Who pays child support if the husband is in prison?

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Angelika Senkina (Lawyer)

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Author: Angelika Senkina (Lawyer) (All articles by the author)

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Women must understand that if their ex-spouse is in prison, his obligation to pay alimony is not relieved The entire time a person is serving a prison sentence, he is obliged to provide financially for his child. Let's take a closer look at how and who pays child support if the father is in prison.

How to get alimony from a convicted person

The Family Code obliges every parent, regardless of his social status, health or life difficulties, to raise and support children until they reach adulthood. Loss of a job, illness, or imprisonment does not in any way relieve one from parental responsibilities. The prisoner is also obliged to pay funds for the maintenance of his children.

In correctional labor colonies and prisons, prisoners perform certain work and receive a salary. Usually it is small, but is paid consistently. Funds will be withheld from it. Thus, even if the husband is imprisoned, he pays alimony in the same way as he would pay it if he were free.

The basis for withholding may be one of the following documents:

• alimony agreement;
• performance list.

They have significant differences in design and content.

The necessary conditions

How to collect child support from a minor parent

The guardianship and trusteeship authorities have the right to recognize the new father as capable of becoming a participant in the court as a defendant, provided that he has an official income and is a physically healthy person.

The obligation to support children applies to all parents, regardless of their age. Lack of money and unwillingness to provide for a child does not cancel this condition.

You can force a person to pay alimony after he reaches the age of majority, of course, if his paternity is proven. This is due to the fact that in our country, civil liability comes into force only after a citizen reaches 18 years of age, becomes emancipated, or enters into an informal marriage relationship. As long as the father is considered procedurally incompetent, his parents, trustees or guardians will take part in court proceedings. At the same time, the court does not take their point of view regarding the establishment of paternal rights into account.

If the child’s mother was not married at the time of childbirth, and there is no information about the father (full name, place of registration and work, phone number, etc.), then all obligations to pay child support for the abandoned child rest solely with the mother. It is possible to hold a father accountable for providing for an abandoned child only after his identity has been established.

Alimony agreement

Such a document is drawn up if the parents have agreed among themselves that the father pays funds for the maintenance of the children. It indicates the amount of payments, their regularity and other conditions related to the provision of children and their upbringing. Such a document must be certified by a notary. But if the father is in prison, the head of the institution can certify the document.

This option is possible if the spouses are not divorced and while the father was free, there was no need for payments. If the husband was then convicted and is in prison, then during one of the meetings the spouses can, in front of witnesses, enter into a similar agreement that a monthly certain amount or percentage of the father’s salary will be transferred to the wife for the maintenance of the children.

After the document is signed by the parents and their signatures are certified by the head of the institution, the agreement is transferred to the accounting department, which will deduct from the prisoner’s salary in favor of his child. To eliminate possible errors and inaccuracies, you can invite a notary to sign the document, naturally, paying for his visit. In this case, you can be sure that everything will be completed correctly.

Payment amount

A prison is a state institution; accordingly, all prisoners are supported by the state. They don't have to pay for food or clothing. The money that criminals earn in prison is used for their own maintenance, and 25% is given to them personally. They can use this money as they see fit. If the person in prison is a man over 55 years old, then the amount given in hand increases to 50%. If a woman applies for alimony and the convicted person agrees to this, then the money will be calculated not from the remaining interest that is paid out, but from the total amount. Thus, the state protects the rights of children who have not reached the age of majority.

Using a clear example, the calculation of alimony from a man who must be in prison can be displayed as follows: The monthly income of a prisoner is 5,800 rubles. From this amount, income tax is charged in the amount of 13% - 754 rubles. According to the court's executive order, the prisoner must pay monthly alimony in a fixed amount of 2,000 rubles. From the remaining amount - 5,046 rubles - the amount of alimony of 2,000 rubles is deducted. 1,450 rubles are guaranteed to remain with the convicted person in accordance with the law.

For 2021, the salary is 7,500 rubles. Prisoners perform unskilled, low-paid work, for which the state cannot pay more. A woman must be prepared that the amount of penalties from a prisoner will be much lower than what she could receive if, as the child’s father, he is free. There are even a number of cases where the fixed amount that the court has approved for payment is much more than his salary. In this situation, part of the amount that the prisoner cannot pay will be recorded by the colony’s accounting department as a debt that the convict will have to pay after release.

It will be interesting to know that if the alimony holder has free property, he can sell it and pay alimony to his ex-wife using the proceeds from the sale. This option will suit both parties, because the convict will get rid of debt and the need to work in a colony, and the woman will receive the funds in full, and not partial collections from the prisoner’s salary.

Performance list

If the husband refuses to participate in the child’s life and support him, then the wife can go to court by writing a statement of claim to collect alimony from the child’s father. Attached to the application are copies of the mother's passport, the children's birth certificate and a certificate from the correctional institution stating that citizen so-and-so, who is the father of the child (or children), is serving a sentence there.

The court will review the documents and make a decision on the basis of which a writ of execution will be drawn up. It also determines the timing of payments and their size. Alimony can be assigned as a fixed amount, tied to the minimum wage in a given region, or as a percentage of income. The paper must be submitted to the accounting department at the place where the spouse is serving the sentence. This can be done through a bailiff, or better yet, on your own.

What can a father who goes to prison do?

Since the law does not allow you to evade the financial support of your child, it will be useful for a convicted parent to know that he can achieve a reduction in child support payments.

This can be done in only two ways:

1. If there is an alimony agreement, then it is necessary to conclude an agreement with the baby’s mother to reduce the alimony amount, supporting the arguments with clear argumentation.
2. If the agreement does not take place, then you need to go to court (this is the only way out of the situation if payments are made on the basis of a writ of execution).

When filing a lawsuit, you must present compelling arguments to the court. These arguments are:

• low level of earnings (or lack thereof);
• the need for expensive treatment;
• the need to constantly allocate money for compensation for damages in court, etc.

Note! The judge, having considered all the arguments, may consider them quite sufficient and satisfy the applicant’s claim. A judicial reduction of alimony payments eliminates the danger of accumulating large debts.

In the future, the claim may be revised due to changes in life circumstances (for example, the release of the father).

Holding order

If the father is in prison, the prison accounting department will withhold alimony from him according to a writ of execution submitted by the bailiff, or according to an agreement concluded between the parents in the presence of a notary or the head of the institution.

According to the Family and Criminal Executive Codes, alimony is paid from all types of income of the prisoner, including benefits and pensions.

Important! Of all the payments that are made in the accounting department, alimony is a priority. They are calculated immediately after income tax is withheld. Afterwards, payments are made on the remaining writs of execution or invoices. In addition, the law obliges the citizen to leave at least a quarter of his earnings after all mandatory deductions. Sometimes, in special cases, this minimum can be increased to 50%.

The transfer of funds for child support is made within three days after the accounting department calculates the salary.

Legal assistance

Collecting alimony from a convicted person is a rather complicated procedure. Given that cases are heard in court, legal knowledge is required. Despite the fact that in most cases the courts make positive decisions, there are also refusals to satisfy the demands of the child’s mother. For example, if the convicted person is in a difficult life situation, has limited ability to work, or needs treatment. Often, alimony payers deliberately avoid responsibility and try to reduce the amount of alimony. What to do?

The best way out of the situation is to contact a lawyer.
Knowing all the pitfalls of such procedures, the lawyer will not allow arbitrariness. Counseling may be required not only while serving a sentence, but also after leaving prison. As a rule, those released are in no hurry to pay their alimony arrears. This is a gross violation that must be stopped. Only a competent lawyer can help with this difficult procedure. Attention!

• Due to frequent changes in legislation, information sometimes becomes outdated faster than we can update it on the website.
• All cases are very individual and depend on many factors. Basic information does not guarantee a solution to your specific problems.

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Author of the article

Irina Garmash

Family law consultant.

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612

If the convicted person does not work

We found out that the prisoner, even from his small income, pays money to his children. However, sometimes convicts are not employed for various reasons. Many women have a question: who pays alimony if the husband is in prison and has no income? Is it possible to be exempt from payments in this case?

According to the law, in any case, an able-bodied citizen is obliged to support minor children. Even if it doesn't work for a while. During this period, his alimony debt is formed. It is calculated from the average wage in the region, since the father himself does not receive a salary at this moment.

Alimony from a convicted person, if he does not work, will begin to be withheld along with the debt as soon as he begins to earn money.

Additional child expenses other than child support

What else should you pay for your child besides child support?

• the father has three children in a new marriage, and his wife is pregnant;
• the amount of alimony paid by the father for a seriously ill child is only about 2,000 rubles per month;
• Due to the need to care for a sick minor child, the plaintiff cannot work.
• the amount of child support already paid by the second parent;
• the amount of payments established for a child from the state: pension, benefits, and so on;
• who provides care - a parent or a caregiver, for whose services you need to pay;
• financial and marital status of all parties to the process;
• the amount of planned or already incurred expenses;
• other important circumstances: serious illnesses arising in connection with disability, but not identified at the time of determining the amount of basic alimony.

If it is not possible to reach an agreement, the alimony claimant must apply to the magistrate’s court with a statement of claim , an example of which is given below:

Arbitrage practice

According to the decision of the Supreme Court of the Russian Federation No. GKPI09-389, adopted in May 2009, alimony payments from prisoners are calculated in the amount established by the alimony agreement. They are carried out in the first place from wages in full - deductions and deductions are not taken into account.

The accounting department of the institution where the prisoner is kept is required to work with the writ of execution. It is she who is responsible for ensuring that the conditions listed in the documentation are met - this is stated in Art. 109 RF IC .