From what moment (date) is child support calculated?

Last modified: January 2021

Typically, women go to court for alimony after a divorce, when a certificate of divorce has already been received and passions about separating from their partner have subsided. The lack of an accurate understanding of the moment at which child support is calculated leads to the fact that the court either refuses to satisfy the requirements or makes a positive decision, when in fact the plaintiff had the right to receive a larger amount. Understanding will help determine the optimal start date for collection and establish the process of interaction with bailiffs if the payer himself refuses to comply with the court order.

Not only mothers have the right to go to court with a demand for alimony payments. A man has the right to make similar demands if, after the termination of relations with his mother, the children remained in the care of the father.

Grounds for collecting alimony for the past period

Alimony is calculated from the date of filing the application with the court. According to Art. 107 of the RF IC, it is possible to recover alimony for the past in 2021 in the following cases:

• no alimony agreement has been concluded between the parties;
• the defendant canceled the child support order;
• the payer intentionally evaded alimony payments;
• the recipient tried to collect alimony through the court or enter into an agreement.

Note! You cannot collect alimony if you have a notarized alimony agreement. If the father does not comply with the agreement, you should immediately contact the bailiffs. This document is equivalent in legal force to a writ of execution.

Period for calculating alimony

For the past period, it will be possible to claim money for no more than three years.

The terms of alimony obligations are established depending on the situation:

• child support until adulthood.
• alimony for a spouse on maternity leave – until the end of maternity leave. If she starts working before the child turns 3 years old, the alimony payer can file an application to cancel alimony for the former spouse due to her ability to work;
• alimony for a disabled person - for the period of establishment of the disability group.

The period for payment of alimony for needy pensioners is set by the court individually. Most often, obligations are lifted when a spouse enters into a new marriage or when disability is removed (Article 120 of the RF IC).

Procedure for calculating alimony after paternity is established

The procedure for establishing paternity does not in any way affect the procedure for calculating alimony payments.

Important! When carrying out the procedure to establish paternity through the court, it is most reasonable to immediately, when filing a lawsuit, include a request for alimony in the application. This will significantly help save the plaintiff’s time.

Such payments are absolutely similar in principle to the accrual of financial assistance intended for minor children and incapacitated parents, namely:

1. Payments are made from the moment the paternity application is submitted to the court office, but provided that it contains a clause regarding alimony payments.
2. If this item is not in the application, then payments begin from the moment the alimony claim is filed with the court office.

Amount of alimony for the past period

According to the law, alimony for the maintenance of minors is established in a shared amount or in a fixed monetary amount.
If the payer has several sources of income, mixed payments are assigned. To collect alimony for the past time, several circumstances are taken into account:

1. Availability of verified income.
2. Lack of official income, unemployment.
3. Providing property to pay alimony.

Let's consider each option in more detail.

Have verified income

If the alimony obligee can confirm earnings during the time when he had to transfer money and the recipient tried to claim it, the amount of the debt is determined as follows:

1. The salary is set for the entire period. The data is taken from the 2NDFL certificate.
2. Earnings are multiplied by interest depending on the number of children.

When receiving different salary amounts, recalculation is carried out monthly.

Example. In April, R. N. Panteleimonov earned 20,000 rubles, in May – 35,000 rubles, in June – 29,000 rubles. All this time, the ex-wife tried to agree with him on the payment of alimony for their common child, but he avoided obligations. Then the woman filed a lawsuit to recover money for the future and for the past period. 20,000 x 25% = 5,000 rub. – amount for April. 35,000 x 25% = 8,750 – for May. 29,000 x 25% = 7,250 rub. - for June. 5,000 + 8,750 + 7,250 = 21,000 rub. – the amount of debt for the past period.

The defendant is unemployed or works unofficially

If the father does not work, but is not registered with the employment center or works unofficially, then alimony is calculated in a fixed amount. TDS is a fixed amount proportional to the cost of living per child in the region. For example, alimony can be assigned in the amount of 1 monthly salary. That is, when collecting alimony for the past period of 3 years, the amount of payment will be 36 months x 1 RM.

Example. Ilyin K.L. After the divorce, he did not pay child support for his son. His ex-wife repeatedly tried to conclude an agreement, but the man did not come to the notary. Official work with Ilyin K.L. there was none, but he had a constant income from renting out 3 apartments. The woman went to court to collect alimony for the past period. She asked for alimony in the amount of the subsistence minimum for the child. The court determined that Ilyin K.L. must pay alimony from the date of divorce, that is, for 12 months. The amount of PM in the region was 11,000 rubles. That is, the father must pay: 12 x 11,000 rubles. = 132,000 rub. and monthly another 1 PM.

Repaying debt by providing property

If the debtor owns real estate or valuables, he can provide them to pay off the debt. But this can only be done by notarial agreement.

What is needed for this:

1. Determine the amount of debt.
2. Establish the value of the property. For this purpose, an expert assessment is carried out.
3. Transfer property into the ownership of a minor under a notarial agreement on transfer in payment of alimony.

Important! It is necessary to draw up an agreement, not a deed of gift. Drawing up a gift agreement without an agreement on the transfer of real estate to pay off alimony debt does not exempt the payer from transferring money to the child. The document must indicate that the property is transferred specifically to pay off alimony debt. In this way, you can pay off debts for the past period or save yourself from payments before the child comes of age.

How to collect arrears of alimony through the court?

How to recover additional expenses for a child, in addition to alimony?

The procedure for collecting alimony for the past period

Algorithm of actions:

1. Try to negotiate a voluntary transfer of funds.
2. Save correspondence and recordings of telephone conversations - they will be needed to claim money in the future.
3. Collect documents and evidence.
4. File a claim with the district court at the defendant’s place of residence.
5. Come to the court hearing. The parties are notified of the appointed date in writing or via SMS a few days after the registration of the statement of claim and other documents.
6. Receive a court decision and writ of execution. The claimant himself transfers the IL to the FSSP. The bailiff will initiate enforcement proceedings within 2 months.

To collect a debt, the bailiff must:

• conduct a conversation with the debtor so that he pays off the debt voluntarily;
• request information about his property from the traffic police, from Rosreestr;
• request account information;
• send the writ of execution to the accounting department of the enterprise where the debtor works.

If the debtor is officially employed, then payments will be transferred automatically no later than 3 days after receiving the salary. Up to 70% of his salary will be withheld.

If a man evades obligations, an FSSP officer has the right to seize bank accounts, prohibit travel abroad, and petition for the confiscation of a driver’s license if the amount of debt exceeds 10,000 rubles. Repossession of property and subsequent sale at auction is carried out if the amount of debt is approximately equal to the cost of housing.

Who is eligible to apply?

Collection of alimony payments in 2021 for the past period can be made not only for minor children, but also for other relatives. Among them:

• spouses and former spouses during pregnancy or maternity leave, caring for a disabled child or an adult disabled child of group 1 since childhood;
• disabled former spouses who became disabled during marriage or within a year after divorce;
• needy former spouses who retired within 5 years after the divorce, if the marriage was long (5 years or more).

A spouse or former spouse can recover money for their maintenance if they prove in court that they asked the debtor to help them financially (Part 2 of Article 107 of the RF IC).

Jurisdiction

In 2021, the claim with the remaining documents will be filed in the district court:

• at the place of registration of the child’s father;
• at the mother’s place of residence, if the child is small or she has a disability;

If the man’s registered address is unknown, you should contact the court at the location of his property or at the last known address of his residence.

Adult relatives can only appeal to the district court at the place of registration of the defendant.

Statement of claim (sample)

The law does not establish the form of an application for the collection of payments, but it must comply with the requirements of the Code of Civil Procedure in terms of content.

The claim includes the following:

• name of the court;
• Full name, addresses of the plaintiff and defendant;
• passport details of the plaintiff;
• information from marriage registration and divorce certificates;
• data from children's birth certificates;
• an indication of the facts of deliberate evasion of child support payments by the defendant;
• links to evidence and legislative norms that allow you to claim money for the past time; claims - to recover payments from the defendant in a fixed or shared amount;
• a list of proposed documents.
• At the end there is a date of compilation and a signature.

Sample claim

Evidence base

When submitting documents and at court hearings, you will need evidence confirming that the defendant evaded collecting alimony.

It could be:

1. Recordings of telephone conversations, witness statements, copies of paper letters, electronic correspondence. In them, the plaintiff must ask to buy clothes, shoes for the child, or transfer money for the maintenance of the child.
2. The fact that a man evades transferring funds for a child is a complete lack of financial assistance on his part.

Unscrupulous fathers believe that they can transfer 1,000 - 2,000 rubles each so that they cannot collect alimony for the past. In fact, if the father’s income allows him to transfer more, then alimony will be collected, despite the minimum payments.

Required documents

When going to court, in addition to the statement of claim, the following is provided:

• calculation (it is carried out by the plaintiff independently to substantiate the claims);
• passport;
• an extract from the house register that the child lived with his mother;
• salary certificates;
• certificates of marriage and divorce, birth of children.

If a representative acts on behalf of the plaintiff, you will need his passport and a notarized power of attorney.

Payment of state duty

Based on Art. 333.36 of the Tax Code of the Russian Federation, the plaintiff is exempt from paying state duty. In cases of alimony, it is paid only when the amount of payments is revised or alimony obligations are canceled under Art. 120 IC RF.

When is alimony calculated after a divorce?

When a court order or decision is received, this does not yet provide grounds for organizing enforcement proceedings. It is necessary to wait until the end of the defendant's right of appeal. After this, the executive document is transmitted:

• at the debtor’s place of work;
• to the bailiff department to which the payer belongs territorially.

When submitting a document for execution, the recipient of the cash payment writes an application for the transfer of funds using the specified details. The bailiff will begin the procedure for collecting alimony from the moment the application is submitted, taking the date of going to court as the starting point for calculations. Similar deadlines are adhered to in the accounting department at the payer’s place of employment.

According to the law, the start of actual deductions will begin with the next salary payment, since the accounting department is obliged to transfer alimony payments no later than 3 days from the date of payment of the salary. To avoid problems and claims, the accountant tries to organize transfers simultaneously with the payment of wages.

How can a father avoid paying child support for previous years again?

Often, after a divorce, parents agree that the man will transfer money voluntarily (without court and without agreement).
But after a few years, the woman goes to court and collects alimony for the past period. She explains that the money was transferred as a gift for her or as a loan, and the father did not give money for the maintenance of the child. There are real cases of judicial practice where such requirements were satisfied. To avoid fraudulent actions on the part of your ex-wife, when paying alimony voluntarily (without court or agreement), you must:

• transfer money to a bank card and indicate in the purpose of payment: Child support for (full name of the child) for January 2021;
• transfer money in cash only if the ex-wife writes a receipt confirming receipt of money for alimony.

Receipts from the bank for the transfer do not need to be saved. They spoil quickly. If you need proof, you can always take a bank statement. And the ex-wife’s receipts must be kept for at least 3 years.

Who will receive alimony payments from the moment you go to court?

In most cases, assigned alimony is collected from the moment the child goes to court in favor of minors. The Family Code requires parents to take care of their children until they reach their 18th birthday.

The obligation of a natural parent is valid for an indefinite period from the moment of birth until adulthood. The only exception to the rule applies to adopted children. After a child is adopted by another person, along with the rights, responsibilities for financial support of the ward are transferred.

The age of majority is often the time limit during which child support will be awarded. Regardless of how a parent pays child support, obligations and arrears will be collected until full payment is made, no matter how long it takes. The statute of limitations rule does not apply if the court decision has already been submitted for execution.

If a child, after 18 years of age, continues his studies or maintains the status of “incompetent” due to a serious illness or disability, the parent has the right to apply to the court for an extension of the period of payments in favor of the ward.

Arbitrage practice

A review of judicial practice allows us to draw the following conclusions:

1. If the court determines that during the disputed period the father financially helped the child, the court will refuse to satisfy the demands. Decision of the Leninsky District Court of Smolensk on January 23, 2021 in case No. 2-456/2020.
2. If the defendant admits the claims, then the court collects alimony for the past period without additional evidence. Decision of the Central District Court of Sochi dated November 28, 2021 in case No. 2-5583/2019.

An example from judicial practice. The Martynovs divorced in 2017, leaving a common minor son with their mother. The woman applied for a restraining order. The father filed an objection to the court order and overturned it. The former spouses agreed on voluntary payments. Payments were received only for 2 months, then the ex-husband stopped communicating. For a year, the woman tried to demand alimony from him, but he did not respond to messages and calls.

In 2021, the ex-wife filed a lawsuit to recover payments through the court. Since the mother had taken measures to collect child support earlier, the court satisfied her demands. The funds were collected over the past 3 years. To calculate the debt, we took the average salary in the region - 29,000 rubles.

Calculation procedure: 29,000 x 12 (months) = 348,000 rubles. 348,000 x 25% (amount of alimony for one child) = 87,000 rubles. – the total amount of debt for the year. 87,000 x 3 (years) = 261,000 rubles. 29,000 x 25% = 7,250 rub. – payments for 1 month. Thus, alimony for the current period in the amount of 7,250 rubles will be withheld from the payer. per month and alimony for the past time. The total amount should not exceed 70% of the total income of the alimony holder.

Payment terms when drawing up a voluntary agreement

Former spouses, having agreed to pay child support voluntarily, have the right to independently determine the date from which the money will be paid. The law does not establish any special restrictions on this.

You should know! In order for the alimony agreement to gain legal force, you must visit a notary: without his certification, this document is just a piece of paper. The agreement is drawn up in writing. In this case, you need to go to the notary with a draft document in hand (the cost of this service is about 2,500 rubles ).

The payer has the following rights:

• make a one-time payment of money in an amount not lower than that required by law;
• transfer real estate to the child to pay off the child support obligation;
• make monthly transfers in a fixed amount of money; or shares of earnings that are specified in the peace treaty.

From when should alimony be calculated according to the agreement? According to the peace agreement, they must be accrued as soon as the notary certifies the document.

Life situations

For a detailed analysis of the specifics of collecting alimony for the past, it is enough to familiarize yourself with the most common situations.

If the child is over 18 years old

You can collect child support for the past period until the child reaches 21 years of age. While the child is 18 years old, alimony can be collected for 3 years, at 19 years old - for 2 years, at 20 years old - for one year.

Example. The couple divorced when their daughter was 12 years old. From that moment on, the woman tried to claim alimony from the man, but went to court when the child turned 18 years old.

Evidence of attempts at a peaceful settlement is presented. Despite the fact that the plaintiff tried to obtain payments for 6 years, alimony was collected only for 3 years.

If the mother did not try to collect child support

If the mother did not take action to collect child support, the court will refuse to satisfy the requirements. This means that if the father did not know about the child, then he should not pay child support for previous years.

Example. The plaintiff filed a demand for the collection of alimony payments for the last 3 years, indicating that she and the defendant had not lived together for 12 years, but did not formally file a divorce.

It was established that the man did not know about the presence of a daughter, and his wife did not try to voluntarily demand money from him.

The latter is the basis for refusing to satisfy the claim, but the defendant himself invited the plaintiff to draw up an alimony agreement and indicate in it the amounts for repaying the debt for 3 years, as well as the amount of alimony for the future.

If paternity has been established

If paternity was established a year ago, it will be possible to claim funds only for this period, and not for 3 years, since the payer was not legally the father before.

Example. The child was born in 2021, there is a dash in the “father” column. His mother began living with his biological father in 2021, divorced in 2020 and decided to establish paternity. The examination showed a relationship. After this, the woman filed a claim for the recovery of alimony for the past period, i.e. for 2021, 2021 and 2021. The claim was denied, since obligations to provide financial support for children arise at the time paternity is established. If it had been received at the time the child was registered at the registry office, it would have been possible to recover the money.

Differences between alimony for the past period and alimony debt

There is a significant difference between these two concepts, although many people confuse them. To understand the differences in detail, just look at the comparison table:

How are accrued alimony payments collected?

After considering the case and making a decision, the court issues a writ of execution. The plaintiff can - personally or, entrusting this task to the court - transfer this document to the federal bailiff service at the registration address - at the place of residence of the alimony payer.

In addition, he can transfer the writ of execution to the defendant himself or his employer to the accounting department. After the start of enforcement proceedings, the payer will pay alimony under the control of bailiffs. And here the question of when alimony is collected is already obvious - immediately, in an amount equal to the monthly payment, and then at monthly intervals.

Lawyer's answers to private questions

My son is 20 years old. I have been divorced for a long time and have not applied for alimony. Can I collect child support now?

If the child is 20 years old, then you can only recover child support for the past period. That is, for 1 year.

My ex-husband and I entered into an agreement. But he hasn’t paid alimony for a day, can I collect money for the past time?

To do this, you need to submit an agreement to the bailiffs. Explain that the agreement was not fulfilled. The money will be collected from the date of conclusion of the agreement.

I have a daughter born in 2021 from a woman with whom we were not married. The cohabitant established paternity through the court. Can she collect child support starting in 2021 if I transferred money to the child every month?

Alimony can be collected from the date the court decision enters into legal force.

I received a court order for alimony, but my ex-husband canceled it. If I file a lawsuit now, will alimony be collected only when the court decision comes into force?

You can indicate in your claim a demand for the collection of alimony for the past period. In this case, the court will order alimony from the date of filing the application for the issuance of a court order.

The ex-husband promised to transfer 10,000 rubles each month for 2 children. to each. But after six months the money stopped coming. Can I collect child support for the months when he did not pay money?

You can file a claim to collect alimony for the past period if you tried to get it. If during the months when he didn’t pay, you didn’t call, didn’t write, didn’t ask, didn’t go to court, then the court will refuse to satisfy the demands.

Recovery as a percentage of earnings

In our country, according to the law, the amount of alimony as a percentage of wages is:

• for one child – 25%;
• for 2 children – 33%;
• for 3 or more children – 50%.

For this option of collecting alimony, it is necessary to know exactly the amount of the defendant’s earnings. For this reason, the court requests documents from the debtor that will indicate the amount of his income for the last three years. If the debtor has not worked anywhere all this time (or part of it), then the calculation is carried out based on the average salary in the Russian Federation at the moment.