Counterclaim for alimony in case of divorce: registration, sample

A counterclaim for alimony is a counter-legal action that arises on the part of the defendant during the consideration of a civil dispute as an option for filing claims. The content of such a statement must contain the demands of the defendant to the plaintiff. Its consideration may occur in parallel with the main claim drawn up by the plaintiff. Filing such an application when resolving issues of alimony is considered in jurisprudence to be one of the most effective methods of defense used in trials when claims are presented that are unfair from the defendant’s point of view. It is advisable to file a counterclaim before the litigation enters the active consideration stage. Moreover, according to the law, it is permissible to submit it at any stage of the trial, with the exception of the moment preceding the final decision.

Common cases when a response statement is drawn up:

after the divorce, the child’s mother filed for alimony, but the father wants to challenge paternity;
one of the spouses paying child support wants to reduce the amount, but the other party does not agree with this development of events;
the recipient of alimony applies for an increase in maintenance, but the payer is against it;
the mother files for child support, but the father wants to sue the children, etc.

Who can file a counterclaim

Typically, during a divorce, a spouse files two claims in court: for divorce and for alimony, if the parent with whom the child lives was unable to agree on voluntary financial support for the joint children. It is possible to combine both claims into one statement, but in this case the legal process will be long and complex.

Usually, during a divorce, two claims are filed: for divorce and for alimony.

The following issues may be considered in a claim for alimony:

the amount of payments or share of the defendant’s salary;
establishing the child’s place of residence;
determination of paternity;
procedure for communicating with minors.

It is clear that the plaintiff sets out his vision of what is happening. But the defendant may disagree with the requirements and file a counterclaim.

Legal basis

The rationale for this possibility is given in Art. 137 of the Civil Procedure Code of the Russian Federation. Requirements for the preparation and content of the paper are set out in Art. Art. 131, 132 Code of Civil Procedure.

To submit an application, the following conditions must be met:

The document in form and content complies with the instructions of the Code.
There is a direct connection between the original and counter claims.
The response application was filed before the decision on the first was made.

Reasons for filing

Let's look at the most common reasons for a counterclaim for alimony in a divorce:

If the mother has filed an application for maintenance of a minor, but the father wants to contest his paternity.
The paying parent wants to reduce the amount, but the child support recipient does not want to accept this decision.
The opposite situation is that the recipient of alimony wants to increase its amount, but the payer does not agree with this.
One parent files a claim for child support, and the second wants the child to live with him, accordingly, he demands custody and refuses child support.

In some cases, it is necessary to file a counterclaim for alimony during a divorce.

Is it possible not to file a counterclaim for alimony during a divorce? Yes, if the dispute can be resolved peacefully, and before the judge makes a decision. But in practice such cases are rare.

Reasons for recalculating the amount of alimony

After the divorce, if the spouses have children, the issue of the amount of alimony is acute. According to the law (clause 1 of Article 81 of the RF IC), the amount of financial support for a child is 1/4 of the payer’s earnings. There are often cases when the defendant:

Not officially employed - the court determines the amount of alimony equal to 1/4 of the average monthly salary in the Russian Federation. Data is taken from Rosstat.
Receives a “gray” salary, the share of which from real income is minimal. The amount of allowance for children will correspond to the official salary.

Recalculation of alimony, as a rule, is carried out upward - if the request is submitted by the recipient. Payers, on the contrary, strive to reduce the amount. But in all cases, there are two ways to change the amount of payments:

In peaceful way. Discussing the amount of alimony can lead to a mutual decision and amicable agreement. But it must be recorded by a notary so that both the payer and the recipient have documentary evidence of the legality of the reduction/increase in payments.
Claim for recalculation. It is served to the justices of the peace.

There are clear justifications for changing the amount of child support in court:

After the assignment of alimony obligations, the payer received a disability of group I or II due to injury or illness.
The payer’s child is 14-16 years old and already has some income that allows him to provide for himself and maintain the same standard of living as when receiving alimony.
The child is fully provided for by the state.
The payer has other alimony obligations or dependents.
The defendant has lost income or his salary has sharply decreased, and there are good reasons for this (simply losing a job without receiving official “unemployed” status at the Employment Center is not the case).

Questions about child support

Most often, legal proceedings regarding alimony begin with the ex-spouse filing a statement of claim. It may contain the following requirements:

establish the amount of alimony paid by the father: in shares, in accordance with Article 81 of the Family Code, or in a fixed sum of money ;
recalculate the amount of current payments: due to changed living conditions, the father’s transition to a new job or other factors;
determine the timing and frequency of payments: once a month (most often), quarterly, semi-annually, and so on;
additionally - to designate the minor’s place of residence, limit the ex-husband’s rights, and impose additional responsibilities on him.

In turn, a man defending his interests can demand within the same process, that is, in the format of a counterclaim:

Oblige the ex-wife to pay alimony to him. This makes sense if the child (or one of the children) lives on the father's property.
Reduce the amount of child support payments. In particular, if he moved to another job, lost his health or had new children. As a rule, in all these cases the court at least partially satisfies the man’s demands.
Relieve yourself of parental responsibilities. This is possible in two cases: if the submitter of the counterclaim proves that he is not a biological parent and did not know about it at the time of registration of the child; or if the ex-wife’s new husband wants to replace the child’s father in legal terms.

Statements of claim sent by both parties must be correctly drawn up and executed: otherwise, the court may refuse to consider.

How to prepare a document will be discussed in the next section.

Response claim for alimony

So, according to Article 137 of the Code of Civil Procedure of the Russian Federation, the second participant in the civil process has the right to draw up and file a counterclaim for alimony in a divorce. The court accepts such a statement if its satisfaction does not offset the demands of the original one, and there is a connection between both claims.

The second participant in the civil process has the right to draw up and file a counterclaim for alimony in case of divorce

Thus, a claim for maintenance of a disabled spouse will not be considered counter to an application for alimony for a minor. Money for a child cannot be spent on purposes unrelated to his needs. Therefore, the ex-wife will have to provide monetary support to her disabled husband from her own resources.

How to compose: design rules

The claim document must be drawn up according to the following rules:

only in writing;
in three or more copies - for the court and other participants in the process.

The counter statement states:

information about the court that will hear the issue;
information about the defendant and plaintiff;
factual justification for the claims of the defendant-plaintiff (violations committed by the recipient of alimony, evidence of the circumstances that arose for the counterclaim);
the amount of the claim and calculation of the disputed amount;
a list of put forward requirements and legal norms to confirm them.

Sample

There is no one-size-fits-all since there are differences in the requirements of each claim. But you can request a sample counter-statement from the court reception or from a family law lawyer.

Example of a response claim:

Counterclaim for alimony in divorce

What documents are attached to the application?

The list is as follows:

receipt of payment of state duty;
copies of the application for the judge and the plaintiff;
a copy of the child's birth certificate;
confirmation of the financial situation of the defendant-plaintiff;
documents on disability or extracts from medical history;
documented facts of changes in the marital status of the defendant-plaintiff.

As well as other documents related to the case, a power of attorney issued in the name of a lawyer or lawyer.

Basic information

A counterclaim is a claim on behalf of the defendant, against whom the plaintiff has already filed a lawsuit demanding the recovery of alimony payments. It is recommended to draw up and submit a counterclaim to the court immediately after the plaintiff has sent his first statement. When the statute of limitations for the case and the ruling on it has expired, the court will not accept the counterclaim.

How to file a counterclaim

You can file a counterclaim before the hearing on the original claim, or after a decision has been made on it. But lawyers recommend filing as soon as a person receives notice of the original claim.

Jurisdiction

The rules of jurisdiction do not apply to such a statement. Therefore, a counterclaim is filed in the same court where the original one was filed.

Trial

After filing a counterclaim, the court attaches it to the case. A process date is set. Both parties must be present in court at the specified hour. During the meeting, they express their position and provide evidence. After the meeting, the court makes a decision: to satisfy the demands of only one application, or, partially or completely, for both claims.

All controversial issues during a divorce are resolved in court

Expenses

If you do not use the help of a lawyer or lawyer, the costs are limited to paying the state fee. Its amount is 150 rubles - if the application concerns payments only for children. If the baby is not yet 3 years old or is disabled, payments are due to the child and mother, respectively, the fee increases to 300 rubles. When filing a claim for alimony, no state fee is paid.

If a person uses the services of a lawyer or lawyer, the costs are supplemented by payment for the services of a specialist - the amounts appear different here.

Calculation example

For one child, the defendant must pay 1/4 of the salary. For two children - 1/3, for three or more - 1/2.

In some cases, the amount of payments is a fixed amount, which the defendant pays at a time or in installments.

Government duty

Separately, it is worth dwelling on the amount of the duty. It is determined by Article 339.19, Part 1, paragraphs 1, 3 and 14 of the Tax Code, as well as Article 91, Part 1 of the Civil Procedure Code and amounts to:

if the amount of the claim is not assessed (only the issue of appointment is considered) - 150 rubles for a minor or 300 rubles for a mother and child;
if it is estimated (the issue of recalculation is being considered), it is calculated using the formula.

The latter is given in paragraph 14 of section 1 of article 339.19:

if the total benefit for any of the parties is up to 20 thousand rubles - 0.04 × S, where S is the annual benefit, minimum - 400 rubles;
up to 100 thousand - 0.03×S + 800 rubles;
up to 200 thousand - 0.02×S + 3200 rubles;
up to 1 million - 0.01×S + 5200 rubles;
more than 1 million - 0.005×S + 13,200 rubles, maximum - 60 thousand rubles.

Example 3 . Citizen A. brings a counterclaim against citizen B., demanding a reduction in the amount of alimony payments. If the court fully satisfies his demands, the benefit for the year will be 75 thousand rubles. In accordance with the above ratios, when submitting an application, a citizen will have to pay (0.03 × 75000 + 800), that is, 3050 rubles.

Examples from judicial practice

Example 1. During a divorce, citizen S. filed a claim for alimony in the established amount. The ex-husband, citizen P., filed a counterclaim. The essence of his application is to change the fixed amount of maintenance to payments on a percentage basis. Plus – transfer half of the funds to the mother, half to the child’s personal account. Citizen P. attached a tax return as justification. But it reflects low income and, accordingly, the inability to meet the child’s needs. Therefore, the court satisfied the mother’s demands (initial claim).

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Recommendations for filling out data in the form

Experienced lawyers give recommendations on how to correctly draw up an application:

It is extremely important to indicate the address of the defendant, otherwise the claim may be returned to the plaintiff. It is important to indicate, if possible, not only your passport details, but also the defendant’s. It is through them that the court will be able to find the defendant if he does not plan to attend the hearings. It is important to indicate the reason why the family broke up

If there are several, indicate them all. For example, that you haven’t been running a household together for a long time. It is important to enter all the necessary information about the children, including his birth certificate. Enter your bank account or card details. They can be handed to the defendant directly during the hearing. In this case, it will be more difficult for him to refuse to fulfill his duty to pay alimony.

Deadlines for filing a divorce

On average, the divorce process will require two to four court hearings (if one party is against the divorce). If the parties agree, a decision is usually made at the first meeting.

The minimum period for filing a divorce is a month and 11 days. If the decision came into force earlier than this period, it will be illegal.

The average time for registration when spouses agree to divorce is one and a half months and 1.5-3 months if someone does not agree, sometimes more than 3 months.

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Circumstances that affect the processing time:

norms of Family Law (divorce is carried out no earlier than a month from the filing of the claim);
norms of the Code of Civil Procedure of the Russian Federation (provide a period for appealing a court decision before it enters into force);
the workload of the court and the degree of efficiency of the mail, which notifies the parties;
complaints about the illegality of judicial actions (may increase the registration period by another 2 months);
correction of errors and clerical errors (increase the processing time by 1-3 weeks);
inaction of any party.