouses is carried out through the civil registry office. The participation of a judge is also not necessary if the spouse of a missing person, incompetent person, or sentenced to imprisonment for a crime (regardless of the presence of common children) applies for divorce.

In all other cases, the divorce process is carried out in court, according to the procedure of claim proceedings. And the spouses can declare their desire to terminate the marital union by filing a lawsuit.

A claim in case of divorce is mandatory*:

If you have common (including adopted) minor children.
In case of categorical disagreement of one of the spouses with the divorce.

* - if the location of each spouse is known, none of them is deprived of freedom or legal capacity.

Also, often during a divorce, the issue of collecting alimony arises. It can be resolved peacefully through the conclusion of an agreement between the spouses, in which they jointly determine the amount of monthly maintenance, the procedure for its payment and other significant additions.

When an agreement cannot be reached, the case is referred to a judicial authority. It can be resolved:

Together with demands for termination (a lawsuit is required).
Separately, before or after a divorce, in the order of writ proceedings - for the recovery of alimony as a percentage (an application drawn up by analogy with the claim is required).
Separately from the case of divorce, in the order of claim proceedings - for the collection of alimony in a fixed amount (a claim is required).

In other words, a claim for divorce and collection of alimony is necessary in the case when one of the spouses or the parents of minor children files for divorce. If the separation of the marital relationship is formalized by the civil registry office, the application for the collection of alimony is drawn up separately and sent to the court as an independent demand.

Documentation

There is no single list of documents for terminating an alimony agreement. But in any case, you will need to present to the court:

A copy of the claim for the defendant;
A copy of your passport;
Copies of personal documents: marriage, divorce, birth certificates;
A copy of the alimony agreement;
Certificates, characteristics, information about income - everything that confirms the circumstances for terminating or changing the agreement.

Documents are submitted mainly in copies. You must take the originals with you to court if the judge decides to examine them in person at the hearing.

Consequences of termination

The satisfaction of the claim by the judge entails a number of legal consequences that must be taken into account before starting to file the petition. The list of such consequences includes:

the agreement ceases to be valid the next day after the court decision enters into legal force, and along with it the parties are deprived of their obligations to fulfill the terms of the agreement;
all one-time conditions that were specified in the document must be fulfilled (for example, transfer of real estate as a gift to children);
From the moment the contract is canceled, alimony obligations cease.

Deprivation of a child's financial support by both parents is unacceptable, therefore, simultaneously with the issues of termination of the contract, the conditions for further alimony payments must be accepted. This can be done in one of the following ways:

sign a new document with changed terms, having it notarized;
go to court to obtain a writ of execution, on the basis of which money will subsequently be collected in favor of the children.

Arbitrage practice

In cases where the alimony agreement is not drawn up in writing or notarized, the court makes a decision to refuse the claim and terminate the agreement. It does not comply with the rules of family law and is not considered a prisoner.

In other cases, judicial practice does not demonstrate a uniform approach to resolving disputes. Claims are satisfied both those filed by the payer and the claimant.

Example 1. Plaintiff N. filed a lawsuit to terminate the agreement on the payment of alimony with her ex-husband A., indicating that A. refused to increase the transferred alimony, thereby violating the rights of the child. In this regard, A. asks to collect alimony from him in the amount of ¼ of all types of earnings. And terminate the alimony agreement.

In court, it turned out that the defendant, according to the agreement, paid alimony in the amount of 8,500 rubles, and according to the stated request, he will pay no more than 4-5 thousand rubles. In view of the emerging circumstances, the plaintiff withdrew her claim and the case was dismissed.

Example 2. Plaintiff K. filed a lawsuit against N. to change the terms of the agreement on alimony in terms of increasing its amount from 5,000 rubles to 10,000 rubles. In support of her demands, K. indicated that at the time of the conclusion of the agreement, N. was employed and had a small income. Currently he works as an individual entrepreneur and has several retail outlets and non-residential premises. His declared income exceeds 1 million rubles per year.

These arguments were confirmed at the hearing and the court amended the agreement, increasing the amount of alimony to be collected.

The courts do not always take the side of the claimant, but they have even less leniency towards payers. There are very few reasons why courts at all levels reduce the amount of alimony or terminate the agreement at the request of the payer. We were unable to find such cases in the public domain. Only indirect references to such matters.

Invalidity of the agreement

If the judge decides to terminate the contract, then its effect terminates when the judge’s decision enters into legal force. But, when a court ruling states that the contract is declared invalid, then all transactions performed on its basis are also subject to cancellation.

Attention! The amount of transferred alimony is not returned to the alimony payer, but related transactions (for example, donating property to children) are subject to cancellation.

Thus, the main reasons for the invalidity of an order include:

confirmation that at the time of registration of the application one of the participants was incompetent (temporary incapacity implies alcohol, drug or psychotropic intoxication);
participation in the transaction is involuntary, that is, coercion or threats were used against one of the parents;
violation of the form of the contract or the procedure for its preparation.

Cancellation of transactions carried out on the basis of a contract is carried out only at the request of at least one of the parties. The parties to the agreement may leave the terms the same.