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Nothing in this world can exist forever. There will be no exception for feelings between a man and a woman, which often cool down and this leads to divorce and the raising of common children by one of the parents. As a rule, children remain with their mother, but due to various circumstances, there are cases where the father raises the child without the participation of the mother.
In accordance with Russian legislation, a working woman preparing for motherhood has the right to take prenatal and postnatal leave, and after it ends, care for the baby until the age of three.
Note: Not only the mother, but also other close relatives (father, one of the grandmothers, grandfather), or the person who actually replaced the blood parents (guardian, adoptive parent) can take care of a newborn child while on official leave to care for him.
Everything is wonderful when there is peace and harmony in the family, the husband brings home wages. But what should a woman do when she is unable to return to work, because there is no one to leave the baby with, and the family’s cup of well-being is broken.
Conditions for assigning child support for a child under three years of age
They are not particularly different from the conditions that are observed when assigning alimony for the maintenance of children of a different age.
If one parent does not live together with his child, does not take part in his upbringing, and does not spend money on his maintenance, he is obliged to pay alimony.
Whether they will be paid by mutual agreement of both parents, by court order or writ of execution is not important.
The basic rule: they must be paid monthly and in a set amount - in a fixed amount or as a share of the total income of the alimony payer.
Example of an objection to a statement of claim
I will give one illustrative example of how I ruined the plaintiff’s plans to collect alimony for the maintenance of her ex-wife.
Vadim Nikolaevich approached me with a request to draw up an objection to the statement of claim of his ex-wife.
That's it
After reading the statement of claim, I prepared this:
You're probably anxious to find out what the judge ruled? Then look further.
Conditions for assigning child support to the mother of a child under 3 years of age
Article 89 of the Family Code of the Russian Federation talks about the obligation of spouses to financially support each other. If one of the spouses has the opportunity, but refuses to provide this help to the needy - the second spouse, that is, for example, if the father does not pay alimony, the wife will be able to demand alimony from him in court. Important conditions must be met:
- the needy spouse must be disabled;
- this is a pregnant woman;
- this is a needy spouse raising a child under three years old;
- a spouse caring for a common disabled child of group 1 for life, or a disabled child of group 2-3, until he reaches the age of eighteen.
But the main condition is that the spouse (or former spouse) must be legal, and not civil.
Payment evasion options
Husbands are given the opportunity not to pay maintenance to a woman with a child under 3 years of age on the following legal grounds:
- if the marriage did not last more than one year;
- when the ability to work is lost due to the fault of the woman herself;
- if the divorce occurred due to the fault of the wife, for example, a riotous lifestyle. drunkenness, adultery;
- when the wife applies for payments, but her income exceeds the amount stated in the court proceedings;
- if the woman’s income exceeds the real income of her ex-spouse.
Note that although it is girls who are mentioned throughout the conversation, a man can also apply for alimony if he is looking after a child after a divorce. It's just that single mothers are more common in our society, and the courts are mostly busy and award payments specifically for them.
Child support for a child under three years of age and for his mother
Do you know that
If the ex-wife (mother of a common child) remarried, even if the court recognized her as needy and disabled, alimony payments are terminated. Thus, the ex-spouse is no longer required to pay to support his ex-wife.
We said above that alimony for a child under three years of age is no different from alimony for children of a different age or alimony for adopted children.
Also, the spouse who cares for such a child will be able to demand alimony. More often this is a mother who is on maternity leave. With all this, this parent must be in need, that is, due to the child’s young age, he does not have the opportunity to work and raise funds to support the child and himself.
It is no secret that it is difficult to raise a child on the allowance that our mothers on maternity leave receive. And even coupled with child support, this amount is not always enough to ensure that the child eats normally, is clothed and has shoes.
The issue of collection and amount of such alimony can be resolved by concluding a voluntary agreement with the second spouse. Or by filing a claim in court. It will also be necessary to prove to the court that the spouse caring for a child under three years of age actually needs additional support. The court will also examine the financial situation of the second spouse.
We must not forget that, according to Article 90 of the Family Code of the Russian Federation, the mother of a child under three years of age has the right to demand alimony for her own maintenance, subject to a difficult financial situation, but this obligation does not automatically arise for the father of the child. The wife will be able to collect alimony for herself after filing a corresponding demand.
Grounds for termination of alimony payments for the maintenance of a wife
The main basis for termination of obligations for this type of alimony is the disappearance of the grounds. For example, when paying a wife until the child’s 3rd birthday, alimony for her stops when she reaches this age.
It is also possible to stop paying for the maintenance of a wife by mutual consent (Part 1 of Article 114 of the RF IC). A decision to terminate payments in whole or in part can be made by the court if it is proven that alimony (or arrears thereof) cannot be repaid due to poor health or other valid reasons (Part 2 of Article 114 of the RF IC).
Amount of child support for a child under three years of age
It is calculated in the same way as the amount of child support for a child of a different age. And it can either be specified in a voluntary agreement concluded by the parents, or established by the court in fixed monetary terms or in a certain proportion of the total income of the person obligated to pay child support:
- up to 25% - for one child,
- up to 33.33% - for two children,
- up to 50% - for three or more children.
When setting the amount of the monthly payment, the court must examine the financial situation of both parents. It also takes into account the calculation of child support costs provided by the plaintiff.
Is it possible to collect a penalty?
If alimony is not paid on time, then the law provides for a penalty. The Family Code stipulates a penalty of half a percent for each day of delay.
We recommend! How to apply for alimony in a civil marriage - useful tips for the mother of a child born out of wedlock
You can also calculate the approximate amount of sanctions on our website online. A special alimony penalty calculator has been created for this purpose. The calculation results can be compiled into a separate document, printed and attached to the lawsuit.
However, before presenting it, you should take a certificate from the bailiff regarding the amount of the debt. It is advisable to order it by month. This will make it much easier to calculate the total amount of sanctions.
It is also necessary to remember about the existence of a statute of limitations in relation to the collection of penalties. It is 3 years after the child reaches three years of age. In addition, the former spouse has the right to reduce the amount of alimony, if there are grounds.
Amount of child support for the mother of a child up to three years old
The plaintiff - in our case, a mother raising a child under three years of age, will be able to indicate in his application the amount of alimony that he would like to receive for his maintenance. With all this, he must take into account that according to the law, no more than 50 percent of the amount paid for the maintenance of the child can be recovered from the second parent.
Example: if a father pays child support in the amount of 10,000 rubles monthly, then he will be required to pay no more than 5,000 rubles for the maintenance of his mother. This is due to the fact that, according to Russian family law, child support is the responsibility of both parents equally. Therefore, the costs for it should be divided equally.
This is precisely what is connected with the method of paying alimony to the wife in hard monetary terms and nothing else.
Child support guarantees
When parents separate, the child remains with one of them. The law assigns the responsibility to the father or mother under Art. 80 SK to support a joint offspring and raise him. One of the forms of material support is alimony, which is transferred in a fixed amount of money or as a percentage of a person’s salary. Read: Methods and procedures for paying child support
Alimony is transferred according to a settlement agreement, voluntarily. If there is no agreement between the legal representatives regarding the amount and procedure for payments, the court, by its decision, forces one of the parties to fulfill the legal obligation. Alimony is collected in marriage, during divorce, after an official separation: the period is not important, the main thing is the fulfillment of the obligation to support the child specified in the RF IC. The spouse also has the right to demand alimony. Article 90 of the RF IC establishes a list of situations when you can exercise your right.
Registration of alimony and necessary documents
Alimony for a child under three and his mother can be issued:
- notarized (when an agreement on the payment of alimony is concluded between the parents);
- under a court order for the payment of alimony;
- on a claim for alimony.
The main condition for an alimony agreement between former spouses is notarization. If this condition is not met, then there is a possibility that the agreement will be invalidated.
Documents required for registration of alimony for wife and child:
1) passport of the plaintiff,
2) the child’s birth certificate or
3) a certificate from the antenatal clinic indicating the duration of pregnancy,
4) certificate of marriage (if the marriage has not yet been dissolved),
5) certificate of divorce (if the marriage has already been dissolved) (read more in our article about filing a divorce if you have children),
6) certificate from the defendant’s place of residence,
7) information about the lack of income or low income of the child’s mother (certificate from the place of work about being on maternity leave, a certificate from social security about the amount of benefits, etc.).
All these documents, as well as their copies, are provided to a notary (when there is a voluntary agreement between the spouses), a magistrate in order to obtain a court order, or are attached to the statement of claim for the recovery of alimony.
Arbitrage practice
As life shows, a person who claims to receive alimony does not always have the right to it.
Citizen Nikiforova N.I. filed a claim against her ex-husband with a claim against her ex-husband for the maintenance of a child born on December 5, 2016 in the amount of 25% of wages and for her own maintenance in the amount of 10,000 rubles.
Despite the fact that, as evidence of child care, a certificate from the passport office about cohabitation and from the enterprise about the registration of parental leave until the age of three were provided, during the trial it was revealed:
- actually gr. Nikiforova N.I. left the child in the care of her mother and does not care about him;
- At the time of going to court, the mother of the child, living separately from the baby with her common-law husband, leads an immoral lifestyle, abusing alcohol.
The court satisfied the claims only in terms of withholding alimony for the maintenance of the child, recognizing the request to recover funds from N.I. Nikiforova herself. unreasonable.
In each case of wives’ demands for alimony for their maintenance, the court carefully examines all the arguments of both sides of the dispute.
Only children have the right to unconditional child support, regardless of the financial support of the second parent. In the case of collecting alimony for a wife, the court will have to figure out whether she needs alimony maintenance or not.
Collection procedure
If an agreement on the payment of alimony has been concluded between the parents, and it is certified by a notary, then you can immediately contact the bailiff service with it. This agreement is already binding, and alimony can be collected under it. If the agreement has not been notarized, you will need to additionally contact a notary to comply with the entire procedure.
If the plaintiff knows for sure where the defendant lives and works, he will be able to go to the magistrate’s court and write an application to obtain a court order for alimony. After considering this application, the magistrate will issue this order, in which he will determine the amount of alimony in accordance with family law. With this court order, you can already go to the bailiff service, which will collect alimony from the debtor.
If the second parent does not agree to fulfill his obligation to pay alimony for the maintenance of the child and his mother, the first parent has no choice but to draw up a statement of claim and submit it to the magistrate’s court to resolve the existing dispute. We talk about how and where to properly apply for alimony here - https://divorceinfo.ru/2349-kuda-kak-podat-zayavlenie-na-alimenty-posle-razvoda-suprugov
Also, only by filing a statement of claim in court will it be possible to resolve the issue of assigning alimony in a fixed amount. And both for the child and for his mother. But in the second case, the judge will additionally need to submit papers confirming the costs of maintaining a child under three years of age and his mother and prove the need to assign a specific amount of alimony.
After considering the claim, the judge decides to issue a writ of execution. Based on it, bailiffs will be able to begin work on collecting funds from the alimony payer.
Voluntary agreement or court?
The ex-spouse is definitely the baby’s natural father, and if the child is not even 3 years old, he is obliged to support both mother and baby with alimony . At the same time, he can try to agree with his wife on the amount of payments and draw up a voluntary agreement.
If an agreement does not work out, the father is not going to pay his ex-wife any money, then the mother can go to court .
In addition to the required set of documents, you will have to file a lawsuit with a detailed description of the costs for the child necessary for living for a month.
The amount of recovery from the father according to the law for the child
The amount of child support for one child is legally 25%, for 2 children - 33%, for 3 or more - 50% of the father's income. The calculation of the need for funds for the maintenance of a baby who is not yet three years old, submitted by the mother, will be studied and compared with the amount of mandatory alimony. A reasonable “golden mean” will be chosen.
The funds required to support the child are divided equally between the parents if the mother works . The amount of 50% of the money needed to support a 3-year-old child is paid by the father, and the remaining 50% falls on the mother, since she is also obliged to take an equal part in providing for the offspring.
If dad has:
- income is not constant,
- income that is not expressed in a specific amount per month ,
- or the father doesn’t work at all,
then he will be given a fixed amount to be paid. This amount is tied to the amount of deductions such as the cost of living or the minimum wage in the specific region of residence of the father and child.
Read about how to file a claim for alimony in this article.
The ex-wife will have to pay until the child is three years old
Alimony for a wife and a child who is not yet 3 years old is determined by the court based on the calculation of the need for funds specifically for the woman’s living expenses.
When compiling this paper, the mother must take into account the real need , because she is the one who knows better than others the financial condition of her husband and his capabilities.
If the amount seems unrealistic to the court, then alimony will be assigned at the discretion of the judges , who have examined the income of both of the couple. The amount of deductions is not constant ; it can be either increased or decreased if the income of the alimony payer changes sharply.
Application form for collection of alimony in a fixed amount:
Mother is not entitled to child support
There are several cases when a spouse who does not want to pay alimony for the maintenance of the mother of his child will be able to avoid this obligation:
- the marriage lasted a short time (less than a year, etc.),
- unworthy behavior of the spouse in marriage, which served as a reason for divorce (infidelity, drunkenness, etc.),
- the spouse became incapacitated due to her own fault (committing a crime, getting injured while drunk, etc.),
- it will be proven that the spouse is hiding the real amount of her income in order to receive alimony.
Cancellation of alimony for the maintenance of a spouse (former spouse) can be achieved at any time by proving that her financial situation has changed and improved in comparison with the income of the payer. There are also some situations in view of which the amount of alimony can be reduced - more on that on the page.
If you still have questions about how alimony is paid for the maintenance of a spouse until the child is 3 years old, then ask them in the comments
Form of claim for the recovery of alimony for the maintenance of a former spouse
Reasons for changing the amount of payments
The amount of alimony for a wife on maternity leave until the child is three years old and for a pregnant woman can be either reduced or increased. If this is a voluntary agreement on the payment of maintenance, then you can always add conditions to change the amount of payments in one direction or another. If alimony was awarded in court, then you should go to court to change its amount.
As a rule, the reasons for reducing or increasing the amount of alimony are changes in the marital or financial situation of the parties.
The judge may determine a reduction in the amount of alimony obligations under the following circumstances:
- the alimony holder’s salary or other income has decreased;
- he entered into a new marriage, where he had children;
- he was awarded alimony for other claims;
- he has been diagnosed with a serious illness or has been assigned disabled status;
- elderly parents are supported;
- the wife (current or former) has at her disposal property that is expensive and can generate income.
An increase in the amount of payments can be made if:
- the payer’s financial situation has improved with an increase in his income;
- the pregnant wife’s health has deteriorated and she needs medication;
- a child under 3 years of age has developed a serious illness and requires hospitalization or additional care.
The list of reasons given is not exhaustive. The court may consider other circumstances valid for assigning a reduced or increased amount of alimony. But it is necessary to present arguments in the form of written evidence or testimony.
If my husband doesn't pay, what should I do?
Most mothers ask the question: My husband does not pay alimony for my maintenance, what should I do? Where should I go?
In fact, there are several ways to force a debtor to fulfill his obligations to his ex-spouse. The penalty has already been mentioned, but there are several other methods (domestic and legal).
You can write a complaint to your ex-husband at your place of work. It is possible that the administration will use certain leverage against him.
And also in some cases, contacting the prosecutor’s office helps. They themselves have no right to collect alimony. But instructions that must be followed will be sent to the necessary authorities.
The form can be viewed on the page: Sample complaint to the prosecutor about the inaction of the bailiff.
Through the bailiffs, you can try to deprive your ex-spouse of his driver's license until he pays off the debt.
However, in this case, it is necessary that the amount of unfulfilled obligations exceed the threshold of 10 thousand rubles.
With the same amount, the question of limiting freedom of movement can be raised. With this option, the ex-spouse will be prohibited from leaving the Russian Federation.
We should also not forget about administrative or criminal prosecution of the debtor. First come administrative sanctions. If they do not help, then the bailiffs have the right to initiate a criminal case.
In any case, the mother herself has the right to decide how best to protect her rights.
