The Supreme Court taught how to calculate alimony penalties

Collecting alimony penalties is a complex procedure, let’s understand its intricacies together.

Our alimony lawyer will help you figure it out and get alimony through the court, if you voluntarily fail to achieve what is required by law - to collect a penalty as a measure of the debtor’s responsibility.

What is a penalty for alimony?

From a legal point of view, a penalty is a sum of money paid by the debtor to the creditor in the event of non-fulfillment or improper fulfillment of obligations. This wording is specified in Art. 330 Civil Code of the Russian Federation.

Collection of the penalty is carried out voluntarily, when the debtor does not deny his guilt. In this case, he can independently transfer the money to the other party in order to avoid litigation.

To avoid troubles, it is recommended to keep bank receipts so that if problems arise, you will be able to confirm the voluntary fulfillment of obligations in court. If payment is made in cash, it is necessary to obtain a receipt from the claimant.

There is another way to claim penalties - through the court. The initiator is the party receiving the service, in the case of alimony - money. When it comes to collecting penalties for child support payments, the plaintiffs are usually women, since they are the ones who remain with minors.

Grounds and conditions for collecting penalties

The main condition for collecting a penalty is that the alimony payment is late by at least 1 day. The deadlines for paying money for the maintenance of minors are indicated in writs of execution (IL), alimony agreements or court orders.

For example, payments should have been received on January 12, 2018, but the claimant received them on January 15, 2018; for the specified period, he has the right to claim a penalty.

Other recovery conditions:

1. Established child support obligations. The debtor must pay alimony by agreement, IL or court order. If the recipient has not previously gone to court or has not drawn up an agreement with the payer at the notary, it is not a penalty that is collected, but alimony for the past period - a maximum of 3 years preceding the date of filing the claim with the court.
2. Existence of debt. It begins to form on the day following the day when the payment was supposed to arrive.

Important! The law allows for alimony agreements to be drawn up between spouses or former spouses. They must think through its content independently, focusing on the provisions of Chapter. 16 IC RF. When the document does not indicate that a penalty will be collected if there is a delay, it is problematic to obtain it even in court.

Specific terms and amounts of alimony debt for going to court are not established by law. A claim can be filed even after a week, but the amount of payments will be minimal - no more than 500 rubles. depending on the amount of alimony.

It is recommended to file a claim after 5-6 months from the date of non-payment: in this case, it will be possible to withhold a large amount from the payer. In some cases, it exceeds the amount of the principal debt.

What are the grounds for reducing the penalty?

How and for what reasons the alimony penalty can be reduced is indicated in Article 114 of the Family Code of the Russian Federation. The alimony payer must prove in court that the delay was not due to his fault, but for good reasons. The following circumstances are recognized as legal grounds for a judge to reduce the amount of alimony penalties:

• poor health affecting the citizen’s ability to work, long-term illness and recovery period;
• disability;
• loss of a job, temporary unemployment not due to the fault of the alimony payer, but due to the actions of the employer;
• a significant decrease in profitability;
• disproportionality of alimony penalties;
• temporary military duty (stay in the army).

If the income of the alimony payer decreases sharply, but still exceeds the regional subsistence level, this is not a reason to reduce the penalty. Just as deprivation of work due to termination of an employment contract at one’s own request will not be a valid reason for reducing the alimony fine.

The same circumstances include deliberate understatement of income, deliberate evasion of payment of alimony penalties, and delay in searching for a job.

A petition to reduce the amount of the alimony penalty can also be submitted on the following grounds:

• military and terrorist actions from which the payer suffered;
• natural and man-made disasters.

The basis for reducing the penalty is the proven fault of third parties - if the delay in alimony payments was due to the fault of the employer, then fines for the delay will not be assessed or collected.

If, when handing over the writ of execution to the employer, the alimony recipient made a mistake in indicating the details for transferring the payment, and the delay in payments occurred precisely for this reason, then the court will refuse to initiate legal proceedings for the plaintiff to collect a penalty for alimony, since the payer is not to blame for the formation of the debt in this case .

Amount of penalty for alimony

In 2021, Federal Law No. 224 came into force, according to which, by order of the President of the Russian Federation, the amount of the penalty was reduced from 0.5 to 0.1% of the debt amount for each day of delay.
These changes are beneficial to debtors, but not beneficial to recipients. The reason for the publication of the law was the accrual of huge alimony debts, which cannot be collected due to the expiration of the statute of limitations, the payers lack of official work or property ownership.

Thanks to the Federal Law, those obligated for alimony have the opportunity to be released from the obligation to pay the penalty in whole or in part, if it is proven that the debt was not caused by their fault and they have valid reasons that do not allow them to pay off the debt.

Reducing the amount of the penalty

There are two ways to apply for a reduction in the amount of the penalty or exemption from its payment - by filing an objection to the claim or a counterclaim. This is possible if there are grounds specified in Art. 114 RF IC:

• lack of guilt;
• valid reasons for non-payment.

Good reasons should be understood as factors for which payments were not made regardless of the payer’s wishes: conscription for military service, long-term treatment for a serious illness, etc.

Collection of alimony debt after 18 years: procedure and deadlines

How to reduce the amount of alimony penalties?

How is it paid?

The penalty is paid by court decision or on the basis of an agreement concluded between the parents.

To receive payment of alimony penalties, you must obtain a writ of execution and present it to the FSSP for collection.

If for some reason the recipient does not apply for collection, then no payment is made.

Important! The fact of receiving a decision does not entail the actual transfer of money. If the payer has no source of income and property, the actual transfer of the penalty may be delayed indefinitely.

Calculation of penalties for alimony

If alimony is ordered by the court and the writ of execution is submitted to the FSSP, the claimant must apply to the bailiff for a ruling on the calculation of the debt.

The calculation itself is carried out as follows:

1. The number of days of delay is determined.
2. The payer's earnings for the above period are established. When this is not possible, the calculation is based on the average earnings in the country. The absence of an official place of work is not grounds for exemption from payment.
3. The amount of the principal debt is summed up and then multiplied by 0.1%. The result obtained reflects the amount of the penalty for 1 day of delay.
4. The amount of the penalty for 1 day is multiplied by the number of days of non-payment.

When collecting a penalty for late alimony in a fixed amount of money, the calculation is carried out taking into account the indexation performed.

Important! In addition to the penalty and the principal debt, the defaulter is charged an enforcement fee of 7% for each debt (Article 112 of Federal Law No. 229).

Alimony penalty calculator

Calculator from Dogovor-Yurist.Ru

An example of calculating alimony penalties as a share of salary

Yudin S.V. is obliged to pay alimony for one child according to the writ of execution, the amount of payments is 25% of the salary. The average salary of a payer is 30,000 rubles. There was a delay in alimony obligations of 953 days.

30,000 x 25% = 7,500 rub. payable monthly.

7500 x 32 (months) = 240,000 rubles. – the total amount of alimony debt for the period of delay.

240,000 x 0.1% = 240 rubles. – penalty for 1 day of non-payment.

240 x 953 = 228,720 rub. – penalty for the entire period.

228,720 + 240,000 = 468,720 rubles. – the total amount of debt.

An example of calculating alimony penalties in a fixed amount

Musov O.P. was ordered to pay alimony for the maintenance of two children, the amount is 17,000 rubles. monthly. He was 91 days overdue on his payment.

17,000 x 3 (months of non-payment) = 51,000 rubles. – total amount of debt.

51,000 x 0.1% = 51 rub. – penalties for 1 day of non-payment.

51 x 91 = 4,641 rub. – the total amount of the penalty.

51,000 + 4,641 = 55,641 rubles. – the total amount of debt.

For comparison, consider an example where the calculation is carried out at the old rate - 0.5% of the debt amount. The conditions are similar.

51,000 x 0.5% = 255 rubles. – penalty for delay of one day.

255 x 91 = 23,205 rub. – the amount of the penalty.

23,205 + 51,000 = 74,205 rubles. – total payable (principal debt + penalty).

As can be seen from the example, reducing the amount of the penalty at the legislative level allowed debtors to avoid more significant penalties.

Responsibility for non-payment of penalties

The alimony recipient may demand not only payment of a penalty, but also compensation for losses incurred due to lack of timely payments. To do this, it is necessary to present evidence and demand compensation through the court.

Example . You can submit a check for prepayment of clothes or equipment for a child, the purchase of which did not take place due to a violation of child support obligations. You can also recover additional costs incurred for travel to court, the FSSP department, if such actions are associated with significant costs.

Otherwise, the defaulter of alimony penalties is subject to the same standards of liability as malicious evasion of child support.

• Art. 5.35.1 Code of Administrative Offenses of the Russian Federation - for prosecution for the first detected fact of malicious evasion;
• Art. 157 of the Criminal Code of the Russian Federation - for prosecution after the commission of an administrative offense and ongoing violation of the rights of the child.

Attention! A fine for non-payment may be imposed even if the defendant does not have a permanent job.

In this case, the following may be applied to the debtor:

• recovery from property;
• ban on leaving the country;
• restriction on the right to drive a vehicle.

The order of collection of penalties for alimony

The legislation contains the concept of “priority of payments”, meaning the degree of importance of various contributions of citizens withheld in the presence of several obligations.
Alimony is a priority payment. The same applies to the penalty, but it will be withheld secondarily after the main alimony debt has been claimed. Here you need to take into account Art. 99 Federal Law No. 229, where the total amount of deductions under the executive document cannot exceed 50%.

For example, if alimony is 25%, the remaining 25% may be withheld to pay off the debt. When collecting payments for three children in the amount of 50%, it is allowed to increase the established threshold to 70%, and then 50% will be collected to cover the principal debt, and the remaining 20% ​​will be a penalty.

Alimony and penalties for it, compensation for harm to health, compensation for moral damage are in first place in order of priority. These are followed by other payments:

• collection of royalties, severance pay;
• taxes and other government fees;
• claims of creditors and other payments.

The order of priority should be followed by the organization at the place of employment of payers, as well as by banks, if citizens’ earnings pass through them. If there are insufficient funds in the account, alimony is transferred first, and then the remaining contributions.

The corresponding note on the mandatory transfer of money for the maintenance of minors is placed in the payment order submitted by accountants to financial institutions.

How does the court hearing work?

During the trial, the judge reviews the documents provided and hears the arguments of each party. Based on the results of the meeting, the court either satisfies the claim (in whole or in part) or refuses to satisfy the plaintiff’s claims.

If the court satisfies the claim, the result of the meeting will be a court decision and a writ of execution. They will indicate the amount to be collected. A month after the court decision is made, it will enter into legal force. After this, the plaintiff will need to submit the writ of execution to the bailiff conducting the proceedings in the case.

From this moment on, the debtor will be charged not only with arrears of alimony, but also with a penalty. When the alimony worker begins making payments, the funds will first be used to pay off interest (penalties), and only then to pay the principal debt for alimony.

If the debtor continues to evade maintenance, the bailiffs will hold him accountable for non-payment of alimony.

Collection of penalties for alimony

The step-by-step collection procedure looks like this:

1. The claimant submits an application for execution of a decree on debt settlement to the bailiff who opened enforcement proceedings (IP) initially after presentation of the IL.
2. The bailiff issues the order within 10 calendar days. You must receive it in person, or when applying, indicate delivery by Russian Post in your application.
3. A statement of claim is drawn up, then, with the accompanying documentation, it is submitted to the magistrate’s court at the place of residence of the defendant or plaintiff.
4. The judge initiates proceedings within 5 days, and the parties are notified of the date of the first court hearing. The defendant is sent a notice along with a copy of the claim.
5. The case is being prepared for trial.
6. A hearing is being held. As a result, a decision is made on partial or full satisfaction of the claims or refusal to satisfy them.

Important! If the court decision does not suit the plaintiff or defendant, before it enters into legal force, they can appeal it to the appellate instance. After this, an appeal is made by filing a cassation appeal.

Jurisdiction

According to the Resolution of the Plenum of the Armed Forces of the Russian Federation dated December 26, 207, a claim for the recovery of alimony penalties is filed in the magistrate’s court at the registered address of the defendant or plaintiff.

The specific judicial body is determined by the plaintiff.

Application for calculation of alimony debt

The application form can be downloaded on the website of the regional division of the FSSP or on our website.

To fill out you will need the following information:

• name of the FSSP;
• Full name, address and telephone number of the claimant;
• date and number of the IL issued earlier;
• Full name of the bailiff;
• Full name, place of registration of the debtor and the child for whom alimony was collected;
• the date of the last payments made to those liable for alimony;
• the specific period for which it is necessary to determine the amount of debt;
• request to determine the amount of debt;
• date of compilation and signature;
• list of attached documentation.

Sample statement of claim:

After submitting the application, the claimant is given a notice indicating the deadline for the resolution to be ready. Subsequently, it is sent to the debtor at the initiative of the bailiff.

Contents of the statement of claim

Samples of statements of claim are not established for citizens, but when filing, it is important to comply with the content requirements.

The claim includes the following information:

• name of the judicial authority;
• Full name, registration addresses of the plaintiff and defendant;
• information from the IL issued earlier;
• period of non-payment of alimony;
• on what basis were payments collected for the child (court order, IL, agreement, etc.);
• the amount of debt on alimony payments;
• the amount of the penalty;
• information about the child;
• number of the resolution on debt settlement;
• a list of attached documents;
• demand for collection of debt and penalties for alimony;
• number and signature.

Sample and form of claim

In the requirements section, the payment of the enforcement fee is not indicated - its collection is within the competence of the bailiffs.

List of attached documents

When filing a claim in court, you will need documentation confirming the validity of the claims:

• resolution on debt settlement;
• the plaintiff's passport and the child's birth certificate. If there are several children, certificates of all are provided;
• IL, order or agreement on the basis of which alimony is collected.

Upon acceptance, copies are made of documents and the originals are given to the owner.

State duty amount

In accordance with current legislation, plaintiffs wishing to collect alimony or penalties for it are exempt from paying state duty. Subsequently, it is recovered from the defendants. For one child you will have to pay 150 rubles.

Arbitrage practice

In cases of recovery of penalties, judicial practice is ambiguous. In most cases, the courts accept the position of the plaintiffs, but when drawing up a decision, they are guided not only by the interests of the children, but also by the justification of the claims, as well as the financial situation of the parties.

During the preparation of the case for proceedings, the defendant may file an objection with a request to reduce the amount of the penalty or to exempt it from payment completely. This is possible if there are legal grounds. Partial exemption is also permitted.

Limitation period for collecting alimony penalties

The penalty is collected at any time, even if at the time of filing the claim the child for whom alimony was paid was 18 years old. The general statute of limitations under the Civil Code of the Russian Federation is 3 years, but this does not apply to the collection of payments for children and penalties for them.

What it looks like in practice:

According to the IL, the man was obliged to transfer money for the maintenance of one child in June 2012. The amount of alimony is 10,000 rubles. the last payment was received in January 2015, and in August 2021 the payer’s son turned 18 years old, which is the basis for exemption from child support obligations.

In February 2021, the woman went to court to recover penalties for 36 months.

The principal debt is accrued for the period from February 2015 to July and part of August 2021, and the penalty is calculated from the moment of the last payment until the date of execution of the settlement order. Number of days – 1096. How everything is calculated:

10,000 x 16 (months of non-payment) = 160,000 rubles. - main debt.

160,000 x 0.1% = 160 rubles. – penalty for the day of non-payment.

160 x 1096 = 175,360 rub. – penalty in general.

175,360 + 160,000 = 335,360 rub. – total payment.

Learn more about the statute of limitations for collecting alimony penalties.

Lawyer's answers to questions about collecting penalties

How is the penalty collected if the debt is paid gradually?

If the bailiff's order has already been drawn up, the penalty is collected in the amount determined from the debt specified in it, even if after filing the claim the debtor began to pay it.

When a new debt is formed, another resolution is drawn up, and it is collected under a separate IL.

If the alimony obligee pays part of the assigned alimony, he also develops a debt for the actually unpaid part. For example, when depositing 5,000 rubles. from the established amount of 12,000 rubles. the penalty will be charged at 7,000 rubles.

Is it possible to collect a penalty if the alimony debt is fully repaid?

If the debt is repaid before the creditor goes to court, there is an opportunity to claim a penalty. To do this, it is enough to contact the bailiff for a ruling, then file a statement of claim. Voluntary repayment of a debt does not exempt you from paying a penalty.

Is it possible to claim a penalty if the child is already 18 years old?

Once a child reaches the age of majority, a fine can be collected at any time. Statutes of limitation do not apply.

Is a penalty collected if the debtor does not work?

Lack of employment does not exempt from alimony obligations, and penalties are collected according to the algorithm presented above. However, in this case, the average earnings in the country are used for calculation, since it is not possible to determine the payer’s income.

Is a penalty collected if the writ of execution was withdrawn or not presented?

Judicial practice on this issue is ambiguous. According to the Definition of the Armed Forces of the Russian Federation, if the claimant does not present the IL within 3 years or revokes the document, the debt obligations for the debtor are canceled. Motive - to collect a penalty, it is necessary to initiate an individual entrepreneur, and a court decision alone is not enough.

Can the penalty exceed the amount of the principal debt?

Yes maybe. It all depends on the amount of alimony and the duration of the delay. Only deductions from wages are limited - no more than 50, and in some cases - 70%.

Is the payment of a penalty a child support obligation?

Alimony obligations are listed in Chapter. 13 of the RF IC, and the penalty is not included in them. It is a measure of liability for failure to fulfill these obligations.

How is a penalty collected in case of bankruptcy of the payer?

Collection of penalties in case of bankruptcy of the debtor is carried out in accordance with Federal Law No. 229 and Federal Law No. 127-FZ dated December 26, 2002. To repay debt obligations, the property of the defaulter is sold by bailiffs on electronic platforms, the proceeds are divided between creditors and the claimant. First of all, alimony obligations and penalties are paid off.

Collection procedure

The process depends on whether writs of execution have been filed or not. If yes, then the recipient has the right to contact the bailiff with an application to calculate the penalty.

If the documents have not yet been submitted, the claimant is obliged to:

• Draw up an application to open enforcement proceedings;
• The original writ of execution must be attached to the application.

After the opening of enforcement proceedings, the claimant may apply for settlement of the debt. But, of course, to avoid any unpleasant surprises, it is recommended to make the calculation yourself before submitting the documents, as described above.

The official calculation together with a copy and calculation of the writ of execution must be attached to the statement of claim for recovery submitted to the magistrate.