Court order for the collection of alimony 2020

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Mikhail Demidov (Lawyer)

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When considering an application for maintenance in a magistrate's court, the defendant is not notified of the process. Therefore, the information may come as a surprise. Let's consider how to challenge a court order for alimony if a citizen does not agree with the purpose of the payment.

What is a child support order?

A court order for alimony is a single decision made by the court to assign funds in favor of a minor child, which does not require a hearing and is at the same time an executive document.

It is necessary to remember certain nuances of this method of collecting alimony:

In this case, alimony can be assigned only as a share of the defendant’s income and excludes the assignment of funds in a fixed sum of money, which means that the payer must have a stable monthly income in the form of official wages, pensions, etc. It becomes clear that when assigning for alimony, say, it will not be possible to collect payments from an unemployed or unofficially employed person in this way due to the impossibility of establishing shared withholding.
The applicant must provide the court with the maximum information known to him about the future payer (full name, exact address of location or residence, place of work, contacts).
If the assignment of funds for the maintenance of a minor is associated with the parallel establishment or contestation of paternity, the application should be made only in the manner of claim proceedings (Article 122 of the Code of Civil Procedure of the Russian Federation).
The future alimony payer should not have other alimony obligations : for the maintenance of children, parents, etc.
If the court receives objections from the defendant within ten days, the court order is canceled without clarifying the reason in accordance with Art. 129 of the Code of Civil Procedure of the Russian Federation, despite the unconditional right of the child to receive maintenance from the parent. If such a document is canceled, the court explains to the failed claimant his further right to re-apply for alimony by filing a statement of claim in accordance with Art. 80 IC RF.

Sample court order for alimony (what it looks like)

Amount of alimony collected

The court decision on the specific amount of alimony will depend on:

Financial situation of the parties. Here it should be noted that this measure of obligations to the ex-wife cannot be acceptable if the defendant himself is unable to work or in need;
Marital status of the spouses;
I am also glad to see other conditions and proposals made by the parties.

Judicial practice suggests that the court relies both on the established minimum subsistence level in a particular region of residence, and on the amount of expenses incurred by the mother, provided that such expenses are mandatory. For example, purchasing overly expensive food products, going to spa centers or buying a car will not be taken into account.

How to get a court order

In order to receive a writ of execution, which is a court order, you must apply to the magistrate's court in the following order:

Write a statement in accordance with Art. 122-127 of the Code of Civil Procedure of the Russian Federation on the issuance of a writ of execution (court order).
Send the application to the magistrate's court of alternative jurisdiction (i.e. at the place of residence of the applicant or defendant) by transferring it to:
by registered mail.
Wait for the court order to be issued:
or about objections received from the defendant (in this case, the order is considered not issued, and the applicant will have to re-apply to the court with the same demand, but this time in the manner of litigation ).

The step-by-step preparation of an application for the issuance of a court order is regulated by Art. 124 Code of Civil Procedure of the Russian Federation:

The address part indicates:
information about the claimant-applicant (full name, place of residence (location), contact telephone number);
similar information about the defendant.
Title: “Application for a court order imposing alimony for a minor child(ren).”
The main part states:
requirements of the application (appointment of alimony in shares of the official income of the defendant in accordance with Article 81 of the RF IC).
List of attached documents:
a copy of the child/children's birth certificate;
a copy of the defendant’s passport (if available);
documents confirming the defendant’s income (if available, for example, a certificate from the place of employment).
Applicant's signature and date of application.

When drawing up an application for a court order, one should rely on the family and civil procedural legislation of the Russian Federation, since the child’s right to alimony is regulated by the Family Code, and the ability to assign these payments by obtaining a court order is regulated by the Civil Procedure Code of the Russian Federation.

Sample application for the issuance of a court order for the collection of alimony

A sample application for a court order for alimony can be downloaded from the link.

To the Magistrate's Court of the Fokinsky District of Bryansk , Bryansk, st. Peschanaya, 33
Claimant: Semenova Liliya Sergeevna Bryansk, st. Leninskaya, 14-66, tel. xx-xx-xx
Debtor: Semenov Mikhail Dmitrievich Moscow, st. Mosaltseva, 167, apt. 11, tel. xx-xx-xx
Application for a court order to collect alimony
From the marriage with the defendant Semenov M.D., dissolved on March 12, 2017, there is a common minor son, Semenov Dmitry Mikhailovich, born on February 12, 2004.
After the divorce, family relations with the debtor also ceased, he stopped communicating with the child, participating in his life, development and material maintenance, and moved to a permanent place of residence in Moscow. My son, by our mutual agreement, lives with me in Bryansk and is completely dependent on me.
Debtor M.D. Semenov refuses my regular requests to help his child, despite the fact that parents are equally obligated to participate in the life and maintenance of their children.
Based on Art. 81 of the Family Code of the Russian Federation, in the absence of an agreement on the payment of alimony concluded by mutual consent, payments can be recovered by force by going to court. In accordance with Art. 81 of the RF IC, alimony is collected in shares of the defendant’s income in the amount of 1/4 of the support for one child.
Based on Art. 122 of the Code of Civil Procedure of the Russian Federation, a maintenance claim, if it is not related to the establishment (challenging) of paternity, can be submitted to the magistrate’s court in an alternative jurisdiction by issuing an appropriate court order.
Considering the fact that the debtor refused to conclude a notarial alimony agreement, does not take voluntary material participation in the life of his son, has no alimony obligations in relation to other children, has a stable income in the form of wages at the company Ptichnik LLC, on the basis of Art. 80, 81 RF IC, art. 122-124 Code of Civil Procedure of the Russian Federation
I ASK THE COURT:
Issue a court order to collect alimony from the debtor Mikhail Dmitrievich Semenov, born in 1976, in favor of his minor son, Dmitry Mikhailovich Semenov, born in 2004, in the amount of 1/4 of the debtor’s total income subject to the alimony burden.
In accordance with clause 2, clause 15, part 1, art. 333.36 of the Tax Code of the Russian Federation, the plaintiff is exempt from paying state duty.
I am attaching a list of documents to the application:
A copy of the applicant's passport.
A copy of the divorce certificate.
A copy of the child's birth certificate.
Certificate of family composition.
01/20/2020 _____________/signature/

State duty when filing an application for a court order

Plaintiffs (or applicants) in claims for the recovery of alimony in favor of minor children are exempt from paying state fees.

It does not matter in what way payments are collected: through an application for a court order or through a lawsuit. You must refer to Part 1 of Art. 333.36 of the Tax Code of the Russian Federation, namely:

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clause 2, stipulating that alimony plaintiffs who defend the material rights of a minor have a benefit, that is, they are exempt from paying state fees;
clause 15, stipulating that the right to a tax benefit applies when submitting any application in defense of the rights and legitimate interests of a minor.

When considering a case, the state fee is collected from the defendant in the amount of 50% of the rate established for statements of claim (i.e., in the amount of 150 rubles) - Part 2 of Art. 123 Code of Civil Procedure of the Russian Federation.

Options for collecting funds

Requirements for alimony for a wife are possible in two versions: subject to the preservation of the marriage and after its dissolution.

In what cases can a mother demand alimony for her maintenance without divorce?

First of all, you need to comply with a number of certain conditions necessary for a satisfactory decision by the court, such as:

The presence of an officially concluded marriage with the defendant;
The presence of a common child if he was born in marriage and the official father is the payer;
Also, the mother can exercise her right to alimony for her maintenance in cases where she herself does not work for a good reason. Such a reason could be pregnancy or guardianship over a common child under three years of age;
If the wife is officially unable to work due to physical abnormalities, chronic diseases or disability;
If the child being cared for by a woman has a disability group, the mother has the right to demand payment of a monetary allowance for her maintenance until the child completes his or her life. At the same time, if a common child is recognized as a disabled child of the first group, then the mother taking care of him can receive a lifetime allowance from her husband.

Note! If a disabled child is in appropriate institutions where he is properly cared for by outsiders, the mother does not have the right to make demands for alimony for her maintenance.

After divorce

In many ways, the requirements and conditions under which an ex-wife can demand alimony for personal maintenance from her ex-husband are similar to the conditions stipulated in the Family Code in relation to married spouses. Except in certain circumstances:

The plaintiff, as before, can demand monetary benefits if she is pregnant or is caring for a common child, but if the pregnancy occurred during marriage and the birth took place no later than 300 days after the divorce;
If the mother is unable to work and is recognized as needy. At the same time, such a condition had to occur before the day of divorce or no later than one year after it;
It is important to prove the paternity of the defendant, otherwise the claim will not be satisfied.

Attention! We should not forget about the possibility of resolving the issue without judicial intervention on a voluntary basis through negotiations, which may result in the conclusion of an appropriate agreement.

What to do with a court order for alimony?

If no objections are received from the defendant to the court order, and this document has not been canceled by the court, the judge sends the claimant a copy of the order for subsequent presentation for execution - that is, to the territorial department of the Federal Bailiff Service (Office of the Federal Bailiff Service) at the location of the defendant.

However, Art. 130 of the Code of Civil Procedure of the Russian Federation does not exclude the option that the claimant has the right to submit a petition to the judge for the court to send a court order to the department of the Federal Bailiff Service for its execution (including in the form of an electronic document). If the office of the Federal Bailiff Service is located remotely (for example, in another city), and there is a risk of losing the document when sending it by mail, sending a writ of execution by the court will be much more reliable.

Application for sending a court order to the bailiff service

In the magistrate's court of the Bezhitsky district of Bryansk , Bryansk, st. Molodoy Gvardiya, 41
Yurasova Olga Leonidovna Bryansk, st. Molodezhnaya, 71/1, apt. 90, tel. xx-xx-xx
Petition
01/13/2020 Justice of the peace of judicial district No. 4 of the Bezhitsky judicial district of Bryansk, Yu.V. Gennadievna was issued a court order to collect alimony from the debtor Andrey Vladimirovich Yurasov in the amount of 1/4 of the income in favor of her minor daughter, Agata Andreevna Yurasova, born on May 31, 2010.
Based on Art. 130 of the Code of Civil Procedure of the Russian Federation, I ask the court to independently send the writ of execution to the place of its subsequent execution, namely to the territorial department of the Federal Bailiff Service of the Southern District of Moscow at the address: Moscow, st. Malo-Zavalskaya, 189/4.
01/24/2020 _____________/signature/

The procedure for collecting alimony by court order

When the applicant receives a court order on his own , the rules of his actions are as follows:

It is necessary to contact the territorial office of the Federal Bailiff Service at the location of the future payer on the reception day
Present the following documents to the bailiff of the alimony group:
passport (for identification of the claimant, since third uninterested parties do not have the right of access to the enforcement process);
a copy of the child's birth certificate;
all known information about the debtor (contacts of him and his relatives, address, place of work, position);
details of the recipient's bank account (card) for subsequent transfer of alimony.

After checking the documents, the bailiff will ask you to write a statement and within three days will initiate alimony enforcement proceedings in accordance with Art. 30 of Federal Law No. 229-FZ “On Enforcement Proceedings” dated October 2, 2007.

A court order for the collection of alimony is valid and can be presented for execution before the child reaches the age of majority , as well as within the three-year period preceding the presentation of this document for collection (Article 113 of the RF IC).

Briefly about alimony

Quite often, men do not want to take part in providing for the family, namely financially. In the event of a divorce, it will be simply unrealistic to wait for help from such a spouse. In the life of every couple, an event such as the birth of a child occurs, so the woman is forced to be on maternity leave.

For this good reason, she cannot work, and the amount of child benefits is very modest. This money is only enough for diapers and powder. In this case, some husbands do not want to take part in supporting their wife and child, so they have to somehow get out of a difficult situation.

Is it possible to cancel a child support order?

Article 129 of the Code of Civil Procedure of the Russian Federation provides for the indisputable right of the debtor to cancel a court order, moreover, without giving a reason .

You can do this as follows:

according to Art. 128 of the Code of Civil Procedure of the Russian Federation, after issuing a court order, the court is obliged to send to the debtor-defendant a copy of the document on the collection of alimony from him in proportion to income;
after receiving a copy of the document, the defendant, if he disagrees with it, has the right to submit to the court within ten days an objection regarding its subsequent execution;
if the 10-day period for appeal is missed for a good reason, it is possible to draw up a petition to restore the missed period for appeal (Article 112 of the Code of Civil Procedure of the Russian Federation) together with an objection to the execution of the order;
Based on the defendant’s objection, the court order is canceled by the court without clarifying the motive of the defendant’s action, of which the parties are notified additionally, and the claimant is also sent an explanation for re-applying to the court with an application for payment of alimony already in the procedure of claim proceedings.

Receiving an order

The law sets a period of 10 days for giving an order legal force. During this period, the payer must file an objection if he does not agree with the document. The important point is to receive the envelope from the court.

After the judge makes a decision, the clerk issues the court order. He generates a registered letter with notification and sends it to the payer.

Important! The deadline begins from the moment the envelope is received.

The recipient must sign the notice. In the event of a deliberate refusal to sign, the document will still be submitted for execution, but it will be more difficult to challenge it.

A common situation is when a third party (neighbor, relative) receives an envelope. In such a situation, a citizen can find out about the collection of funds only after the bailiffs begin to withhold the funds.

Since maintenance is withheld from the moment the application is submitted, and the debt can be withheld in the amount of up to 70% of wages, the surprise for the alimony provider will be unpleasant.

Therefore, it is advisable to receive the order in a timely manner. In case of disagreement, you can submit an objection.

Purpose

The essence of the order of collection is that it is significantly accelerated and simplified.

The issuance of an order is possible in cases where there is no dispute about the right, for example, the demand is based on a written agreement or the collection of other obvious circumstances.

The order is made without summoning the parties. After filing an application for a court order, the document will be issued by a magistrate within a period not exceeding ten days. After this, the debtor is notified of the order and has the right to appeal it within ten days from the date of receipt.

The purpose of writ proceedings is to relieve the burden on the courts thanks to a faster and simpler option for resolving disputes. The debtor is not a disadvantaged party; he can always appeal the order, but in most cases this is not done, since the requirement is most often obvious and cannot be canceled or contested.

How to challenge child support

The procedure for challenging alimony payments depends on the basis on which they are made. The determination of the amount of payments is preceded by a court proceeding, the conclusion of a written agreement between the parents, or the initiative of the parent raising the child.

Challenging alimony depending on the basis for its assignment

Payment of alimony payments is carried out on the basis of one of the documents:

a jointly drawn up agreement certified by a notary;
court decisions;
court order.

The agreement specifies the amount of assessments, the procedure for their payment, and one of the points concerns the procedure for canceling the concluded agreement and the conditions under which it can be changed. If circumstances interfere with the implementation of the agreement, you can challenge the document in court by filing an appropriate statement of claim.

The decision is appealed to the court of appeal or cassation.

It is much easier to challenge a court order. To do this, you must file an objection in court.

Applying for alimony at the debtor’s place of work

If the parent paying alimony works officially and does not object to paying maintenance for the child, you do not have to contact the FSSP, but immediately submit such an order to his employer organization.
This will save you some time and money for the other parent, since he will not have to pay an enforcement fee. The accounting department is obliged to accept such an act for execution on the basis of an arbitrary application from the claimant. In this case, the required amount will be deducted monthly from the debtor’s earnings and sent to the specified details. Twice a month, simultaneously with the payment of salaries in the organization. If the debtor quits, the documents will be returned to you and you will still have to contact the FSSP or your new place of work. comments powered by HyperComments

Features and timing of consideration of the issue

An application for the collection of alimony is considered in the general manner for thirty days, so the parties are required to come to court for a “conversation”, only after which a hearing date will be set.

This is what will allow the defendant and plaintiff to put forward their own position and arguments. Based on the results of the issue, the court issues a specific decision and a writ of execution.

It is also important to understand the nuance during which a woman can receive money from her husband. This often extends throughout pregnancy, as well as until the child reaches three years of age.

If there is an agreement, the father can pay money after three years.

How is the 10-day period for filing an objection calculated?

A court decision in a claim proceeding comes into force 30 days after the date of its issuance. There is no similar strict connection to the date of the order. The ten-day period starts from the date when the alimony payer receives the court order and signs for it.

After 10 days, if no objections are received, the order is transferred to the FSSP. Alimony is calculated from the date of the order. The state duty is also calculated from the alimony payer - this is the general norm for any “alimony” cases.

If the alimony payer avoids receiving correspondence, the court is guided by the provisions of the Civil Code of the Russian Federation. It says that if some significant postal item is sent to the citizen’s permanent residence address and received by the post office, the citizen is considered to have been properly notified.

If a citizen does not appear for the postal item, the post office will send it back to the court within the prescribed period. The 10-day countdown will begin from the date when the court receives back the order that the alimony payer did not receive. If the citizen received it, the countdown will begin from the day he signed for the package at the post office.

What documents will you need?

The documentation package is important, since the outcome of any legal proceeding depends on it. In addition, you cannot do without copies.

List of required documents, copies:

a housing and communal services certificate confirming the fact that the child is in the care of the applicant;
a copy of the statement of claim and a certificate of birth of a common child, divorce or marriage;
a certificate containing information about the husband’s salary;
arguments indicating that the applicant has no salary;
evidence confirming the defendant’s refusal to help financially.

In case of disability, it is necessary to present a corresponding medical report. In addition, such a certificate is taken from doctors if a woman is pregnant.

What to include in the statement of claim

You can file a claim at the place of residence of the plaintiff or defendant. It is important to note that the claim amount may be the total payment for the year.

The requirement to pay alimony will be legal if there are grounds noted in Article 89 of the Family Code, namely:

wife is pregnant;
caring for a child who is recognized as disabled;
a woman is on maternity leave to raise a child under three years old;
the wife has lost her ability to work, so she needs the help and support of her husband.

As you can see, the law provides for various grounds for filing a claim in the courts. The possibility of receiving alimony can only be determined if the following factors are present:

disability of wife or child;
pregnancy period;
caring for a three year old child.

The claim must indicate the reasons for receiving alimony payments and provide compelling arguments that the spouse is not helping and refuses to do so voluntarily.

The application is submitted in writing and follows a strict structure:

A header is drawn up where you need to enter information about the court, the defendant and the plaintiff.
The problem is succinctly and briefly described; it is important to refer to the circumstances that will force you to pay alimony.
Indicate the legal norms that regulate the current situation.
Clearly and competently describe all requirements.

In addition, the claim contains the date, signature and list of attached documentation.

And here is the concept and types of alimony obligations.

How is it different from the solution and what is better?

A court decision is made on the basis of a statement of claim filed by the plaintiff, that is, the party who puts forward some kind of demand against the defendant.

The judicial process is based on adversarial proceedings between the parties, but it also takes much longer and requires a more thorough approach.

The order procedure has a number of obvious advantages:

Shorter review times. The order is issued in ten days, while the claim proceedings can take months.
The parties are not called to consider the case.
Simple appeal procedure.
Smaller fee (twice compared to the claim). It is worth remembering that in matters of collecting alimony, the plaintiff is exempt from paying the fee.

If the order is refused or it is cancelled, then the applicant retains the right to file a claim in court. However, it will be necessary to attach to the statement of claim a copy of the resolution canceling the order (or refusing to issue it).

Missing the deadline for filing an objection

In practice, missing a deadline occurs quite often. Let’s repeat – 10 days is not much. The person may be away or in the hospital. Finally, it’s simply not possible to look at your mailbox every day – this is not uncommon nowadays, since few people subscribe to daily newspapers, and communication with family and friends occurs mainly through the telephone and computer.

Each case of missed deadline is considered by the court individually, in accordance with the requirements of Article No. 112 of the Code of Civil Procedure of the Russian Federation. If the court finds the reason for missing a valid reason, the term will be reinstated. To do this, you must submit an application to the court with two requests:

Reinstate a deadline missed for a valid reason
Cancel a court order due to the alimony payer’s objection

Let's look at a few examples of reasons for missing a deadline and its consequences.

Example 1

And I received the order in the mail, signed it and put the unopened envelope on the shelf in the hallway. Remembering it two weeks later, A read the order and decided to file an objection. The objection was not accepted because there were no valid reasons for the delay

Example 2

Returning from vacation, A found in his mailbox a notice of receipt of a document from the court, but when he arrived at the post office, he found out that it had already been sent back. He appealed to the court to restore the term, and the term was restored because. And he proved that at the time of receiving the order at the post office, he was not in the city.

Example 3

And he lived in a small village where the postman rarely came. One day, having brought the court order, he did not find A at home, and took the package back to the post office. Then he forgot about it, and the order was sent back to the court as not received. I only learned about it from the bailiffs. The court restored the deadline because A presented an explanatory letter from the postman, which confirmed that A did not avoid receiving correspondence, and the postal item was not received due to the fault of the postal workers.

Example 4

The postman personally delivered the court order to A's address, but since he was not at home, he handed over the package to his mother for signature. The mother gave the package to her son only two weeks later. The court restored the deadline, since transferring the order to another person is a valid reason for missing the deadline

Example 5

And he asked to restore the deadline by presenting a certificate according to which at the time the order was received by the post office, he was in the hospital, from where he left only a month later. The deadline was restored and the order was cancelled.

Example 6

A wrote in a statement to the court that he did not receive the order because the notice was not in his mailbox. However, postal employees documented that they twice issued a notice to receive a valuable letter and delivered it to address A. The court refused to restore the deadline.

So, valid reasons can be considered:

Illness, hospital stay, or on bed rest at home
The alimony payer is located outside the city or country
Incorrect operation of the post office
Transferring an order to another person
And some others that the court may recognize as valid depending on the circumstances

ATTENTION! If the reason that you yourself consider quite valid for missing a deadline is non-standard, or you do not know how to prove it, contact the Prav.io portal for advice.