Cancellation of child support, exemption from alimony payments

Is it possible to cancel alimony?

The possibility of canceling alimony is provided for by the Family Code and Resolution of the Plenum of the Armed Forces of the Russian Federation No. 56 dated December 27, 2017. The payer’s lack of a permanent place of work and disability are not considered an absolute basis for cancellation. The Resolution directly states that courts are obliged to take into account the balance of interests of the payer and recipient.

The relationships that became the basis for calculating payments and the financial situation of the recipient are taken into account. If it has improved significantly, then the payer has the right to demand mandatory cancellation of alimony obligations.

Note: Deprivation of parental rights to a child does not relieve one from the obligation to support him. Moreover, the requirement to pay alimony can be simultaneously filed in a claim for deprivation of parental rights or restrictions on communication with the child.

In Part 1 of Art. 119 of the Family Code that alimony can be canceled or its amount can be changed if there is a significant deterioration in the borrower’s financial situation or a change in his family status. Courts must also take into account other interests of the parties.

The specification of the provisions of the RF IC is given in Resolution of the Plenum No. 56. The document states that if an adult recipient of alimony is transferred to a state or municipal institution providing medical and social services and stays there on a permanent basis, then the court has the right to investigate his further need for alimony. If it turns out that the recipient fully satisfies his needs for treatment, care, and nutrition at the expense of the state, then alimony may be cancelled.

Exemption from payment is possible only under significantly changed circumstances, including due to a serious (including fatal) illness of the payer, the birth of a disabled child, or the relatively stable financial situation of other recipients. Each situation is considered individually. There are no specific, exact criteria at what level of financial situation or in what cases the debtor can be released from current alimony payments and from debt.

Debt cancellation

The collection of alimony and the calculation of arrears on it ceases from the date the judge makes a decision to terminate payments.

After receiving a judge's decision canceling the obligation, the payer is no longer required to make regular payments. In order for the bailiffs to be able to close enforcement proceedings for previously collected alimony, the payer needs to obtain a writ of execution and submit it to the FSSP unit.

We are talking about situations where non-payment of alimony occurred due to the illness of the payer or other valid reasons, and his financial and marital status excludes the possibility of repaying the resulting debt.

In what cases is alimony canceled?

Art. 119 RF IC and Art. 120 of the RF IC provide for the possibility of canceling alimony in a number of cases.

In what cases payments are canceled depends on the specific circumstances. In any situation, cancellation requires the initiative of the citizen obliged to pay, and an application for cancellation is submitted exclusively to the court. The court has the right to release the payer, but is not obliged to do so. The issue remains solely at the discretion of the court - after examining the provided evidence base, and taking into account the legitimate interests of the parties.

Possibility of such an event

A court order is a simplified way of collecting alimony, since the magistrate, responding to the request of the plaintiff, within five days without the presence of the parties, draws up an order that has the force of a writ of execution.

The defendant can appeal this decision; he is given 10 days to do so. If his claim is satisfied, the case regarding the assignment of alimony will be heard before the parties to the conflict.

If the allotted period was missed, but still less than a year has passed since the order was recognized, the payer can file a claim to cancel it, proving that he did not do this earlier for good reasons.

The claim must indicate:

• Court name;
• Personal data;
• The circumstances that prompted the applicant to go to court;
• The date the payer received the alimony order;
• Claims and their justification;
• Documentary evidence of the payer’s objections;
• Requirements;
• Signature;
• Date of filing the claim.

There is no state fee for this type of application.

Termination of alimony payments

According to the RF IC – Art. 120 payment of alimony is terminated:

• if the child is 18 years old or has received full legal capacity before this age through emancipation - he works officially, got married, started a business;
• in the event of the death of one of the parties to the legal relationship;
• if the child was adopted;
• if a disabled adult child has regained his ability to work and no longer needs financial assistance;

Important! An adopted child is also entitled to child support if one of the parents still retains the right to raise him. Cancellation of alimony after the adoption of a child is allowed only in cases where both parents have given consent to the adoption or have been deprived of parental rights.

Cancellation of penalties

A penalty is a special type of fine for violating the deadline for paying alimony. Her appointment can be canceled in court for a number of reasons:

• Complex illness;
• Employer enterprise crisis;
• Difficulties in the family, etc.

If the payer manages to prove his innocence of the delay, then part of the debt and alimony penalty will be canceled. Otherwise, you will have to pay their total amount.

So, there are many reasons to cancel or reduce alimony. The main thing is that these circumstances are confirmed.

How to cancel child support in court?

If there is no debt, the statement of claim must be submitted to the magistrate at the location of the defendant.

If a citizen requests release from the mortgage to pay alimony and the amount of the debt is more than 50 thousand rubles, then the claim will have to be filed in the district court at the place of residence of the defendant, who is the child’s second parent or other legal representative.

Order and procedure

An exclusively judicial procedure for cancellation is provided. You can try to negotiate with the recipient and conclude an alimony agreement for a smaller amount or providing for a different method of security - for example, the transfer of property as alimony (real estate, securities or other valuables).

In other cases, the initiator of the cancellation will have to act in court. The procedure includes:

• determination of all circumstances and collection of documents;
• filing a claim;
• participation in litigation;
• execution of a court decision. He can cancel the current obligation, but oblige him to pay the remaining mortgage. Or reduce alimony debt without exemption from paying the rest of it.

Financial support for children is the responsibility of parents. Cancellation is possible only in exceptional cases and while maintaining the previous level of maintenance for the child who has the right to receive alimony. The plaintiff will have to prove that he has grounds for canceling or at least reducing monthly payments, for example, upon the birth of a second or subsequent child.

Documentation

The following must be attached to the claim:

• a copy of the claim to the defendant;
• a copy of the plaintiff's passport;
• a copy of the alimony agreement (if it is disputed);
• a copy of the court decision (if it is relevant to the case);
• information about the plaintiff’s income;
• the circumstances on which the plaintiff bases his claim - medical documents, birth certificates of children, medical documents for other children.
• receipt of payment of state duty - required when canceling alimony pledge. The amount depends on the cost of the claim.

The plaintiff may attach to the statement of claim any documents that, in his opinion, are relevant to the case. Already during the trial, the court may recognize them as admissible evidence or ignore them as information not relevant to the case.

Costs and fees

If the plaintiff independently draws up documents and files a claim on his own, then his expenses may be limited to state fees and, possibly, transportation costs - for trips to the court at the plaintiff’s place of residence - if the participants in the process live in different cities and (or) regions. If the claims are satisfied, then the costs are subject to recovery from the defendant.

The fee is payable:

• in a fixed amount of 300 rubles, if the issue is not related to exemption from debt payment;
• in an amount proportional to the cost of the claim, if the question is raised about release not only from the current obligation, but also from the existing debt.

Additionally, you will need to pay for notary services if a representative of the plaintiff is involved in the trial or if notarization of copies of documents is required. There may be expenses for the services of a qualified lawyer, whose remuneration is discussed on an individual basis. It may consist of a fixed amount and a “success fee” paid in case of victory. A lawyer usually cannot promise a 100% outcome of a case in favor of the client, but the promised reward for victory is an excellent incentive for a specialist to perform high-quality work.

Grounds for reducing alimony

1. The appearance in the family of the alimony payer of a person whom he, on the basis of the law, must support (disabled relatives, children from another marriage and other dependents, a reduction in alimony at the birth of a second child). In our opinion, this is the most common case of going to court with the issue under consideration, because the birth of a child in a new marriage entails a number of expenses and the need to support one more, and maybe more than one, child. The amount assigned by the court or the established percentage of income will not be automatically revised without filing a corresponding application. It is important to initially establish alimony in a similar manner by order, agreement or court decision. Parents living together and having a registered marriage will not affect this in any way. Alimony can also be established during marriage. Only then go to court. Otherwise, the claim will be rejected.
2. A decrease in the income of the alimony payer, as a rule, refers to situations where alimony obligations are not tied to wages, since a decrease in wages already reduces the alimony burden, because with a constant and regular income, a percentage is assigned, which is calculated from the payment.
3. The payer of alimony is disabled in groups 1-2 or became disabled after alimony payments were assigned (the basis for reducing alimony is an increase in expenses for one’s own maintenance and treatment, which increases due to the acquisition of disability). In the trial itself, it is necessary to additionally emphasize that as a result of illness, the list of positions for which it is possible to find employment is limited for you. Moreover, this narrow range of jobs is low-paid.
4. Often the child himself, for whom alimony payments are established, is able to provide for himself no worse than the alimony payer himself, so a reduction in the amount of alimony can occur when the child reaches the age of 16 years, he is employed, when he begins to receive a stable income, which is enough for his maintenance and education.
5. The emergence of property (inheritance) for the recipient of alimony, which began to generate considerable income, increasing the level of security and well-being.
6. The list is not closed; you can learn more about the reasons for starting to act towards reducing alimony obligations during a consultation with our lawyer who deals with these issues. Indeed, in the case of alimony, the court must assess the property status of both parents, including the recipient of alimony. Yes, the law defines the obligation to pay alimony, however, its amount is not clearly defined. There are only some frameworks (conventions). Therefore, everything will be decided in a private adversarial trial.

SETTLEMENT AGREEMENT: We are ready to try to resolve your family conflict on the issue of reducing the amount of child support peacefully; this area of ​​​​the lawyer’s activity is called mediation, within the framework of which an agreement is reached between the parties that suits the conditions of all participants. If it is not possible to resolve a dispute about reducing child support amicably between the payer of alimony and the recipient, then you have to go to court with an application and resolve this problem in court.

Grounds for which the amount of alimony payments cannot be reduced:

• when the alimony payer refers to a significant increase in the income of the parent, the new family in which the child lives.
• the acquisition of property by the recipient of alimony, which should generate income, but is not used to obtain it, and, therefore, does not provide additional opportunities for its owner to improve their well-being.

Statement of claim for cancellation of alimony

The claim is filed according to the rules of Art. 131-135 Code of Civil Procedure of the Russian Federation. It provides a mandatory structure. The claim must be submitted in writing. It is necessary to prepare 2 copies - one for the defendant and one for the court. If third parties are involved in the case - for example, guardianship and trusteeship authorities, then they will also need a copy of the claim.

The claim can be filed in person or through a legal representative. The application must be dated and signed by the applicant or his representative - if the latter has the appropriate power of attorney.

How to write correctly

The main requirements for writing are accuracy, consistency, and logic.

According to Art. 131 of the Code of Civil Procedure of the Russian Federation, the statement of claim must indicate:

• name of the court – level of instance and address;
• information about the parties: full name plaintiff, defendant – place of their registration or location, contact details;
• information about the plaintiff’s representative (if available);
• the cost of the claim, if the claims are subject to assessment (for example, in a claim for cancellation of debt);
• what exactly were the rights of the plaintiff and the claims against the defendant violated;
• circumstances, the applicant bases his claims.

The current situation should be described in detail. Separately, it should be mentioned that the plaintiff makes demands for the abolition of alimony not due to unwillingness to help the child, but due to a difficult situation or due to the lack of legal grounds for help (for example, the child’s early legal capacity).

If a claim is filed against an adult child, then it is necessary to indicate the grounds on which the plaintiff may not pay child support, for example, if the child beat his father, robbed his apartment and other situations.

The claim should clearly indicate the demands against the defendant, as well as provide the necessary calculations, for example, for current debt.

Sample claim

There is no standard sample application for alimony cancellation. A competent lawyer will help with his advice when preparing a claim for exemption from alimony payments, but below we provide one of the simple sample applications.

Expert opinion

Stanislav Evseev

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

The above is only an example text and in reality, in each situation the content of the claim will be individual. Consult with the specialists of our website completely free of charge and they will help you determine all the significant circumstances for the case and correctly draw up a statement of claim.

FAQ

Q: How long does it take for a court decision on a claim to cancel alimony to come into force?

A: From the moment the court decision is issued until it comes into force, 30 days pass, after which you can submit an application to the FSSP to cancel the penalty and terminate enforcement proceedings.

Q: Can the defendant challenge the claim for cancellation of alimony and within what time frame?

A: The defendant has the right to file a counterclaim immediately after receiving a copy of the statement of claim from you. At the meeting, the court will consider both claims and make a decision based on the information and evidence provided in these documents. The defendant can also appeal the decision before the expiration of 30 days in the appellate instance or by filing a cassation appeal within 6 months after the decision enters into force.

Q: What should I include in the application if the child lives with the father, and the mother continues to receive child support ordered by the court?

A: In the statement of claim, ask the court to stop paying alimony in favor of the defendant due to the child’s transfer to permanent residence with you. You can ask for alimony from the mother to support the child until he reaches adulthood.

Q: Is it possible to apply for the cancellation of court-ordered alimony if the child was adopted by another person?

A: Yes, since the new father/mother’s child support obligations begin from the moment the court order on adoption is issued. In the statement of claim, ask the court to cancel alimony from the date of adoption.

Q: The couple underwent artificial insemination and are listed as the parents of the child on the birth certificate. Is it possible to challenge paternity and cancel child support?

A: A person who has given his consent in writing to the use of artificial insemination or implantation of an embryo cannot count on termination of alimony obligations. An exception is convincing evidence that you did not give consent, it was obtained fraudulently, or the child was entered on the birth certificate under the threat of violence or blackmail.

Q: Is it possible to return child support paid incorrectly?

A: Child support is not refundable unless you prove that the other parent committed illegal actions (forgery, deception, forgery of a writ of execution, etc.) and that he understood the illegality of his actions. If there is such evidence, file a claim against the recipient of alimony for a minor child.

Q: The biological father wrote a waiver of the child during the divorce, but the alimony was not cancelled. What is this connected with?

A: Deprivation of parental rights does not relieve one from the obligation to support a child. You can submit an application for termination of child support obligations when appointing an adoptive parent for your child.

Q: The ex-wife remarried and the child is supported by her new husband. Why did the court not satisfy the demands for alimony cancellation?

A: A spouse's remarriage without her new husband adopting a child is not a reason to stop paying alimony. You are obliged to provide financially for the child until he comes of age or until the child acquires full legal capacity (marriage, official employment).

Q: Is it possible to cancel alimony if the court ordered alimony to be paid to a pregnant wife, but the spouse is not sure of paternity?

A: Since a record of the child’s parents is made only after the birth of the child, all disputes related to establishing the origin of children are considered by the court only after the birth of the child. The court will refuse you, but after the birth of the child you have the right to re-file the claim.

Q: Is it possible to cancel an adoption and refuse child support for the adopted child? divorced

A: You can try, but the court has the right to oblige the former adoptive parent to pay funds for the maintenance of the child in the manner established by Art. 81 IC RF.