How to get alimony if your ex-husband receives a gray salary?

In the current economic situation, many workers officially receive a minimum salary, and everything else is handed to them. The first type of income is not enough to collect the normal amount of payments for the child. Therefore, many parents are interested in the issue of collecting alimony from a gray salary. The rest of the article will discuss this procedure and the actions that the recipient of payments must take in this case.

Who benefits from a gray salary?

Before you start resolving the conflict, think about who actually benefits from a gray salary? After all, if it infringes on the rights of the payer himself, then perhaps you can come to an agreement with him and jointly change the situation for the better. So, paying alimony from a gray salary is beneficial:

1. To the employer for the purpose of: Reducing tax deductions;
2. Reducing monthly mandatory payments;
3. Reducing liability for transferring funds to the recipient.

Indeed, many Russian women, when they see the meager wages of their father, who is obligated to pay alimony, simply refuse to file a claim for the recovery of alimony. They believe that it is simply impossible to fight such a phenomenon as “salaries in an envelope.”

It is possible to achieve an increase in alimony from an ex-husband who receives “gray” earnings. The main thing is to correctly calculate the relationship between the minimum amount of alimony and the cost of living for the child, and also to collect evidence of the payer’s hidden income.

What it is?

Of course, the legislation does not use the terms “clean” and “dirty” wages - these are colloquial expressions.

“Dirty” salary is a concept that denotes an employee’s income without withholding taxes and mandatory payments, and “clean” means earnings received after all deductions, which is always an order of magnitude less than “dirty”.

In addition, the term “gray” salary is used, which is cash paid in addition to “white” earnings, without deducting taxes. It is also called earnings “in an envelope”.

Alimony from a gray salary: minimum amount

Often, claimants want to know how to achieve at least the minimum alimony payments for child support. Most often, the alimony minimum is based on the average salary of the parties’ region of residence.

Current data! On July 1, 2020, the minimum wage (minimum wage) in Russia will be increased to the amount of 7,800 rubles, below which no official salary can be set. This minimum applies throughout the country.

So, if a parent receives a mediocre salary or is not employed at all, then he will be obliged to pay alimony as a percentage of the “minimum wage”. The percentage of payment is established by the Family Code based on the number of minor children:

• One child – ¼ income or 25%;
• Two children – 1/3 or 33 – 35%;
• Three or more children – ½ or 50%.

The maximum possible percentage of alimony from income is 50%; in exceptional cases and only by court decision it can be increased to 70%.

Payment procedure

The procedure for calculating alimony from wages is approved at the legislative level. Part 1 of Article 99 of 229-FZ strictly states that all mandatory payments from the income of alimony payers are made only after all taxes have been withheld.

“Dirty” wages do not reflect the real money that the payer may have, and therefore cannot be the basis for calculating alimony.

In the first situation, we will consider how alimony is calculated from wages for “dirty” income; in the second, we will calculate payments from wages or patent income received by the alimony payer in hand.

1. The citizen received “dirty” wages in the amount of 15,000 rubles. He has one minor child, to whom he must pay alimony in the amount of 25% of the monthly remuneration received or other income, including patent income. If enforcement payments are calculated from the “dirty” amount of income, then the child will receive 3,750 rubles, personal income tax will be calculated in the amount of 1,463 rubles, and the payer himself will receive 9,787 rubles.
2. Let's calculate the amount of alimony not from the “dirty” salary, but from the amount of net income. The accountant initially charges personal income tax on 15,000 rubles, as required by law. The tax will be assessed and paid to the budget in the amount of 1950 rubles. A minor dependent will receive 3,262.50 rubles, and the citizen himself will receive 9,787.50 rubles.

Calculations clearly demonstrate that the amount of money that remains at the disposal of the alimony payer does not change depending on the procedure for calculating alimony from wages. When using a legally approved method, the amount of payments in favor of the child is insignificantly reduced, and personal income tax, on the contrary, increases.

The following payments are deducted from the calculated amount of alimony:

• survivor's pension assigned by the state;
• compensation payments for damages and injuries received while performing main work;
• compensation for damage from man-made disasters;
• compensation for caring for a disabled dependent (parents, spouses);
• listed humanitarian aid;
• income received from business trips;
• depreciation proceeds.

In other cases, alimony from wages is collected in full. Salary or tariff rate, all bonuses and incentive payments, vacation pay, professional bonuses, additional payments for working overtime, at night and on holidays are taken into account when calculating “dirty” wages or remuneration for work before taxes. After all mandatory deductions, alimony is collected from the debtor in accordance with the established procedure.

“Family Code of the Russian Federation” dated December 29, 1995 No. 223-FZ

Order of the Ministry of Labor of Russia No. 703n, Ministry of Finance of Russia No. 112n, Ministry of Education and Science of Russia No. 1294 dated November 29, 2013 “On approval of the clarification on the procedure for applying subparagraph “h” of paragraph 2 of the List of types of wages and other income from which alimony is withheld for minor children, approved Decree of the Government of the Russian Federation of July 18, 1996 N 841"

Federal Law “On Enforcement Proceedings” dated October 2, 2007 No. 229-FZ

How to prove that alimony from a gray salary does not cover the child’s expenses?

A similar situation often arises when establishing a percentage-share form of calculating alimony. In this case, the child’s account receives an amount less than the minimum subsistence level. The basic rules for collecting alimony in shared form and the minimum percentage of income for each child can be found in Article 81 of the Family Code of the Russian Federation.

Most often, claimants begin to suspect hidden income from the child’s father in the following situations, most typical for Russia:

• The amount of alimony has sharply decreased, turning into meager and almost “symbolic” payments;
• The alimony collector learned that the payer’s expenses do not correspond to his official earnings (travel, purchase of real estate, shares, repairs and other large expenses);
• The recipient of alimony received information from friends or other witnesses about the payer’s concealment of part of the income;
• The payer, having good qualifications and excellent higher education, reduces his monthly income by several times. This is especially noticeable if the person receiving alimony had a much higher official salary before alimony was assigned;
• The payer works full time for the “minimum wage”;
• The employer advertises the hiring of an employee for a position similar to the payer’s rate, but with higher wages;
• The payer is a financially responsible person or holds a leadership position, i.e. he a priori cannot receive the minimum wage.

Nuances of calculating alimony

When the writ of execution has already been received, the claimant knows the established amount of withholding.
It is assigned as a flat sum or as a percentage of income. White withholding means that the payer’s employer calculates alimony according to the writ of execution and sends it to its destination - from all taxable payments. The question of receiving alimony from unpaid wages worries those women who are assigned a share or percentage of income - after all, the fixed amount does not depend on accrued earnings.

It happens that the documents show an incomplete amount, but only a small part, the rest is paid in envelopes unofficially; or the person is not employed by the company at all. The income he receives is called black income.

Of course, alimony is not withheld from such payments. Therefore, the mother receives significantly less money to provide for the child than she should. What is her chance of getting full payment? Depends on the circumstances and perseverance of the woman herself.

Legislation

The obligation to pay alimony for minors is established by Art. 80 IC RF. If parents divorce or stop living together without registering this with the registry office, the one with whom the child remains has the right to claim money for his maintenance.

The specifics of assigning and calculating alimony are regulated by the RF IC:

Important! The specific amount of alimony is determined only by the magistrate's court, having studied the case materials. If the claimant does not agree with the decision, he can appeal it through the appeal or cassation procedure. The first is possible if the document has not entered into legal force and a detailed review is required, and a cassation is filed against an already valid decision containing procedural errors.

How to get alimony from a gray salary?

The obvious answer would be to contact the federal bailiff service or file a claim for forced collection of alimony in the magistrate's court. However, this is far from the most effective way to solve the problem, since government agencies will not be able to prove the existence of gray wages. They will calculate the percentage of alimony from income according to official documents on the profit received by the payer:

1. Certificate from the employer about the amount of wages (form 2-NDFL);
2. Extracts or other information from the Pension Fund of the Russian Federation with data on regular deductions from wages (only official income is taken into account when calculating contributions to compulsory pension insurance).

But you shouldn’t give up; in our country there are government organizations that provide assistance to alimony recipients in identifying the real wages of the payer. The list of these institutions includes:

1. Office of the Federal Tax Service

Their main goal is to replenish the state budget through taxes on citizens’ income, and therefore they are personally interested in identifying gray salaries.

1. Territorial body of state statistics

By contacting this institution, the alimony claimant will be able to receive an official document on which the average salary of the required professional industry in the region of residence of the payer will be calculated.

If you are sure that the payer receives a “salary in an envelope,” then you can immediately contact the tax office of your area of ​​​​residence. If at least two of the factors specified in the previous paragraph are present, the tax inspector will immediately accept your application.

Expert opinion

Marina Bespalaya

In 2011 she graduated from the University of Internal Affairs with a degree in jurisprudence. In 2013, master's degree course, specialty "law". In 2010-2011, a course at Portland State University (USA) at the Faculty of Criminal Law and Criminology. Since 2011 - practicing lawyer.

Ways to confirm the presence of gray income in order to increase the amount of alimony, contact the following authorities:

• The municipal statistics department, which will prepare a certificate of the average income of an employee for a specific position;
• The Federal Tax Service - the tax service will respond to the request and conduct an inspection of the enterprise where the citizen works.

In practice, there are possible signs of “gray” income:

• the payer holds a good position;
• the company is actively developing and advertises for new vacancies;
• Previously, the income at this company was significantly higher.

Arbitrage practice

As practice shows, the salary from which alimony is calculated often becomes a stumbling block in the legal relationship between the claimant and the payer.

Example. Citizen A. initiated legal proceedings for the collection of alimony against her ex-husband, citizen N. The defendant worked at an enterprise where his “dirty” wages were 20,000 rubles. The amount of the “net” salary after withholding personal income tax of 13% and insurance contributions was 16,000 rubles.

For the common minor child, ¼ of all types of earnings of the defendant was recovered, i.e. 4000 rubles. However, if the plaintiff had undertaken a deeper and more detailed check of her ex-husband’s income, and also compared his salary with Rosstat data on the average salary for specialists of his profile and level of training, she would have discovered a certain discrepancy. Citizen N. received part of the salary, namely 10,000 rubles If this fact is proven, the woman could bring the man to justice and collect from him the entire amount of the debt, calculated on the basis of Rosstat data.

Understanding the differences between “clean”, “dirty” and “gray” wages is required in many cases and proceedings involving the withholding of alimony. Don’t know how to correctly calculate the final amount of deductions, or what kind of income should be taken into account? Contact a lawyer from the website ros-nasledstvo.ru for a free consultation and get answers to all your questions.

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What could be the consequences of a tax audit?

As we mentioned at the beginning of the article, an audit by a tax inspector of the employer of the company can both help you resolve all problems, and add new ones due to the loss of work by the payer. In the latter case, alimony will be paid from unemployment benefits, i.e. may turn out to be even less than the current payment amount.

Do not forget, if child support payments cease to be received, the claimant has the right to appeal to the federal bailiff service or directly to the magistrate’s court. Our consultants will help you free of charge to draw up a correct application for recovery and collect the necessary package of documents.

In addition to the FSSP and the court, the claimant has the right to involve the following institutions in resolving the issue of alimony from gray wages:

1. Labor Safety Commission;
2. Management of the Federal Tax Service;
3. Child protection;
4. Court.

Role and functions of accounting

Making the final calculation and withholding deductions is the concern of accountants working at the same enterprise together with the alimony payer. In order for responsible employees to begin carrying out this procedure, the claimant will need (to choose from):

1. Directly send/transfer to the company a writ of execution or a court order for the collection of alimony.
2. Forward/transfer a writ of execution, a court order or a notarial settlement agreement to the bailiffs to initiate enforcement proceedings. Then representatives of the FSSP themselves will send a request to the company’s accounting department to regularly withhold funds.

For each act of transferring money from the alimony payer’s account to the claimant’s account, the accountant will need to fill out a special alimony payment order. Typically the following information is included here:

• bank details of the creditor and payer;
• the final amount of deductions;
• retention period (in “month and year” format);
• personal data of the payer;
• information about the document in accordance with which payments are collected;
• individual taxpayer number;
• amount of alimony debt (if any).

The transfer of funds to the claimant’s account must be carried out no later than 3 days after the salary is transferred to the alimony payer himself. Otherwise, the claimant will have the right to demand a penalty. That is why, when making a transfer, accountants usually mark the payment being made as “priority” - thanks to this mark, bank employees transfer money in the shortest possible time.

Liability for intentional understatement of the amount

Usually, the money that is paid for a minor child or for disabled children is assigned in the form of a percentage of the profit; the material security of the parties influences what percentage will be withheld.
In judicial practice, there are often situations when a person deliberately provides data only on white payments, hiding other income. In such a situation, the violator will be held accountable. For an intentional reduction in the amount of payments, civil, administrative and criminal liability is provided.

If it is determined that the person’s real income is significantly higher than previously declared, the recipient of payments for the child must contact law enforcement agencies. First, you need to file an appeal to collect the debt and penalties, as well as to establish fixed payments.

If the payer continues to hide his profit and refuse to provide financial assistance, an administrative case should be initiated. A persistent defaulter can be dealt with through a criminal court.

Almost every person in Russia received unofficial payment for their work. And some people are constantly being paid black money. It even happens that such profits are several times higher than the official ones. And how to act in such situations interests almost all creditors. It is possible to increase deductions due to unofficial earnings; to do this, you need to go to court with a request to establish a fixed type of alimony.