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.
Court order
A child support order is an order issued by a judge at the request of a person to receive a certain amount of support from the defendant. It is issued in absentia, i.e. without calling the debtor and the collector. A copy of the alimony order is sent to the debtor, after which he has the right to file an objection to the judge’s decision within a ten-day period.
As soon as such a statement is sent to the court, a date will be set for consideration with the parties summoned and evidence provided.
If the 10-day period provided for filing an objection was missed due to the fault of third parties, the defendant may apply to restore this period.
In addition to the objection, the defendant must send to the court a copy of the passport, a copy of the court order and documented grounds for the objection.
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.
Judgment
If alimony payments were awarded by decision rather than by court order, an appeal will require filing a complaint with the court.
There are two ways to complain about a court decision:
- Appeal. The decision can be appealed to a higher authority within 30 days. The application should be addressed to the district, city or magistrate's court with an appeal to a higher court.
- Cassation statement. After 30 days after the judicial review, the decision taken comes into force. However, a period of 6 months is provided during which the alimony payer has the right to file a cassation appeal. In this case, the judicial panel meets and a date for a new meeting is set.
According to Art. 333.21 of the Tax Code of the Russian Federation, the state duty for an appeal or cassation statement is 50 percent of the amount of the state duty payable when filing a claim of a non-property nature.
During the trial, the transfer of alimony ordered by the court should continue. If the court rejects the defendant's appeal in the case, the plaintiff will be able to file for recovery of the full amount of the unpaid amount. The calculation of alimony arrears is carried out from the date of entry into force of the court decision.
In case of non-payment of alimony, the defendant has the right to complain to the FSSP with a request to take collection measures. If this does not work, the plaintiff can contact the prosecutor's office indicating the criminal actions of the defendant in failure to comply with the court decision, in accordance with Article 315 of the Criminal Code of the Russian Federation.
Appeal by the defendant
Most often, defendants remain dissatisfied with the court's decision, for example, they do not agree with the amount of alimony or its purpose (% or fixed amount). In this case, the defendant will file the complaint. The essence of the requirement in this case may be “reducing the amount of alimony.” And the justification for the complaint will be the arguments and reasons that the applicant is not able to pay the established amount of alimony and offer a reasonable amount in return.
Remember that contacting a qualified professional greatly increases your chances of achieving a satisfactory result.
What you can do right now:
- Check whether there are grounds for filing a complaint;
- In case of misunderstanding or disagreement, ask the judge for clarification;
- Contact a qualified professional.
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How to file an appeal
To file an appeal against a court ruling, it is necessary to draw up a complaint that includes the following mandatory elements:
- Name of the court where the application is filed.
- Full name, address and contact telephone number of the defendant.
- The essence of the appealed decision.
- Reasons for disagreement and evidence of correctness.
- The requirements put forward.
- List of attached documents.
The document must be filed in the district court, but the document itself is filed in the magistrate's office.
If during the execution of the application the plaintiff made mistakes, according to Art. 323 of the Code of Civil Procedure, the court provides a reasonable period for eliminating deficiencies.
A sample appeal can be downloaded below (zhaloba-na-alimenti-1).
Why can a decision of a “lower” authority be overturned?
There are a number of reasons and circumstances why the decision of the magistrate can be quite justifiably overturned . Refusal can be either on formal grounds or on substance. Example of grounds for refusal:
- that are fundamentally important for the case are incorrectly defined
- norms of procedural or substantive law have been violated;
- the previous judge failed to prove things fundamental to the case;
- The court's findings contradict the facts of the case.
These are sufficient grounds to at least change the decision of the previous body. Least. But it will definitely be canceled if:
- requirements for the language in which the proceedings are being conducted are violated;
- the case was considered without one of the participants (or significant persons);
- the court made a ruling against those who have nothing to do with the proceedings;
- the case was considered by an unauthorized composition of the court ;
- of one of the judges involved in the case is missing Or there is a signature, but not that one.
- was violated ;
- no minutes of the meeting were kept.
In order for the magistrate’s decision to meet your expectations, it is important to write the statement of claim correctly, presenting all the necessary arguments and documents.
We recommend reading the article on how to draw up a claim for alimony payment.
Reduction in payments
With an application to reduce alimony, the payer has the right to apply to the magistrate’s court at any time. The basis for filing a request to reduce alimony is usually a significant decrease in income. Possible reasons include:
- Temporary loss of ability to work.
- Retirement.
- Receiving disability.
- Downsizing at work.
- Transfer to a lower paid position.
- Retirement.
- The emergence of new expense items.
If alimony was assigned not in a fixed amount, but as a share of income, you can file an appeal against the amount of payments in the event of a multiple increase in the payer’s income, as a result of which the amount of payments for a child or spouse significantly exceeds their real needs.
When considering a case, the court takes into account the following factors:
- The income level of the plaintiff and defendant. The amount of payments must correspond to the level of income of the alimony payer, otherwise he will not be able to make the necessary payments.
- Moral aspect. The recipient's addiction to alcoholic beverages may raise doubts about whether the funds received are used for child support.
- Conduct of the parties before the trial. Failure to pay payments prior to trial may serve as grounds for refusal to reduce the amount of payments.
- New obligations towards third parties. The appearance of new children in the family of the alimony payer may become the basis for a reduction in the amount of alimony.
Procedure for consideration
The appellate court notifies the participants in advance of the time and place of the upcoming hearing. On the appointed day and time, the presiding judge opens the hearing. He announces:
- number of the case under consideration;
- who disputes alimony claims;
- the decision of which court is being challenged.
In addition, the judge:
- finds out which of the participants in the process has appeared;
- their identity is established;
- checks the powers of representatives;
- clarifies the rights and obligations of the parties.
The authorized judge in his brief report sets out the circumstances of the court case. Then the explanations of the participants in the procedure, their representatives, and their representatives are heard.
First, the floor is given to the person who initiated the challenge of previously assigned alimony amounts and his representative.
If complaints were filed by both parties, then the alimony collector is the first to convey his position.
After this, other citizens who arrived at the court are heard, and objections are read out if their author is absent during the consideration. At the next stage, existing evidence is analyzed and new evidence is examined, if any.
After analyzing the case materials, the parties take part in judicial debates. Participants will argue their position in the same order as they gave explanations.
Let us note that the court considers the case only within the limits of the arguments that were set out in the complaint. That is, for example, if the applicant challenges only part of the decision, then the appellate authority checks the legality of this part exclusively. At the same time, the court, on its own initiative, can check the entire decision.
Penalty against parents
Parents have the right to demand alimony payments from their adult children if they have reached retirement age and their financial situation does not allow them to ensure a decent standard of living. In addition, disabled people of the first and second groups can apply for such support. You can appeal a court decision on payment to parents in the following cases:
- Parents hide their real income level.
- The fact of neglect of parental responsibilities before the child came of age was established.
The defendant may challenge the entire decision or request an adjustment to the amount awarded based on the documentary evidence provided.
An example of an objection to a claim for parental support
Recovery of wife's maintenance
A woman can apply for payments from her husband during pregnancy or during maternity leave, if she has a disability or incapacity for work, if there is a clause on monthly maintenance in the marriage contract.
Grounds for appealing spousal support may be:
- The child reaches three years of age.
- Challenging paternity.
- Absence of a marriage contract between spouses.
- Documentary proof of the spouse’s ability to work.
- Lack of permanent income for the alimony payer.
- Procedural violations in the claim.
Grounds for appeal
In accordance with Art. 129 of the Code of Civil Procedure, the decision is canceled if there are at least some disagreements, even if they are not justified (the existence of a dispute already contradicts the writ proceedings).
It is advisable to file objections only if:
- there really is an unresolvable dispute with the payee;
- the payer has valid grounds for appeal;
- the payer is going to challenge his paternity;
- there was an error by the magistrate when assigning payments.
IMPORTANT! The law provides that sufficient grounds for canceling an order are the receipt of any objections.
Perhaps you will
A fixed amount of money
To reduce or cancel alimony prescribed in a fixed amount of money, there must be compelling reasons, which include:
- Low income level.
- Rental of property.
- Immoral behavior of the plaintiff.
- The plaintiff has a high level of income, documented.
- The birth of new children in the defendant's family.
After the expiration of the 7-month period, appealing the court decision will become impossible. To change the amount or order of child, spousal, or parental support payments, you will need to file a new claim.
The legislative framework
In the process of drawing up an appeal for non-payment of alimony, you should be guided by the following regulations:
- “Civil Procedure Code of the Russian Federation” dated November 14, 2002 N 138-FZ (as amended on December 19, 2016) (with amendments and additions that entered into force on January 1, 2017).
- “Tax Code of the Russian Federation” (TC RF) dated July 31, 1998 N 146-FZ.
- “Criminal Code of the Russian Federation” dated June 13, 1996 N 63-FZ (as amended on June 7, 2017) dated June 13, 1996 N 63-FZ.
- “Family Code of the Russian Federation” dated December 29, 1995 N 223-FZ (as amended on May 1, 2017) dated December 29, 1995 N 223-FZ.
