Claim for exemption from payment of alimony (sample) 2021, exemption from payment of arrears of alimony

How to get rid of alimony debt?

Often, due to certain life circumstances, alimony is not paid to the recipient in a timely manner, and arrears arise.

Expert opinion

Stanislav Evseev

Lawyer. Experience 12 years. Specialization: civil, family, inheritance law.

The amount of debt is determined in different ways, depending on the method of establishing alimony obligations:

If an agreement on the payment of alimony was concluded - based on the amount of alimony established by the agreement;
If alimony was collected on the basis of a judicial act as a percentage of the debtor’s earnings, the debt is calculated by the bailiff based on the information he has about the debtor’s income.

In the absence of such information, the calculation is based on the average salary for the billing period in the Russian Federation. If alimony was collected in a fixed amount of money, the amount of debt is calculated based on this amount.

Important! According to Art. 113 of the Family Code of the Russian Federation, the period of debt formation is essentially not limited by time frame. It is not subject to the general statute of limitations (3 years), and funds are recovered for the entire period during which the alimony obligee had to pay alimony.

Unfortunately, in most cases, debt arises through the fault of the debtor, who does not want to pay alimony, hides income, place of residence, work, etc. However, sometimes the reason for non-payment can be the difficult life circumstances of the alimony obligee. The law provides for cases of exemption of a debtor from payment of arrears of alimony.

FAQ

Q: What should I indicate if the mother receives child support and the child lives with me?

A: Demand that the child’s place of residence be determined with the father and that you be exempted from paying child support. You can also ask for the recovery of maintenance from the mother.

Q: Will the father continue to withhold child support if he has given his consent to the adoption of the child?

A: The other man will be considered the father from the moment the court orders the adoption. Only after this can you file a statement of claim asking to be exempted from payments from the date of adoption.

Q: If the court refuses to waive alimony, can I challenge it?

A: Yes, you will have 1 month from the date of the decision to file an appeal. You can also apply for a review of a court decision that has entered into legal force due to newly discovered or new circumstances - this should be done within 3 months from the date of their discovery or appearance.

Exemption from alimony debt: grounds

The procedure and grounds for exemption from payment of arrears of alimony are provided for in Article 114 of the Family Code of the Russian Federation.

In total, the law establishes two ways of such release:

By mutual agreement of the parties. This method is possible in all cases, except those in which alimony is collected for the maintenance of minor children.
By the tribunal's decision. In the case where alimony is paid for the maintenance of a minor, filing a claim in court is the only way to get rid of the alimony debt.

For complete or partial exemption from debt payment, two circumstances must simultaneously occur:

Failure to pay alimony occurred due to the illness of this person or for other valid reasons. Compulsory military service by a person obligated to pay alimony and the incapacity of the alimony payer are considered such valid reasons. The law does not establish a list of valid reasons, and in each specific case the conclusion about the valid reasons is made by the court based on an examination of the circumstances of the case.
The financial and family situation of the debtor does not make it possible to repay the resulting debt. Financial difficulties may arise for the debtor, for example, due to the birth of children, serious illness of close relatives, inability for good reason to get a job, etc. The list of such cases is also open and allows the court to make a decision taking into account all the circumstances of each specific case.

More information about the recognition of certain reasons as valid can be read in the Review of judicial practice in cases related to the collection of alimony for minor children, as well as for disabled adult children” (approved by the Presidium of the Supreme Court of the Russian Federation on May 13, 2015).

Important! Even if all the above circumstances are present, it should be borne in mind that the court will be guided primarily by the interests of the minor who should receive alimony. If, for example, the child does not have a special need for additional support, there will be a greater chance of being exempt from child support.

Answers to common questions

In conclusion, I will provide answers to a number of popular questions on the topic under consideration:

How to create a claim online?

A statement of claim can be created through special Internet services or through online forms on specialized websites. This is quite convenient: you do not need to worry about building the structure of the claim - the service algorithm will generate it automatically, based on the initial data you entered.

Attention! On some services, before entering data, you are required to pay a court fee.

Attention! On some services, the service for creating claims is paid and costs on average 200-300 rubles.

What style should you use to file a claim?

The statement of claim is drawn up in a formal legal style. Main Feature:

Correct use of procedural and legal terminology.
Lack of colloquial expressions.
Logical sequence.
Conciseness does not come at the expense of clarity.

Regarding brevity, there is a technical standard for the text volume of the claim - it should not exceed 3 A4 pages. Of course, there are claims of much greater volume, but this is permissible only in special cases.

When is it possible to refuse a claim?

It is the refusal that is possible in case of significant violations of procedural rules: for example, in case of inconsistency of jurisdiction, in case of other available court decisions on this issue, etc.

And if the procedural violations are not very significant (for example, various types of errors in the claim, an incomplete set of mandatory documentation, etc.), then the claim is left without progress or returned to the plaintiff for correction/addition.

How many copies of the claim are required?

According to procedural rules, the number of copies of the claim must correspond to the number of parties in the case. At the same time, the court is also a party to the case. If the claim is filed in person, then one copy is endorsed by the office and returned to the plaintiff.

The number of copies of the attached documentation depends on its relationship to a particular aspect of the case.

Is it worth hiring a lawyer to file a claim?

It's worth it, although it's not necessary. Even if you have a good understanding of the law, a legal practitioner will not only double-check the application for various errors, but also give additional recommendations that may affect the successful outcome of the case.

The lawyer will also help with collecting the documentation attached to the claim, which will significantly ease your worries, minimize possible bureaucratic difficulties, and save time and nerves.

Can a court partially release alimony debt?

Yes, the court is unlimited in its choice of decision-making methods. He can release the payer from alimony debt either in full or in part.

Example. Plaintiff Ivanov, who pays alimony in the amount of 10 thousand rubles monthly, filed a lawsuit to reduce the amount of debt from 220 thousand to 100 thousand, indicating that in recent months he had been in a difficult financial situation due to the serious illness of his mother, as well as the cause of his accident. As a result of the accident, Ivanov was diagnosed with disability group 3 and was forced to quit his job for health reasons.

In court, the fact that funds were spent on the mother’s treatment was not confirmed, but the court excluded the accrued alimony for the period of Ivanov’s treatment and before he was hired for a new job, and for only 4 months. The judge rejected the rest of the claim.

In this case, the court considered all the circumstances, examining when the payer had the opportunity to pay alimony and when he did not. The judge made his own assessment of what was happening and, based on the totality of evidence, made a decision.

In a claim for release from alimony debt, the court may:

satisfy the claim in full, releasing the payer from the entire amount of the debt;
relieve debt partially by reducing debt;
deny the claim completely.

State fee when submitting an application

When submitting an application to the court for exemption from paying alimony, you must pay a state fee. For this category of cases, the amount of state duty is determined based on the cost of the claim . In accordance with Art. 91 of the Code of Civil Procedure of the Russian Federation, it is calculated from the amount of alimony payments that are payable for one year.

Having determined the cost of the claim, you can calculate the amount of the state duty. In the Tax Code of the Russian Federation (TC RF) in Art. 333.19 sets out in detail the procedure for determining state fees for different categories of cases. According to the provisions of this article, if the price of the claim is up to 20,000 rubles, then the state duty will be 4% of this amount . However, the law contains a limitation - the amount of the duty must be at least 400 rubles .

If the price of the claim is in the range from 20,001 rubles to 100,000 rubles, then the state duty is calculated differently: the mandatory payment is 800 rubles, plus 3% of the amount exceeding 20,000 rubles, and so on.

So, for example, if the price of the claim is 15,000 rubles , then since this amount falls into the category of up to 20,000 rubles, then the state duty should be 4% of 15,000 rubles. The calculation is as follows: 15,000 * 4 turns out to be 60,000, and then divide 60,000 by 100 = 600. Thus, in this case, the state duty will be 600 rubles .

In any case, when determining the amount of the state fee on an application for exemption from alimony payments, you must be guided by paragraph 1 of part 1 of Art. 333.19 Tax Code of the Russian Federation. You can pay the state fee either in cash or by bank transfer.

The state fee is paid before filing an application with the court, since the payment receipt is a mandatory document. If a receipt for payment is not provided, the court may return the statement of claim.

In practice, there are cases when the plaintiff cannot pay the state fee due to difficult financial situation. In this situation, he can apply to the court with a request to grant him a deferment or installment plan for payment. Based on such a petition, the court may grant a deferment or installment plan for a period not exceeding one year.

In accordance with the legislation of our country, there are certain categories of citizens who may be exempt from paying state duty. These categories in accordance with the Tax Code of the Russian Federation include:

heroes of the Great Patriotic War;
heroes of the Soviet Union;
heroes of the Russian Federation;
disabled people of the first and second groups.

To confirm the possibility of classifying the plaintiff as a preferential category, it is necessary to provide a supporting document .

How to correctly draw up a claim for release from alimony debt, form and content

The requirements for the statement of claim are contained in Art. 131 of the Civil Procedure Code of the Russian Federation. They apply to all claims without exception, but the requirements directly for the application for exemption from alimony debt have already been formed by the legal practice of experienced lawyers.

Thus, the claim must contain:

the name of the court in which it is filed;
Full name of the plaintiff, his contact information (place of residence, postal address, contact telephone number);
Full name of the defendant and his legal representative, his contact details,
information about the person in whose favor alimony is paid (full name, date of birth, place of residence);
the amount of alimony debt and the periods during which it arose;
the circumstances on which the plaintiff bases his claims. In this case, it is necessary to describe in detail what is the reason for the alimony debt, and why it is valid, as well as highlight the circumstances in connection with which this debt cannot be repaid. It should also contain links to evidence confirming this. These circumstances must exist for each period of debt incurrence!
a direct request to the court (in this case, a demand to release fully or partially from payment of arrears of alimony for a specific period);
list of documents attached to the statement of claim (see below);
date, signature of the plaintiff.

Expert opinion

Noskov Georgy

Lawyer. Experience 12 years. Specialization: civil, family, inheritance law.

REMEMBER! The more accurately and in detail the contact details of the parties are indicated in the claim, the more effective the court’s actions will be in notifying them of the date and time of the court hearing, and the faster the case will be considered! If one of the parties has a different registered address from the place of actual residence, both should be indicated in the statement of claim, as well as all known contact numbers. If the court fails to notify the parties in a timely manner, the court hearing will be postponed and the consideration of the case will be delayed.

Sample claim for release from alimony debt

Drawing up a claim on your own is fraught with annoying errors and inaccuracies, which at best will lead to the document being left without movement, and at worst – complications in court.

It is better to entrust the drafting of a claim to a competent lawyer for family disputes, or at least get a free consultation before drafting it.

For those who believe in themselves, we offer a standard sample claim for exemption from alimony debt, which will still have to be seriously modified.

Documents attached to the statement of claim

Article 132 of the Civil Procedure Code of the Russian Federation also contains a list of documents that must be attached to the statement of claim.

No.	Proof	Comments
1	Copies of the claim according to the number of persons participating in the case	In this case, the claim is drawn up in three copies: one for the court, one for the defendant (i.e. the person in whose favor alimony is paid, or his legal representative), and one for the plaintiff. The last copy is necessary because When filing a claim in court, it will be marked with a mark indicating its acceptance indicating a specific date.
2	Document confirming payment of state duty	In this case, it is a bank receipt. The amount of the state duty depends on the size of the debt from which the plaintiff asks to be released. As a rule, on the websites of courts there are special services that calculate the state duty.
3	Documents confirming the circumstances on which the plaintiff bases his claims, also submitted to the court according to the number of persons participating in the case (except for the plaintiff himself)	These include: Health certificates; Documents about various difficult life circumstances; Information about income, etc.

This is the main evidence confirming the plaintiff’s demand for release from debt.

Important! The Civil Procedure Code enshrines the principle of adversarial parties in civil proceedings, which is that each party must independently prove the circumstances on which it bases its claims. The court is not obliged to collect documents that the plaintiff can submit himself. Therefore, it is necessary to carefully prepare for filing a claim by collecting all possible documents necessary to satisfy the claim.

Documents confirming the validity of the reason for the debt may be:

medical certificates about health status, conclusions of medical commissions about disability, being on treatment, etc.;
military registration documents (during military service);
other documents, depending on the reason for non-payment of alimony (for example, confirming that the debtor is in prison);

Documents confirming the impossibility of repaying the debt may include:

birth certificates of children, marriage, documents confirming adoption, guardianship or trusteeship, presence of dependents;
also medical documents about the deterioration of the health of the plaintiff or his close relatives, conclusions of medical commissions establishing disability, etc.;
documents confirming the amount of income: certificates from the place of work, from the pension fund, employment service, social security authorities,
other documents indicating a deterioration in the financial situation (for example, information about the loss of property - decisions of the Ministry of Internal Affairs, judicial acts).

In addition, the plaintiff must contact the bailiff conducting the enforcement proceedings and obtain certificates about the amount of debt to attach them to the statement of claim.

How to file a claim in court

Submitting a claim to court means it is submitted to the court office. There are several ways to file a lawsuit:

Submit in person.
Submit through an authorized representative.
Send by certified or registered mail.
Send via the Internet.

Attention! Keep the receipt for sending the claim by mail, and also use additional postal services (receipt receipt, list of attachments).

How to file a lawsuit online

From the beginning of 2021, you can file a claim in federal courts of general jurisdiction online, in accordance with Part 1.1 of Art. 3 of the Code of Civil Procedure of the Russian Federation - through the Internet portal of the automated system of the Russian Federation “GAS Justice”. The necessary conditions:

Registration in the ESIA system.
Availability of an enhanced qualified electronic signature.
Availability in court of the technical ability to receive an electronic statement of claim.

Authorization of the required level on the State Automated System “Justice” portal is conveniently carried out through the State Services portal.

Attention! When entering data into the forms of the State Automated System “Justice” service, among other things, the TIN is required, which is not necessary in the usual case of filing a claim. This requirement was confirmed by the RF Armed Forces in 2018.

Watch the video instructions on filing an electronic claim:

What happens after filing a claim in court and what to expect

The movement of a filed claim at the initial stage involves checking its compliance with procedural norms. Through a special court records management program, a statement of claim from the court office is submitted to a judge for consideration. According to Part 1 of Art. 133 of the Code of Civil Procedure of the Russian Federation, the judge is obliged to consider the issue of accepting the claim for proceedings within 5 days.

In this case, the judge’s decision may be to make a determination:

On the initiation of legal proceedings on the claim.
About the return of the claim.
On leaving the claim without progress.

If the judge has issued a ruling to initiate legal proceedings, then the next day or on the same day copies of the ruling are sent to the parties to the case. This document contains important information: necessary actions of the parties, deadlines, meeting dates, contact information, etc.

Next, hearings on the case take place.

Attention! According to Part 1 of Art. 154 of the Code of Civil Procedure of the Russian Federation, the period for consideration of such cases is 2 months (with the possibility of extension for 1 month, according to Part 6 of Article 154).

At the stage of acceptance of the claim by the court, the plaintiff needs to promptly monitor the change in his status - this will speed up the overall process time

Where to file a claim

Cases regarding exemption from alimony debt belong to the category of civil cases, and specifically to family property disputes.

Such cases fall under the jurisdiction of magistrates. The court district of the magistrate in which the claim must be filed is determined based on the defendant’s place of residence.

During the trial, the plaintiff can also present additional evidence confirming his position, clarify the claims in terms of release periods and a specific amount. It is also possible to conclude a settlement agreement with the defendant upon reaching an agreement on the procedure and timing of debt repayment.

What forms and samples will help in drawing up a claim?

The lawyer will take into account all the circumstances of the case, indicate them in the claim and help in collecting a package of documents.
You can use claim templates, usually posted on the information stand in the courthouse, or ask the office for printed forms.

It may be more convenient for you to download templates for statements of claim for exemption from paying child support and for exemption from paying alimony debt, and fill them out taking into account your case:

Form of claim for exemption from payment of alimony (DOK, 31 KB).
Sample statement of claim for exemption from alimony payments (DOK, 32 KB).
Form of claim for exemption from alimony due to a change in the financial (family) situation of the payer (DOK, 19 KB).
Sample statement of claim for exemption from alimony due to a change in the financial (family) situation of the payer (DOK, 21 KB).
Sample statement of claim for a change in the child’s place of residence, collection of alimony from the mother and exemption from payment of previously collected alimony (DOK, 21 KB).
Form of claim to challenge paternity and exemption from payment of alimony (DOK, 19 KB).
Statement of claim for exemption from payment of arrears of alimony (DOK, 20 KB).
Template for a statement of claim for termination of an alimony agreement (DOK, 15 KB).

Crib

Exemption from child support and arrears of payments is possible in court.
When drawing up a statement of claim, you should take into account the provisions of Art. 131 and 132 of the Code of Civil Procedure of the Russian Federation.
Before filing a claim, it is necessary to determine the price of the claim and the amount of the state duty, pay the fee and send a copy of the claim with attachments to the defendant.
An application is submitted to the district (city) court at the place of residence of the alimony claimant.

On what grounds are you going to file a claim for exemption from alimony? Will you draw up the application yourself or seek help from a lawyer/lawyer?

Special cases in legal practice

Some payers appeal to the fact that they have been deprived of parental rights. However, under current legal provisions this is not a basis for exemption from alimony. Elimination of rights to raise children applies to the following categories of citizens:

malicious evasion of payment of maintenance;
child abuse both physically and psychologically;
citizens who have been repeatedly convicted of criminal offenses.

Thus, deprivation of parenting rights does not automatically eliminate payment obligations. The parent cannot apply for meetings or take educational measures, but is obliged to provide financial support. In addition, the fact that the former spouse re-entered the marital union, but the children were not adopted, is not a basis.

Comparison of alimony payments in Russia and the USA

Attachments to the application

In accordance with civil procedure legislation, any application filed in court contains attachments. The list of these applications is indicated in the statement of claim itself.

For a claim for exemption from alimony payments. A copy of the statement of claim is required . There will be two copies. One remains in court, the other is sent to the defendant. This applies to all applications - they all must be in duplicate. The following should also be attached to the application:

a copy of the plaintiff's passport;
a copy of the marriage certificate;
a copy of the divorce certificate.

You will need additional documents for the child - that is:

his birth certificate (copy).

copy of the court decision . in accordance with which the person has alimony obligations;
and a copy of the writ of execution . on the basis of which payments are made.

Exemption from alimony payments and preparation of a statement of claim