What to do if the bailiffs wrote off benefits and alimony? Instructions from Bankiros.ru

Most Russians have in one way or another encountered the work of bailiffs: some were debited for a forgotten fine, some had their car seized to pay off a loan, and some were unable to fly abroad due to unpaid utilities. However, not all actions of bailiffs can be called legal. In particular, creditors are strictly prohibited from debiting certain payments from the cards of Russians. What kind of money is it forbidden to touch, and what to do if the bailiffs write it off? We talk in detail in the material.

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To whom, from whom, and how much

To begin with, we will determine which categories of citizens and on what grounds can expect to receive alimony and from whom. These issues are regulated by Section V of the Family Code of the Russian Federation.

The first reason: blood relationship. The category of blood relatives includes:

• parents;
• children;
• brothers and sisters;
• grandparents;
• grandchildren.

Category two: family ties. This category includes:

• spouses (and in some cases ex-spouses);
• adopted children;
• adoptive parents are adults.

Alimony relations may arise between all these relatives. They are regulated by the same Family Code and protect the rights of both alimony recipients and alimony recipients.

But in order for rights to be protected, the relationship must be properly formalized. There are several ways to do this.

Firstly, you can enter into a voluntary alimony agreement. The contracting parties can conclude it in simple written form or even orally. You just have to remember that such an agreement will not have any force other than “the word of an honest merchant.”

This is a very common story: on the one hand, after some time the husband may “forget” about his promises to pay a certain amount for child support. On the other hand, the wife, who previously regularly received transfers from her ex-husband, may suddenly sue.

And then they claim that there were no payments or that there were, but much less than what was discussed. In this situation, all participants in the transaction are at risk.

Therefore, even if the issue is resolved amicably, it is necessary to register the agreement with a notary. In this case, the parties have certain guarantees against sudden amnesia of the other half.

If the alimony provider stops paying the agreed money, the alimony recipient can go with a notarized agreement to the bailiffs for forced collection.

And also to work for a defaulter, so that alimony is withheld from his salary. Neither the bailiffs nor the employer's accounting department have the right to refuse to accept such a document.

But before going to the notary’s office, the parties need to discuss various details of the agreement: from the dates of the transfers to their size.

For better preparation, of course, it is highly advisable to hire a specialist who will help plan everything. Moreover, it will be impossible to change the terms of such an agreement unilaterally later. For any adjustments, a new notarial agreement will need to be drawn up.

The second method of collecting alimony is forced. That is, through the court. One of the parties files a claim, the parties voice the terms, present evidence in their favor, and the court makes a decision. Harsh, but fair.

What are the consequences of alimony debt?

Payment of child support is the responsibility of parents, the implementation of which is monitored especially strictly . Protecting the rights of minors is one of the priorities of family law.

If the payer has an outstanding alimony debt that arose through his fault , the bailiffs can bring him to various measures of responsibility:

1. Blocking of a driver's license in the traffic police database for a debt of 10,000 rubles.
2. Ban on traveling abroad of the Russian Federation.
3. Executive search for the debtor.
4. Seizure of property and funds of the defaulter.
5. Bringing to administrative liability through:
   correctional or forced labor;
6. administrative arrest;
7. imposition of an administrative fine.
8. Bringing the debtor to criminal liability under Art. 157 of the Criminal Code - this measure is an extreme measure and is applied only in case of malicious evasion of child support.

As you can see, bailiffs have various levers of influence over debtors. However, family law also protects the interests of persons liable for alimony . In exceptional cases, alimony debt can not only be reduced, but also canceled (written off).

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Is it possible not to pay?

It is forbidden. Generally. This is a violation of the law, and the punishment for failure to pay alimony is up to imprisonment. However, after prison, the debts will still have to be paid off.

It is much more important for the state to force the debtor to pay money so that children or elderly parents receive the income they are entitled to. And not keep him in prison for a year, but then release him from all financial obligations.

But in some cases, it is still possible to write off your accumulated alimony debt. Article 114 of the Family Code establishes two methods, depending on which scheme (voluntary or judicial) payments are made.

When paying alimony by agreement of the parties, the parties have the right to change its terms themselves - up to and including complete cancellation. With the exception of cases of payment of alimony for minor children.

An agreement to change the amount or cancel the alimony debt is drawn up in writing and must contain:

• Information about the parties (including in whose favor alimony is paid);
• Details of the voluntary alimony agreement;
• Reasons why the debt cannot be repaid;
• The amount of debt that both parties agree to write off;
• Signatures of the parties.

If alimony was awarded by the court, only the court can cancel or reduce it. But this requires an extremely valid reason, and again, it will not be possible to completely get rid of child support.

Moreover, a new trial may have the opposite effect - the amount of alimony will be increased. This story happened last year with football player Dmitry Tarasov.

Here, too, you will need to draw up a statement of claim and prepare documentary evidence of your case. And for this it is better, of course, to hire a professional lawyer. The claim must be filed in the same court that made the decision on alimony.

Conclusion. You can pay alimony voluntarily - on the basis of an alimony agreement, or compulsorily - by a court decision. Failure to pay child support can lead to jail time. In this case, you will have to serve time, but the debt will still not go away.

Results

The deduction of alimony from wages can be voluntary or carried out by force of law (based on an agreement of the parties or with the involvement of bailiffs). Alimony should not exceed the maximum standards established by the Labor Code of the Russian Federation and legislation on enforcement proceedings.

You can learn more about calculating alimony in the following articles:

• “Withholding alimony under the simplified tax system “income minus expenses””;
• “How to correctly reflect alimony in 6-NDFL (nuances)?”

You can find more complete information on the topic in ConsultantPlus. Free trial access to the system for 2 days.

What circumstances are considered valid for writing off part of the alimony?

Sometimes the courts accommodate debtors and, given the difficult situation in which they find themselves, decide to write off part of the unpaid debt.

Here are the reasons that the court will consider valid:

• Serious illness of the payer;
• Serious deterioration in the financial situation of the payer that occurred through no fault of his (war, unrest, man-made or natural disaster);
• A change in the payer's marital status that makes payment of alimony impossible. For example, the emergence of new disabled dependents.

Let us dwell on these points in more detail.

A serious illness of an alimony debtor can be recognized as such damage to health, due to which the payer lost his job and is unable to find a new one. And he is now forced to live on a disability pension.

Deterioration of financial situation. If a person, along with his property, finds himself in the epicenter of military operations or natural disasters that destroy him (the property), then his debts will be written off.

Finally, when new disabled dependents appear: newborn children, young adopted children, disabled people or simply disabled relatives, the amount of alimony may be reduced.

But in this case, the payer must prove that after paying alimony (and the amount, according to the law, in case of forced collection can reach up to 70% of income), his new family will not have money left even for minimal needs.

But the most important thing: for debts to be written off, a combination of two circumstances is necessary - the lack of funds to pay them and the objective nature of the reasons that led to this absence. This requires evidence.

These include:

• Medical report on health status or disability status;
• Certificate of payment of unemployment benefits as proof of lack of work;
• Court verdict of imprisonment;
• Certificate of disability;
• Certificate of new marriage;
• Birth certificate of another child.

Depending on the situation, other official confirmation of your own personal or financial ill health will also be useful.

There are situations when child support can be written off

Firstly, if the payer proves that the child for whom he pays child support lives with him most of the time. In this situation, the court will most likely recalculate the amount of payments, reducing them proportionally.

Secondly, if the payer disputes his paternity. Moreover, simply filing a statement that he does not consider the child his own is not enough.

The payer must prove that he was misled by the child's mother. In these cases, the court may take the plaintiff’s side and release him from child support for someone else’s child.

The amount of alimony can be reduced or even the debt written off, but this is an exception to the rule

This can be done if you find yourself in a really difficult life situation. If alimony was paid by mutual consent of the parties, that is, by agreement, the parties can change the amount and payment rules. If the decision was made by the court, only it can make a new decision. But in any case, it will not be possible to disown payments for minors (your own) children.

Withholding of alimony from other sources of income

Let's consider special cases of withholding alimony from other income of the alimony obligee.

Alimony from the income of military personnel

Military personnel receive cash allowances instead of wages. The wording is different, but the essence is practically the same.

What is included in the allowance:

• salary according to position;
• salary according to rank;
• monthly constant payments.

Questions often arise regarding ration payments - some believe that alimony is not deducted from them. An explanation is given in the Resolution of the Armed Forces of the Russian Federation, which states that such compensation is systematic in nature, therefore, money for the maintenance of children must be deducted from them.

The general calculation procedure applies here: the accountant of the military unit, on the basis of the writ of execution, makes monthly deductions according to the details specified in the claimant’s application.

Alimony from income from individual entrepreneurs

It is problematic to establish the exact earnings of individual entrepreneurs, so they are usually assigned an obligation to pay alimony in a fixed amount. The tax system used is also important:

Lack of income as an individual entrepreneur is not grounds for termination of alimony obligations. In this case, the calculation will be based on the average salary in the country, even if the entrepreneur provides “zero” declarations for a long time.

Learn more about withholding alimony from an individual entrepreneur.

Alimony from foreign citizens

If a foreign citizen lives in the Russian Federation and is officially the father of the child, alimony is collected within the framework of Russian legislation.

When the payer lives abroad, the presence or absence of a legal agreement between countries matters. If it is not there, documents drawn up in the Russian Federation will not have legal force in another state.

The possibility of collecting payments for children from a foreigner is determined by the following regulations:

• Convention on Legal Assistance of January 22, 1993 (Minsk).
• Convention on Legal Assistance of October 7, 2002 (Chisinau).

Claims are made in two ways:

1. Conclusion of an alimony agreement.
2. Filing a lawsuit.

If the payer lives in another country and there is no agreement on legal assistance between the states, enforcement documents drawn up in the Russian Federation will be invalid for him.

If there is a legal agreement, alimony is assigned in a fixed amount.

Alimony from the sale of an apartment

When selling real estate, citizens are required to pay income tax unless there are grounds for exemption. However, such income is not subject to taxation, since what is happening here is not making a profit, but a change in the form of ownership.

The exception is real estate trading for the purpose of making money. Here the plaintiff will have to prove that the defendant is conducting economic activity, and the transactions are not one-time, but systematic. If the decision is positive, alimony will be withheld from the amount of earnings received.

Details about withholding alimony from the sale of an apartment

Will alimony be written off in bankruptcy?

Many citizens are sure that personal bankruptcy is a kind of indulgence. You went through the procedure, declared yourself bankrupt and you don’t have to worry anymore.

Old debts are written off - it's time to make new ones. However, there is a whole set of obligations that are not reset in bankruptcy. Among them are alimony payments.

But alimony can lead to bankruptcy.

According to Article 223.2 of the bankruptcy law, if we are talking about an out-of-court procedure (this is when debts do not exceed 500 thousand rubles and you need to apply for bankruptcy at the MFC), alimony must be included in the calculation of the obligations that the debtor indicates in his application.

That is, the amount that is subject to mandatory collection. But as mentioned above, bankruptcy will take place, and alimony debts will remain with the applicant. Therefore, it makes no sense to initiate this procedure in order to legally write off overdue alimony.

But if the amount of alimony debt is large enough, then other creditors may not get anything. The fact is that in case of judicial bankruptcy, alimony is compensated from the funds of the bankruptcy estate in the first place.

Creditors can, of course, try to challenge the payments, but it is unlikely that they will succeed. At the same time, if for some reason alimony does not fall into the bankruptcy estate, then its recipient will not lose anything except time. Sooner or later he will be paid alimony.

For violation of terms of payment of alimony, a penalty is charged. This is stated in Art. 115 of the Family Code of the Russian Federation. Since 2018, the amount of the penalty is 0.1% for each day of delay, but it can be higher if the parents agree on this.

Is alimony withheld from the advance payment and other nuances in enforcement proceedings?

An employer who is involved in enforcement proceedings related to the assignment of alimony must keep in mind that:

1. Deductions cannot be made, in particular:

• from daily allowances paid to the posted worker;
• from amounts to reimburse the employee’s business expenses;
• from child care benefits.

A complete list of income from which alimony cannot be withheld in court is given in Art. 101 of Law 229-FZ.

See also “Is alimony withheld from financial assistance?”

2. The question of whether alimony is withheld from the advance payment is within the full competence of the employer.

The main thing is that upon payment of the second (main) part of the salary, alimony is deducted in the established amount and subject to the restrictions determined by law. If alimony amounts to the maximum 70% of the salary, then when the salary is divided into 2 equal parts, one of them will go towards alimony in full, and another 20% will have to be taken from the other part of the salary.

2. Any alimony collected by the court must be the first in line among all payments by the employer - along with writs of execution to satisfy claims related to compensation for harm (clause 2 of Article 855 of the Civil Code of the Russian Federation). Only after making such payments are other deductions made from wages, for example, for unpaid advances.

3. If the alimony payer quits, then the company must report this (and the new place of work of the debtor, if it has such information) to the bailiff within 3 days after the occurrence of this event (clause 1 of Article 111 of the RF IC).

If this order is not followed, the bailiff has the right to apply sanctions to the company under Art. 17.14 of the Code of Administrative Offenses of the Russian Federation, or impose a fine under Art. 19.7 of the Code of Administrative Offenses of the Russian Federation in the amount of 300–500 rubles. (per official), 3000–5000 rubles. (for a legal entity).

Statement of claim for relief from debt payment: sample

It is necessary to file a claim for exemption from payment of arrears of alimony in the magistrate’s court at the place of residence of the defendant, that is, the recipient of the payments. The plaintiff must pay the state fee: according to the rules of clause 3, part 11, art. 333.19 of the Tax Code of the Russian Federation, it is 300 rubles.

Click on the picture to open the document in a new window

The following documents are attached to the application (in 3 copies) and a copy of the plaintiff’s identity document (passport):

1. A copy of the writ of execution (agreement) on the basis of which alimony is collected.
2. A copy of the resolution on debt settlement.
3. Copies of documents confirming the need to write off the debt: extracts from medical records, salary certificates, dismissal orders, acts indicating the loss of property by the debtor, and so on.

Documents are submitted in two copies : for the court and for the defendant.