Collection of alimony in the amount of the subsistence minimum

How is the cost of living related to the amount of alimony?

The subsistence level is considered to be the minimum amount required to meet the priority needs of a specific group of the population: children, pensioners, people of working age.

In cases where the court assigns child support in a fixed amount (Article 83 of the Family Code of the Russian Federation), its amount will directly depend on the level of the subsistence minimum. If in a particular region the size of the monthly minimum is not established at the regulatory level, then the amount that applies throughout Russia is taken as a basis.

In addition, Art. 117 of the RF IC determines that payments are subject to indexation in proportion to the increase in the amount of the subsistence minimum (must be carried out every quarter).

Note: when determining the amount of child support payments as a share of the salary (Article 81 of the RF IC), there is no direct dependence on the cost of living. Here, the amount of alimony will be influenced by the amount of earnings of the alimony obligee.

Grounds for replacing a share of income with a fixed amount

In most cases, alimony is awarded as a share of wages or other income. But there are situations when it is more profitable for the recipient if the transfers are in the form of a fixed payment.

The grounds for transferring a share of income to a fixed payment are:

1. The payer’s income is not constant, that is, its size changes.
2. The payer receives the money either in kind or in foreign currency.
3. The payer does not have an official income or it is impossible to determine the percentage, for example, for an individual entrepreneur.
4. The share of official income is very small and does not satisfy the interests of the child.

Attention! Alimony awarded in the form of a fixed amount is subject to indexation in accordance with the rate of inflation.

Can the amount of alimony be less than the minimum subsistence level?

The court may set the amount of alimony below one monthly minimum.
When assigning alimony payments, the court, as a rule, takes as a basis the provisions of Art. 61 of the RF IC, which states that parents are equally obliged to support their children. Based on this norm, the courts assign child support in a fixed amount of money in the amount of half the subsistence level. It is understood that the second half of the amount for priority needs must be provided by the parent with whom the child (or children) lives together.

When determining the amount of payments, 2 factors are primarily taken into account:

1. The degree of need of the plaintiff. If the parent with whom the child lives has a significant income, then he needs less financial support than one who does not have any income.
2. The level of solvency of the defendant. In cases where the person liable for alimony does not have a permanent income or earns the minimum, the court cannot completely deprive him of his means of subsistence.

Note! The courts are also guided by paragraph 27 of the Resolution of the Plenum of the Armed Forces of the Russian Federation dated December 26, 2017 No. 56 “On the application of legislation by courts...”. It says that the amount of alimony is set taking into account the maximum possible preservation of the previous standard of living for the child. Less than half of the PM may be prescribed if the payer has a poor financial situation or cannot pay ½ of the PM due to family circumstances. He must prove all this in court.

Collection of alimony for the maintenance of parents

Collection of alimony in a fixed amount

Standard collection scheme

Payments in favor of minor children are regulated by Article 81 of the RF IC and are collected monthly in shares of earned funds in the “net” mode (after withholding personal income tax), determined by the number of persons who need support:

• quarters - for one child;
• thirds - for two dependents;
• half – for three or more persons.

The clause contained in the article allows deviation, both upward and downward, based on an analysis of changes in the financial, family plan or other objective factors, which do not include equalization if alimony is less than the subsistence level.

The above method of withholding takes priority when establishing in relation to children and is applied even when the claimant filed a corresponding statement of claim for payment in a stable amount or in a combination of several types, but the court did not establish compelling reasons provided for in Article 83 of the RF IC

This is directly stated in paragraph 26 of the Resolution of the Plenum of the Armed Forces of the Russian Federation No. 56 of December 26, 2017 regarding the circumstances taken into account and the revision of the payment scheme. What to do if alimony is below the subsistence level with the standard method of deduction? Based on the calculation algorithm, in order to automatically increase payments, the other half needs to increase the income they receive or, through joint efforts, increase the number of children, which directly follows mathematically from the formula:

What to do if alimony is below the subsistence level using the standard method of withholding? Based on the calculation algorithm, in order to automatically increase payments, the other half needs to increase the income they receive or, through joint efforts, increase the number of children, which directly follows mathematically from the formula:

In order for alimony to become no lower than the subsistence level, it is necessary to substitute the values ​​​​in numbers into the formula and calculate the accrued income backwards. Considering the indicator for children for the 2nd quarter of 2021 in Russia as a whole is 11,004 rubles, and transforming the formula based on a single minor, the “alimony-taxable” value is obtained:

Formula

The accrued amount of income in the “gross” mode = 11004/0.25/0.87(1-0.13)=50593 rubles.

Can alimony be below the subsistence level? When calculating using the standard method, payments per child will always be below the established indicator when the accrued salary is below 50,593 rubles - the borderline indicator in the absence of benefits and citizenship of the country. At the same time, the salary exceeds the minimum allowable in the country by 4.485 times (50593/11280).

If the company calculates the minimum wage, then alimony for one child will be:

Formula Monthly payment amount collected = (11280-(0.13*11280))*0.25=2453.40 rub.

If the monthly amount in monetary terms is less than 2,453.40 rubles, then this is evidence that the employer is charging wages below the minimum wage. When deciding on a promotion, you can choose a confrontational path in the form of threats from the administration to send inspection structures, but adjusting working hours deprives you of your trump cards. For example, if a spouse is registered to work half-time from the “minimum wage”, then this will be the base indicator for calculation.

If there is one minor child, how to increase the amount of alimony to the subsistence minimum practically if monetary compensation is insufficient to the required level is to force the employer to pay wages of at least 50,593 rubles. If an enterprise uses shadow turnover in its work, then is the spouse, as a specialist, worth leaving the shadow within the limits of his salary, and wouldn’t it be easier to exchange him for an employee without alimony problems?

Calculation of alimony from the subsistence level

The amount is calculated taking into account the cost of living if the court orders maintenance in a fixed amount. As a rule, for this purpose they take the cost of living in a particular region and divide it in half. This position is explained by the fact that both parents must support their child equally. Exceptions are situations where the claimant has a minimum income, and the defendant has the opportunity to pay more than this amount.

If the cost of living has not been established in a particular region, then the all-Russian indicator is taken into account.

Calculation example.

The monthly minimum wage per child in the region is 12,000 rubles. If the court satisfies the requirement to collect alimony in the amount of ½ monthly minimum, the payer will transfer 6,000 rubles monthly.

You can also file a statement of claim demanding the recovery of 0.8 PM, for example. Under the same conditions, payments will increase to 9,600 rubles:

12,000 x 0.8 = 9,600 rub.

Indexation of alimony

In Russia, the inflation rate is determined annually, to which all state benefits are indexed.
It is necessary to increase alimony payments, which are tied to the subsistence level, by the same amount. This is done like this:

• the amount by which the cost of living per child has been increased is determined;
• this indicator is divided by two (both parents increase the amount of maintenance);
• the resulting difference is added to the monthly payment.

Indexation of payments is mandatory both in the case of a voluntary agreement between the parties and in the case of a court decision.

What to do when alimony is below the subsistence level?

In situations where the amount of monthly payments for child support is below the subsistence level, it is realistic to demand an increase in alimony in court.
In this case, the plaintiff must justify the need for such an increase and confirm it with documents. You can file a claim in court an unlimited number of times. The main thing is to have strong evidence that the child needs more funds for normal life and development than was determined by the previous court decision. It is also important to argue that the ex-spouse has the opportunity to increase the amount of maintenance.

How to write an application correctly?

To achieve a positive result in the form of an increase in payments, you need to competently draw up an official request. There are certain rules for writing it that must be followed:

The amount of support and the option for transferring it are indicated; Grounds that became the reason for revising deductions The more detailed the reason is stated, the higher the likelihood of making a positive decision; It is necessary to specify in what form the recalculation is required. When writing down the last point, you need to take into account the fact that with “share” payments a certain share grows, with “hard” payments there is only a monetary expression.

When completing the request, it is important to indicate the desired amount of transfers, the name of the dependent person and the option for receiving the amount. When completing the request, it is important to indicate the desired amount of transfers, the name of the dependent person and the option for receiving the amount

When completing the request, it is important to indicate the desired amount of transfers, the name of the dependent person and the option for receiving the amount

Reasons for increasing the amount of payments

The grounds for reviewing the amount of alimony for a minor include the following:

• a significant decrease in the income of the recipient of alimony payments - this may occur if the amount of monthly earnings decreases;
• loss of source of income - most often the reason for job loss is staff reduction;
• deterioration in the health of the parent receiving alimony - in cases where serious treatment costs are required, the person cannot allocate the same amount to support the child;
• rapid rise in prices for consumer goods - provided that the income of the alimony recipient has not changed upward;
• death of a person who provided financial assistance to the recipient of alimony payments - most often this role is played by parents;
• the emergence of new dependents, whose maintenance is the responsibility of the recipient of alimony - in this situation we may be talking about the need to provide financial support to disabled parents (other relatives) or the birth of the next child.

Important! You can apply for an increase in alimony for a minor if the income of the alimony obligee has increased significantly or his obligations for material support of other persons have been terminated (for example, in the case of the coming of age of children to whom alimony was previously paid; the death of disabled recipient parents).

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Alimony is the material maintenance that, in accordance with the law, some family members are obliged to regularly provide to others. In the case we are considering, we will talk about a situation where a parent living separately pays child support to a minor child who remains to live with the second parent.

The reasons for receiving such funds may be as follows:

• alimony agreement;
• judgment/order

There are often cases when the amount of alimony does not suit one of the parties or does not provide the expected level of financial support, and sometimes it may even be below the subsistence level. This situation especially often arises when determining the amount of alimony in shares, because the official income of the alimony payer may even be equal to the minimum wage.

How to collect alimony in the amount of the subsistence minimum in court?

In order to achieve the recovery of amounts the amount of which will be equal to 1 PM (or to increase the amount of assigned payments), you should draw up a statement of claim and file it with the court.

Satisfaction of claims is possible if the defendant has a good income, and it is not possible to provide the child with a normal standard of living without alimony in the amount of 1 monthly wage.

Note: sometimes alimony is collected based on a court order. But it is impossible to achieve payments in a fixed amount of money in a simplified manner: according to paragraph 3 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated December 26, 2021 N 56, Moscow “On the application of legislation by courts when considering cases related to the collection of alimony”, through an order proceedings will not be able to recover payments in the amount of a fixed amount, since this requires checking the presence or absence of circumstances indicating the possibility of recovery in this way. They are indicated in Art. 83 RF IC.

How to increase the amount of alimony to the subsistence level and above?

You can count on an increase in the amount of alimony payments in cases where the parent with whom the child lives (most often the mother), cannot, taking into account the assigned maintenance, provide him with the same standard of living.

If we analyze the reasons outlined above for revising alimony payments in the direction of increasing maintenance for one’s minor child, then this is realistic in 2 cases:

1. If there are negative changes in the financial situation of the alimony recipient.
2. When the payer's monthly income increases.

Step-by-step instruction

If the plaintiff can confirm the above circumstances, it is necessary:

1. Draw up a statement of claim for the recovery of child support in the amount of one monthly wage or a share of the monthly wage.
2. Send one copy of the application and one copy of the prepared documents to the defendant.
3. Wait for notification when the defendant receives the documents.
4. Submit an application with the remaining documents to the court, and in a few days receive a decision on acceptance for proceedings.
5. Go to meetings. First, a preliminary hearing is scheduled, then a trial.
6. Receive a decision and wait for it to take effect. In-person proceedings begin in a month, in absentia – 7 days from the date of delivery of a copy to the defendant.

You also need to pick up the writ of execution from the court and present it at the defendant’s place of work. If you don’t want to go there, the claimant has the right to contact the bailiff directly.

How to file a claim for alimony in the amount of the subsistence minimum?

In order to correctly draw up an application demanding the recovery of child support in the amount of the subsistence minimum, it is necessary to be guided by the provisions of the Civil Procedure Code.

The application must include the following points:

• the name of the court whose competence includes the consideration of such disputes;
• information about the plaintiff - this includes personal data of the parent with whom the child remained to live, date of birth, his address and contact information;
• information about the defendant - contains personal data of the potential alimony payer, date of birth, address, telephone number where he can be contacted;
• content of the claim - includes a description of the circumstances in connection with which it became necessary to demand participation in the maintenance of the minor from the second parent;
• justification of the requirements contained in the application - here it is necessary to prove that an amount of at least the subsistence minimum is required for the maintenance of the child, attaching documents confirming this;
• references to the norms of the current legislation - first of all, they refer to the norms of the Family Code, which establish the obligation of parents to support their minor children, and also the regulations that fix the cost of living in a certain region must be indicated.

Sample claim

Documentation

The following documents must be attached to the statement of claim for the recovery of alimony in the amount of the subsistence minimum:

• a copy of the plaintiff's passport;
• copies of marriage and divorce certificates;
• a copy of the child's birth certificate;
• copies of documents confirming that the financial situation of the recipient of alimony payments has worsened - this could be a certificate of monthly earnings, a copy of the work record book with a notice of dismissal, an extract from an outpatient card or medical history;
• certificate of residence – confirms the fact that the claimant and the child live at the same address;
• calculation of alimony payments - if we are talking about increasing their size, then the existence of such a need should be justified.

When calculating the amount required for the maintenance of a minor child, one should also take into account the growth of needs, taking into account individual characteristics (health status, the need for sanatorium treatment, the presence of talents, the development of which requires additional costs.)

Which court should I go to?

Previously, it was possible to collect alimony through the magistrate's court. Now city and district courts deal with such cases.

Note: the plaintiff can file an application with the court at his place of residence on the basis of Part 3 of Art. 129 Code of Civil Procedure of the Russian Federation.

Actions to increase alimony

When the procedure for paying for maintenance has already been determined, however, from the point of view of the recipient it is insufficient and inconsistent with the interests of the minor, there are two options for what to do in order to reconsider the conditions that do not suit the child and his legal representative:

1. Voluntarily through an agreement of the parties to pay alimony.
2. In a judicial body, when achieving a consensus is impossible.

In the contract, in addition to other important provisions, you can accurately indicate the amount of monthly child support, which may be the subsistence level in your region.

Of your own free will

The easiest way to increase the amount is to discuss the current financial issue with the alimony payer, and after reaching a compromise solution that suits both parties, making changes to the current document. Due to the legal significance of the contract, after signing it is required to have it notarized.

Forcibly

The most common way to increase alimony payments is through the courts. The following circumstances may serve as grounds for re-applying to court to increase alimony:

• decrease in mother’s income, reduction in earnings;
• loss of labor income due to reduction or dismissal;
• serious health problems, in which the previous earnings are impossible, additional medications are required, which leads to a lack of funds for dependents;
• the birth of a new baby, the appearance of other adult dependents (parents);
• growth in the alimony payer’s earnings;
• reduction of father's expenses for other payments (cessation of alimony for other children who have reached the age of majority).

As with the initial filing of a claim, fixed payments for alimony from the subsistence level are possible only in specific situations where shared collection infringes on the interests of the child or is impossible due to the lack of official income, the variability of earnings, the incomparability of costs and the level of the payer’s salary.

If a parent receiving maintenance for a minor applies to the court to review the amount of payment again, the court, most often, leaves the same calculation procedure in place. If it was decided to calculate alimony as a share of earnings, in order to increase the amount, you will first need to go through the process of switching to a new calculation scheme in a fixed amount.

There are cases where the court orders alimony in the amount of 0.2 or 0.5 of the minimum living expenses approved by regional legislation. Success in increasing payments largely depends on the presence of serious arguments, the arguments of the plaintiff, as well as the specific circumstances stated by the defendant. Based on the results of consideration of the claim, the court may order a payment in the amount of 1 or 2 PM. The law does not establish specific limits on payments.

The birth of a baby imposes obligations on both parents. When, with the departure of one of them from the family, part of the money that was previously allocated to support the child is lost, the second parent has the right to apply to the court for the assignment of alimony. However, it must be taken into account that each situation in the family is individual, the earnings and financial capabilities of the parents are different. You should not hope that the court will award a payment that fully covers the financial needs of the child, since the law establishes an equal degree of responsibility for both parents for the financial support of the minor.

2020 zakon-dostupno.ru

Indexation of alimony payments in accordance with the subsistence level

Art. 117 of the RF IC establishes that alimony is indexed taking into account the size of the subsistence minimum. Indexation is carried out by the accounting department at the payer’s place of work. If he does not work, the amount of payments is reviewed quarterly by the bailiff, provided that the claimant has applied to him with a writ of execution.

In situations where payments were established as a proportion of the monthly income of the person receiving alimony, they are not indexed. This is due to the fact that the salary from which payments are deducted is indexed.

How to receive alimony in the amount of the subsistence level: judicial practice

Most often, courts oblige defendants to pay 0.5 monthly payments for minor children. But sometimes it is possible to collect 1 PM. For example, by Decision No. 2-118/2020 2-118/2020~M-135/2020 M-135/2020 dated May 26, 2021 in case No. 2-118/2020, the man was ordered to pay 12,281 rubles monthly. (1 PM) despite the fact that he is unemployed and registered with the Employment Center.

There are still more examples of collecting 0.5 PM in practice:

1. Decision No. 2-1676/2017 2-34/2018 2-34/2018 (2-1676/2017;) ~ M-1801/2017 M-1801/2017 dated February 8, 2021 in case No. 2-1676/2017 .
2. Decision No. 2-558/2020 2-558/2020~M-180/2020 M-180/2020 dated May 27, 2020 in case No. 2-558/2020.
3. Decision No. 2-793/2020 2-793/2020~M-247/2020 M-247/2020 dated May 13, 2020 in case No. 2-793/2020.

Legal advice: in order to achieve payments in the amount of 1 PM, you need to provide the court with evidence indicating that smaller amounts will not help maintain the child’s previous standard of living. This could be parental salary certificates, section payment receipts, checks for the purchase of clothes and shoes. For example, if a minor used to go in for sports, but alimony of less than 1 monthly wage, combined with part of the income of the second parent, will not allow him to pay for the class and he will have to give up classes, the court will take this into account and assign the optimal amount for him.

Lawyer's answers to private questions

How can I find out what the cost of living is in my region?

The PM is approved by the Decree of the Regional Government. You can see its size on the website of the local administration; usually all information is published there.

Is it possible to recover child support in the amount of one monthly wage from an ex-husband if he is already paying for two children from a previous marriage?

Yes, it is possible, but the court will study the circumstances as a whole and involve interested parties - other recipients of payments - in the case so that their rights are not violated. The payer’s earnings and marital status are also taken into account.

Two years ago I collected ¼ of my ex-husband’s salary for the child. Now I understand that there is not enough money. Is it possible to change the payment method from equity to lump sum?

Yes, if it can be proven that ¼ of the payer’s earnings is not enough to support the minor. Receipts for tuition fees and checks can be used as evidence. The presence of official work for the alimony obligee does not prevent the collection of payments in the TDS.

If the monthly allowance per child decreases in the region, will the amount of alimony be reduced?

No. If the minimum monthly wage decreases, they cannot reduce the amount of payments for a minor; indexation is simply not carried out. The amounts remain the same.

My husband and I want to draw up an agreement on the payment of alimony. Is it possible to indicate that he will pay 1 PM for a common child?

Yes. The main thing is that the amount of payments should be no less than the amount that could be recovered through the court (Article 103 of the RF IC).

Changing the collection method

• the alimony worker does not have a stable income paid on a regular basis;
• the payer receives remuneration in kind or in the currency of another state;
• the alimony provider does not have the full basic amount to withhold;
• calculation in shares creates difficulties or essentially violates the interests of the parties.

When establishing the amount of payments, the court relies on the maximum possible preservation of the previous level of material benefits for the child, taking into account the financial condition of the participants in the changed circumstances. If the ex-husband pays alimony below the subsistence level, then the court, in order to bring the amount to the children's regional minimum, must prove the level of excess of the child's consumer basket over this indicator based on the participation of the other half in ensuring the quality of life.

The following must be attached as supporting documents:

• receipts and checks for expenses for preschool institutions, including meals and stay;
• payment documents confirming the costs of treatment and recovery;
• concluded contracts and paid bills for expenses for intellectual and physical development, including amateur art clubs, music and sports specialized schools;
• a compiled estimate of expenses for the child in the foreseeable future, indicating the feasibility and motivational factor.

If the recipient wishes to establish the amount of alimony not lower than the subsistence level, and the monetary equivalent of the child’s consumer basket clearly lags behind half the value, then it is advisable for the claimant to provide documentary evidence of an objective decrease in his income in relation to upcoming expenses. The court accepts as evidence:

• certificates indicating a drop in wages or a decrease in income from business activities;
• certificates from the employment fund about loss of work for reasons independent of the recipient’s personality and being in unemployed status;
• extracts from medical records indicating that the recipient has an illness that requires removal from work, significant expenses for drug therapy and rehabilitation;
• documentary evidence that the claimant has other dependents requiring support (the appearance of children, the need to care for a sick family member, etc.);
• the price list of children's goods, which has changed upward with a stable, unchanged income.

What to do if alimony is below the subsistence level is to prepare maximum arguments regarding the need for compliance due to the paramount importance for the child and the inability to cope on their own due to a change in financial and family situation for independent reasons.