Appeal on alimony: to challenge a court decision

The legislation of the Russian Federation ensures the protection of the interests of every citizen of the country. Particular attention is paid to minor children, disabled people, and low-income people. An appeal against a magistrate’s decision to collect alimony allows for maximum protection of the interests of each category of persons if the first instance judge committed violations of the Civil Code or PC.

In 90% of cases, the procedure for challenging alimony begins with a disagreement between the parties regarding the amount of accrued funds, which raises the question of the legality of calculating alimony in general.

Grounds for filing an appeal

An appeal for alimony is drawn up by the direct participants in the process. If in 80% of cases a former spouse who wants to receive financial assistance for raising children appeals to the court of first instance, then child support is challenged in 70% of cases by men who do not agree with the award of alimony.

READ Statement of claim to establish paternity and collect alimony

The reason to overturn a court decision may be violations of substantive or procedural legal norms.

Material grounds for challenging include:

established alimony payments in cash, without taking into account the actual official income of the defendant;
unjustified reduction or increase in alimony.

For example, the plaintiff files an appeal to challenge a reduction in the amount of alimony because the judge did not take into account the defendant’s actual earnings.

Procedural grounds for filing an appeal:

the court did not take into account all the circumstances of the case that may influence the final decision;
the circumstances of the case are misinterpreted;
the evidence provided by the parties to the dispute is not supported by documents;
the court unlawfully applied or refused to apply the relevant rules of law;
procedural violations were discovered during the proceedings.

For example, a party filed a lawsuit demanding maintenance for one child in the amount of 25% of the defendant’s salary, based on Art. 81 IC RF. After the hearing of the case, the judge assigns payments in a specific amount, which contradicts the requirements of the statement of claim.

It is necessary to distinguish between child support and judicial collection for spousal maintenance. According to the Family Code, a wife has the right to sue her husband (even while married) and demand financial support in the following cases:

if a woman is on maternity leave, i.e. cares for a child under 3 years of age;
after the third month of pregnancy;
takes care of a disabled child.

READ How to draw up and submit an application for alimony during marriage

Each spouse can care for a disabled child and also be on maternity leave. If the husband is the caretaker, he has the right to challenge alimony from his wife (regardless of the status: married or divorced).

The necessary conditions

When the court considers alimony cases, the parties have different opportunities to challenge, depending on the procedure for resolving the dispute.

If the court has issued a court order based on the results of consideration of the relevant application of one of the child’s parents, then it must send it to the future alimony payer. After receiving the order, the payer has the right to appeal it within 10 days by writing and filing a written objection to alimony.

If, after the court order was issued, there were no objections from the party, the decision to withhold alimony came into force and began to be executed, then the defendant has the right to petition the court for an order to cancel the payments.

If the court of first instance considered a claim for alimony and made a decision on the case, then the parties have the right to file an appeal against it.

In most cases, alimony is challenged on appeal in two cases: in case of disagreement with the amount of established payments or with the very fact of their accrual.

The appellate authority may satisfy the applicant’s complaint in the following situations that occurred when making the initial decision:

incorrect definition of circumstances;
the circumstances and facts are not supported by evidence;
the judge’s conclusions are contrary to the factual circumstances of the dispute;
procedural rules of law were applied incorrectly or were violated;
the norms to be applied have not been applied;
the wrong rules of law were applied;
there was a misinterpretation of the law.

If the decision comes into force in the procedure of claim proceedings and alimony payments are accrued according to it, the defendant has the right to file his claim for cancellation.

What is the period for collecting alimony? The answer is presented in the article “Is there a statute of limitations for alimony?” You can find out how to search for alimony debtor here.

Deadlines for filing an appeal

Art. 320 of the Code of Civil Procedure of the Russian Federation provides for a 30-day period for filing a challenge for cases related to the payment of alimony arrears. To file a full appeal, the parties must receive a reasoned court decision.

READ Drawing up and filing a claim to reduce the amount of alimony

The law defines the following deadlines for the court of first instance to draw up a reasoned decision:

if the parties to the dispute were present in the hall when the result was announced - 3 days;
if the announcement took place without the presence of interested parties or their representatives - 15 days.

Cases regarding the payment of alimony can be dealt with either through a lawsuit or through an order.

A court order for the payment of alimony is accepted by the magistrate alone, the document comes into force within 10 days.

If the defendant does not agree with the court order, he must file an appropriate written objection to the consideration of the case by order. The judge alone cancels the order of collection and transfers the case to the status of a claim. Appoints an appropriate hearing on the fact of the statement of claim with a summons to the parties to the dispute.

Judicial practice shows that before filing an appeal, it is important to obtain a reasoned decision from the judge, which is issued only upon a written application from the interested party. The application is drawn up in any form and submitted to the office within 5 days after the effective part of the decision is read out in the courtroom.

Arbitrage practice

Practice shows that courts often do not take into account the real income of the alimony defendant.

Often the payer’s earnings are disproportionate to the amount of the recovery or even less than the charges established by the court in a fixed monetary amount, and not as a percentage.

In addition, the courts of first instance do not always take into account the presence of other dependents from among the payer’s relatives or children from another marriage. All this gives a real opportunity to count on a positive result when considering an appeal and assigning payments in a smaller amount.

Procedure for compilation

An appeal against a magistrate's decision to reduce alimony does not have a formally established template. The appeal can be written in your own hand or on letterhead. The content of the document must comply with the requirements of Art. 322 Code of Civil Procedure of the Russian Federation.

It is necessary to fill in the following information:

Details of the court of appeal.
Full name, registration address, place of residence of the applicant.
Number of the court decision that is subject to review, date of issue, name of the court.
Appeal requirements, grounds for review of a court decision.
List of attached documents, receipts.
Submission date, signature.

The complaint cannot include claims that were not considered in the magistrate's court.

For example, if the court of first instance was considering a case to collect a certain amount of alimony debt, the requirement to reduce or increase payments will be considered illegal.

Can alimony payer cancel a court order?

Maybe. Articles 128-129 of the Code of Civil Procedure of the Russian Federation give the debtor the right to file an application for cancellation. Moreover, the very fact of the presence of objections acts as a basis for cancellation of the document. The judge does not evaluate the debtor's arguments on the merits. The motivation will be useful to the parties in the future, when the dispute over alimony is considered in litigation proceedings.

Cancellation of a court order entails the following legal consequences for the child’s parents:

the withholding of alimony from the debtor is suspended;
the claimant acquires the opportunity to file a claim for consideration of the dispute on the merits.

However, previously transferred alimony in the event of cancellation of the decision is not returned to the debtor. An exception is when the claimant provides false information to the court. Then, to return the money, the debtor must formulate a claim against the second parent.

Citizen S. filed an application in the order of writ proceedings to withhold alimony from the salary of citizen D., who in fact is not the father of her child. Subsequently, the debtor achieved cancellation of the document. However, during the period the court order was in effect, the man paid his ex-wife 50,000 rubles. Now citizen D. has the right to challenge paternity and return the money.

Where to contact

An appeal for alimony is filed with the court that made the original decision. Copies of the document are sent to all interested parties, receipts for the transfer are attached to the package of documents.

There will be no violation of the law if you file a challenge directly to the appellate instance of the high court. In this case, the complaint is redirected to the court that made the decision, which formalizes the complaint, attaches all the case materials and sends the documents back.

The date of filing the document (regardless of which court the applicant sent the challenge to) must be within the 30-day period provided by law for filing a complaint.

The essence of alimony obligations

Obligations for alimony are property legal relations that are regulated by legal norms that arise on the basis of legal facts provided for by law, by virtue of which some family members have the right to demand, and others are obliged to provide them with maintenance. These include:

agreement of the parties;
court order;
the court's decision.

There are three groups of alimony obligations defined by the Family Code of the Russian Federation, which differ in subject composition.

What documents should I attach?

The following documents and receipts must be attached to the complaint:

A copy of the contested court decision (issued by the court).
Documents that can confirm the facts stated in the challenge (certificates of incapacity for work, wages for the last 3-6 months, registration at the labor exchange, etc.).
Copies: receipts for payment of state fees, postal receipts or receipts for the transfer of copies of documents to all participants in the process.

The payer's side has the right to provide the court with certificates about the state of health, actual income, and family members who are currently dependent on the defendant. As well as other documents that will help to comprehensively analyze the conflict and determine the amount that the defendant must pay for alimony.

You can waive the trial by drawing up an agreement on the mutual consent of the parties to pay alimony. The parties to the dispute personally agree on the amount of payments (monthly, weekly, quarterly) and draw up an agreement, which is secured by a notary.

The amount of payments the father or mother can fix depending on the agreement; the transfer of funds is carried out through postal transfers, directly at the meeting, through crediting to the child’s deposit account, etc.

How does a change in financial situation affect the amount of maintenance?

At any time, the payer has the right to apply to the court to reduce the amount of alimony if his financial situation has sharply worsened, or his living conditions have changed so much that he cannot afford to make payments in the same amount.

There must be sufficiently compelling reasons for this, among which are:

Acquisition of temporary or long-term permanent disability.
Layoff or downsizing at work.
Forced transfer to a position that pays lower.
Acquiring any degree of disability.
Registration for retirement.
The occurrence of additional expenses for a new family, for example the birth of a child.

In the case where alimony is assigned as a share of income, but it has increased many times and, therefore, payments for the child began to exceed his necessary needs, it is also possible to achieve a reduction in the amount of such payments.

During the consideration of the case, the judge may take into account the following important points:

Parity of all income of the payer against the income of the recipient. If the payer proves that his income is too low, the court will take this into account in any case. Otherwise, the payer may find himself in a situation where he is simply unable to pay the required amount.
The moral character of both sides. If suddenly the recipient abuses alcohol, the court may consider that the money does not go to support the child.
Behavior of opposite parties before the start of the process. For example, if the payer had previously avoided paying alimony, and at the same time had a suitable income, and now decided to cut the amount of payments, then the court most likely will not meet him halfway.
Existing obligations of the parties in relation to other persons. For example, the appearance of children in a new family as a payer.

Each argument of the parties is carefully considered by the court with the study of all available evidence.

Procedure and terms of consideration

An appeal against the collection of alimony is registered in the court office. After the procedure, the appellate judge has 2 months to objectively and comprehensively study the case materials. These 60 days include:

The district court makes a decision to transfer the appeal for consideration to a higher court - the first 14 days.
Scheduling a preliminary hearing at the appellate level and setting a trial date.
Hearing of the case on the merits.
Making a decision.

The decision of the appellate court comes into force from the moment it is announced. The decision can be overturned by filing a corresponding complaint with the court of cassation. The bailiff has the right to carry out all legal actions to collect alimony based on the decision of the appellate court.

The bank can challenge the alimony agreement if, by mutual decision of the parties, the debtor to the banking structure agrees to pay the spouse a large part of his actual income. This alimony agreement actually deprives other creditors of the right to collect the debt.

Judicial practice in these cases defines the banking structure as an interested party who can file an appeal in court, since the party has suffered from the alimony agreement.

Legislative norms

The basis for applying to the court for a review of a decision may be the provisions of the Civil Procedure Code of the Russian Federation (Articles 119, 228, 232, 321-322, 327, 333), which determine the reasons for the review, the deadline for filing a complaint, the amount of state duty paid, etc. . The norms of Art. 81, 83 of the RF IC, if the initial state of affairs regarding the financial condition of the parties has changed, and alimony awarded in cash violates the rights of a minor child.

When calculating the amounts of payments and the procedure for withholding them, as well as the possible failure to comply with a previously made court decision to collect alimony payments, one should also be guided by the norms of the Tax and Criminal Codes of the Russian Federation.

Objection to the appeal

An appeal filed by an interested party may have provisions that the opposite party to the dispute does not agree with. In this case, an objection to the appeal is filed, which is drawn up on the basis of a copy of the received complaint from the applicant.

The grounds for objection are:

the amount of the disputed alimony;
request to the appellate court to reduce/increase the amount of payments;
unreasonably high/low amount of debt for payments, etc.

There are no legal restrictions on the grounds for filing objections. In addition to material inconsistencies, the defendant can point out non-compliance with the law, the current financial situation, etc.

It is important to consider that the judge will only consider those objections that have legal evidence:

certificates of income, employment, financial situation, health status, etc.,
the presence of minor children or disabled people as dependents on the defendant;
if alimony is assigned to a minor child who has property that generates a stable income, etc.

A child support order is canceled unconditionally if the defendant objects to the order within 10 days.

How to compose

An objection to an alimony appeal can be filed immediately before the start of the trial or during the trial. Based on case law, it is better to file objections before the actual hearing of the case. In this case, the court will have enough time to study and verify the arguments.

READ How to correctly draft and file an objection to an appeal

Objections must be submitted in writing; the document must contain the following points:

Water part (cap). Information about the court that is involved in the appeal proceedings and the details of the parties to the process are entered.
Title of the document: in addition to “Objection”, the following terms have legal force: “Response to the appeal”, “Explanations to the complaint”.
Fable. The essence of the plaintiff's claims is described.
Detailed objections of the defendant to the plaintiff’s demands.
Requests to the court: reject/satisfy/partially satisfy the plaintiff’s demands.
Date, signature of the defendant.

All objections (review, explanation) are drawn up in two copies, one is sent to the court, the second to the plaintiff.

Grounds for canceling a court order for the collection of alimony

The legislator does not provide a list of reasons why the alimony payer has the right to seek the cancellation of a court order. The main motive for objections is the existence of a dispute about the law.

The debtor may need to cancel a document in the following cases:

Disagreement with the amount of amounts collected or the procedure for their payment. For example, the judge ruled that the father is obliged to pay ¼ of the child’s monthly income. However, the man does not have permanent employment, but relies on seasonal earnings or is registered with the employment service as unemployed.
Providing false information by the creditor. For example, the mother indicated in a statement to the court that the father does not participate in the life of the family. However, in fact, after a divorce, the man buys food, clothes, toys for the child, and pays for classes in the sports section.
Challenging paternity. The alimony payer subsequently intends to formulate a demand for a DNA examination.
Having other dependent minor children. For example, the debtor lives with a new family. Then the amount of child support for the first child can be reduced.
Serious illnesses, disabilities. These circumstances must be taken into account by the judge when determining the amount of the penalty.
Unreliability of the recipient of alimony. For example, the father intends to seek sole custody, since the mother does not take care of the children, does not have a permanent job, and drinks all her money on drink.

It is possible to formally file objections even if there are no real grounds. However, the debtor must take into account that subsequently he will have to prove his legal position in legal proceedings. If the judge comes to the conclusion that the defendant’s arguments are unfounded, he will again order the payment of alimony. In addition, the debtor, as the losing party, will have to pay a state fee.

Sample appeal for alimony

By law, a citizen is not required to file an appeal on the prescribed form. It is allowed to draw up a document on A4 format sheet with the obligatory completion of all columns and fields. In practice, it is difficult to draw up a legally competent document without a form.

An example form can be downloaded here. The form is current and meets the requirements.

An appeal for alimony allows you to ensure financial protection for children, disabled people and citizens of a separate category. A comprehensive review of the case also protects the defendant from unlawful claims by an interested party and ensures justice in family disputes.

Summary

Properly drawn up, containing a reasoned list of requirements and legal grounds for them, an appeal can be an effective way to change the decision of the magistrate on the assignment of alimony, its amount and method of collection. It is important to consult with qualified lawyers, follow the procedure and deadlines, and provide comprehensive evidence of the legality of your claims.

If all these conditions are met, a positive resolution of the issue in favor of the appellant can be a very real result.

Reasons for objection

Article No. 129 regulates the objection to a claim for the recovery of child support in a fixed amount.

To justify your disagreement with the reduction of the alimony amount, you must indicate significant reasons for this and document the circumstances of your disagreement. Reasons for objection include:

Difficult financial situation of the alimony provider . When the payer cannot pay the amount fixed by the court, then this amount is subject to revision. Both parties must be interested in this review, otherwise the recipient may be left without payments at all.
Poor performance on the part of the stepmother and stepfather of their duties. If they have been in the educational process for more than five years, then their stepdaughters and stepsons have the right to challenge their obligations to support their stepmother (stepfather) in court.
Disability of the second spouse. When it happens due to a marginal lifestyle, alcohol and drugs, as well as due to a short marriage (no more than five years, taking into account all the nuances of its dissolution).
Misconduct of a spouse seeking alimony.
Presence of minors in the debtor's new marriage.

It is the first and last items from the list of reasons that are used to justify alimony objections in a fixed amount or as a percentage of profit.

Conditions for the objection - the father must have valid reasons

The defendant has the legal right to challenge the alimony decision based on six facts:

In case of loss of ability to work. Loss of ability to work can happen for many reasons (for example, illness; or imprisonment).
In case of immoral behavior of the ex-wife, mother of a minor. This is the incorrect use of children's money, alcoholism and much more.
The father may have other children who are not taken into account by the court.
The person receiving alimony is fully supported by the state (for example, a nursing home, etc.).
Change in financial situation (for example, the payer lost his job).
Change in marital status and the birth of a new child.

The most important requirement: it is necessary that all reasons given to the court have official documentary evidence.