How to reduce alimony penalties

What is a penalty for alimony payments?

Penalty refers to the amount of the fine accrued for late payments. By analogy, alimony penalties are monetary sanctions that are imposed on the alimony payer for late regular payments. The person at fault will have to pay for each day of such delay. The amount of the penalty for alimony is determined as 0.1% for each day of delayed payment (Part 2 of Article 115 of the RF IC).

The calculated amount of the penalty for alimony is fixed in monetary terms, however, the alimony payer has the opportunity to reduce or completely cancel the fine. This depends on how the penalty was formed, and on the degree of guilt of the alimony payer, and on his current financial and social condition.

In 2021, the legislation has undergone a number of changes, and now debtors can reduce the amount of the alimony penalty if they prove that it was formed for good reasons. This is stated in Article 114 of the RF IC.

Moreover, the concept of a disproportionate fine has now emerged. This means that the amount of the penalty for alimony can be reduced if the amount of the payment is disproportionate to the consequences of such non-payment (Article 115 of the RF IC). The judge will decide to reduce the amount of the alimony penalty on an individual basis, guided by specific conditions and circumstances.

Formulas for calculating penalties for non-payment

When filing a claim or during pre-trial correspondence with the payer, it is necessary to calculate the due penalty. There are several rules, namely :

The amount of the penalty is determined for each month.
For the subsequent billing period, the debt for the entire previous period is included along with the penalty.

To carry out the calculation yourself, you need to apply the following formula H = C × D × 0.5/100, where :

N – size of the penalty;
C – amount of alimony debt for the billing month;
D – number of overdue days.

Having calculated the penalty, you need to determine the total debt. Its size for the billing month is calculated using the following formula C=C1+H1+C2+H2+…+Cn+Hn, where:

С1, С2, Сn – debt for payments for each overdue month of previous periods;
Н1, Н2, Нn – penalty for the corresponding overdue month.

Thus, the second rule is observed and the penalty for the previous payment period is calculated as a penalty for the current billing period. It turns out that if the amount of payments for the financial support of the child is constant, then the amount of the penalty increases every month.

General information about calculating alimony penalties using a calculator is described in a special material. Recommended reading.

You can also apply another formula , which allows you to immediately calculate the total debt, including the amount of the penalty. It looks like this: Co=0.05×(C1×Dn+C2×Dn-1+ C2×Dn-2+ …+ Cn×D1), where:

С1, С2, Сn – debt for payments for each overdue month of previous periods;
Дn – number of days for the entire debt period;
Dn-1 – number of days for the entire debt period except the first month;
Dn-2 – number of days for the entire debt period except the first two months;
D1 – number of days in the last month.

Using the above formulas, the plaintiff can independently calculate the amount of debt for alimony obligations, including the penalty. If an error occurs, the court will independently carry out the calculations, the plaintiff will have to agree with their result and change the requirements by filing a corresponding petition.

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 .

Algorithm of actions

As stated above, such disputes do not fall into the category of simple ones. The ambiguous position of the Supreme Court and the Constitutional Court of the Russian Federation, practicing family lawyers and judges leads to contradictory decisions. Therefore, the first stage includes :

Collection of all documents related to the dispute;
Seeking advice from practicing family lawyers;
Additional collection of documents in accordance with the recommendations received;
Pre-trial dispute resolution.

As a rule, for consultation you need to submit an agreement between the spouses on the amount and procedure for paying alimony or a court decision. Other documents are written demands or correspondence between the parties that relate to alimony payments, challenging or recognizing paternity, requests from the payer to reduce the amount of payments, etc.

For example, if the payment of funds is terminated unilaterally on the basis of non-confirmation of paternity, documents about this must be submitted to a lawyer during the consultation. It is not at all necessary that the recipient of the money is deprived of the rights to alimony, including a penalty for the debt incurred.

The pre-trial procedure for resolving a dispute helps to collect additional evidence. Correspondence, a documented fact of dishonest behavior of the payer, deprives him of the opportunity to hope for a lenient attitude from the court.

Let's find out who should calculate the penalty for alimony by reading a special article prepared by the editors of our website.

At the second stage it is necessary:

File a claim.
Attach to it the documents collected pre-trial, including the calculation of the penalty for the debt.
Send a package of documents to the court.
Defend the position set forth in the claim yourself or hire a lawyer to do so.

On the one hand, carefully prepared pre-trial work simplifies the process of filing a claim in court. On the other hand, competent defense implies, among other things, a quick response to the defendant’s actions and timely filing of the necessary petitions. This requires experience and special knowledge. Persons who are not professionally involved in jurisprudence have neither one nor the other.

If you are not satisfied with the court decision, you will have to prepare an appeal and cassation. In this case, the second stage will be delayed; more about this below.

If you are interested in the issue of drawing up an application for alimony penalties, we recommend that you read this article.

The third stage is to implement the court decision . The writ of execution is sent to the bailiffs, who take measures to collect the alimony debt and the calculated penalty. In case of significant debt, the payer is charged 50% of his earnings as repayment if he is not able to pay the debts immediately.

In some cases, it is impossible to find the alimony payer on your own, so you will have to contact law enforcement agencies, look for him through the police, tax authorities.

Bailiffs regularly need to remind themselves and build interaction with the special group that deals with alimony payers.

Malicious evaders from responsibilities for the material maintenance of children are placed under control by the Border Service of the Russian Federation, prohibiting them from leaving the country. In some cases, criminal liability is provided (Article 157 of the Criminal Code of the Russian Federation).

What should the payer do to reduce the fine?

In order to reduce the penalty for alimony, the payer must act in the same way as the claimant - file a lawsuit to reduce the amount of the penalty. The procedure is as follows:

The payer draws up an application to reduce the penalty and collects the necessary evidence documenting valid reasons for non-payment.
The application is sent to the court. The application itself must reflect not only the reason for the alimony penalty, but also decipher how and why it was formed.
The plaintiff collects all documents confirming his current difficult financial situation or complete insolvency.

If the legal proceedings due to the payment of a penalty were initiated by the recipient of alimony, then the defendant needs to prepare an objection, which will list all the arguments confirming his innocence.

In cases where the verdict on the collection of alimony penalties has already been announced, the defendant has the right to challenge it in the district court, that is, to file an appeal or a reasoned complaint. A decision that has already entered into force can be challenged in a magistrate’s court. This can only be done for objective valid reasons or in the event of force majeure. Moreover, in this case, only the amount of alimony can be reduced, since the penalty for alimony, already collected by a court decision, cannot be reduced.

Judicial practice and examples

In judicial practice, there are various cases related to non-payment of alimony and the accrual of penalties. Below are some examples:

An example of collecting a penalty in full

Citizen I.'s income per month is 10,000 rubles; according to the law, his daughter, who has not reached the age of 18, has the right to ¼ of her father's earnings in the amount of 2,500 rubles. Citizen I. paid alimony for 6 months, then lost his job, as a result he incurred a debt of 7,500 rubles for 3 months. Along with a penalty of 2,300 rubles, he will have to pay 9,800 rubles.

An example of a penalty reduction

Citizen A. filed a lawsuit against her ex-husband V. in order to recover 350,600 rubles as a penalty for late alimony payments in the amount of 230,000 rubles. After considering the case, the court decided to reduce the amount of the penalty to 150,000 rubles due to the fact that for the last few months citizen V. had been undergoing treatment in the hospital, which did not allow him to fulfill his obligations to pay alimony. In addition, arithmetic errors were made in the calculations.

How to prepare a statement to court

In the application for a reduction in the penalty, it is necessary to clearly describe why the alimony debt arose and why the payer is not able to pay it off. The text indicates the amount of payment and the established deadlines, the method of collection, and describes the level of income of the alimony payer. The application to reduce the amount of the penalty itself does not have a unified form, but there is certain information that must be reflected in the application:

name of the judicial authority;
last name, first name, patronymic and contact information of the plaintiff;
last name, first name, patronymic and contact information of the defendant;
the essence of the statement of claim;
the reason for the formation of alimony debt;
justification of the payer’s position;
requirement to reduce the amount of the penalty;
date of preparation and signature of the applicant.

When going to court to reduce alimony penalties, you must pay a state fee of 150 rubles (Article 333.19 of the Tax Code of the Russian Federation).

The period for consideration of a claim in the magistrate's court takes about one month. The decision comes into force at the same time - within one month. The statute of limitations does not apply in this case.

In order for the judge to make a decision in favor of the applicant and reduce the amount of alimony penalties, it is better to present in court as much evidence as possible of the absence of guilt or malice in the actions of the payer. Such evidence can only be official documents - certificates of disability and health status, decisions of the medical commission, dismissal orders and copies of the work record book, loan agreements. The birth of children in a new marriage can also be considered a valid reason for financial difficulties. To do this, you can provide copies of marriage and birth certificates.

How to challenge a decision on a penalty

The penalty can only be recovered in court. This allows the debtor to appeal the decision in order to completely cancel the penalties, or to delay the process of forced deduction. You can appeal a judicial act through higher authorities, i.e. in appeal, cassation and supervisory procedures.

Where to contact

The procedure for filing complaints against the cancellation of court decisions on penalties depends on where the case was heard at first instance. Legal proceedings with a claim price of up to 50 thousand rubles. carried out through justices of the peace. Therefore, the court of appeal for the debtor will be the district or city court.

If the amount of claims exceeds 50 thousand rubles, a decision on the case is made by a court of general jurisdiction. Therefore, an appeal must be filed with a regional or regional court. The final authority in the dispute will be the Supreme Court of the Russian Federation, which considers complaints by way of supervision after the defendant has gone through an appeal and cassation.

In any case of challenge, you cannot do without the support of a lawyer or attorney. The judicial system of the Russian Federation initially gives priority to the interests of the family and the child, therefore, if there is a proven fact of arrears in alimony payments, it is difficult to obtain relief from the penalty. To determine the grounds for filing a complaint, please take legal advice on our website.

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What documents are needed

Cancellation of a court decision is possible only with convincing and significant evidence supported by documents. Depending on the reasons for violation of the terms of alimony payments and the grounds for appeal, you can refer to the following documents:

certificates confirming delays in wages, pensions, scholarships or other sources of income from which alimony is paid;
documents confirming compliance with the deadlines for transferring funds, if the delay was caused by violations of the law by bailiffs or the bank;
counter-calculation of the amount of the claim, if the plaintiff used an inflated percentage of the penalty, incorrectly determined the period of delay in payments, or made arithmetic errors;
payment documents confirming partial fulfillment of the obligation to transfer alimony, if such payments are not taken into account by the claimant;
materials confirming the validity of the reasons for the delay (for example, a certificate of disability, sick leave for temporary incapacity for work).

In order for the court to take into account the financial or family situation, you can refer to the increase in the number of dependents. To do this, you can submit birth certificates of children, other forms and forms.

State duty

When filing complaints against court decisions, the defendant will have to pay a fee. Its amount will be 50% of the amount of the fee for filing a non-property claim, i.e. 150 rub. If the complaint remains unsatisfied, the defendant will have to pay the legal costs of the claimant, including the fee transferred by him for the proceedings in the first instance.

How to file an objection to a claim

The defendant has the right to file objections to the statement of claim for the recovery of a penalty in the first instance. This document is drawn up in any form. Since the outcome of the case may depend on the arguments and validity of objections to the collection of a penalty, it is advisable to entrust the preparation of this form to an experienced lawyer.

In objections you can refer to:

to incorrect calculation of the amount of debt on the part of the bailiff service and the plaintiff;
on the disproportionality of the penalty and alimony arrears;
for the presence of valid reasons for non-payment, or for the absence of guilt in violating payment terms;
on judicial practice in similar cases, if it allows reducing the amount of claims;
to other circumstances relevant to the consideration of the case.

It is advisable to indicate in your objections that you are ready to begin repaying the debt and have already restored current payments. This will be positively received by the court when assessing evidence and making a decision.

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Sample application

On our website you can apply for a reduction in the penalty. This form has already been checked by the best lawyers in the field of family law, but we recommend using their help when filling out the template. You can submit a petition directly at the court hearing, or by sending it in advance by mail.

Procedure and terms for consideration of the claim

The amount of the penalty can be reduced only by taking an active part in the legal process, receiving summons in a timely manner and drawing up documents with the help of a lawyer. Please note that violation of the obligation to pay alimony may result not only in the collection of penalties, but also in administrative or criminal liability. FSSP employees have the right to initiate such cases if they reveal the malicious nature of non-payment in favor of children or disabled parents.

The period for consideration of the case in the first instance according to the Code of Civil Procedure of the Russian Federation is 2 months. If the claim was submitted to a magistrate, the process must be completed within a month. The defendant will have 30 days from the date of the final decision to file an appeal.

If the judicial act comes into force, the claimant will submit a writ of execution to the FSSP. Forced deduction for penalties will be carried out simultaneously with the repayment of debt and current alimony. If the child has already reached the age of majority at the time the penalty is collected, current payments will not have to be transferred.

What consequences await the defaulter of the penalty?

If the alimony payer evades collection of the penalty, the recipient has every right to contact the Federal Bailiff Service (FSSP) to initiate enforcement proceedings. Bailiffs will collect the debt in a forced form.

If the debt exceeds the amount of ten thousand rubles, then the SSP will suspend the driver’s license. The bailiff service can restrict travel abroad, seize the payer’s property and bring the debtor to administrative liability for failure to pay the required security for a minor child (Article 5.35.1 of the Code of Administrative Offenses of the Russian Federation). The last resort is to bring the defaulter to criminal liability under Art. 157 of the Criminal Code of the Russian Federation.

Sources:

On exemption from payment of arrears of alimony

About the amount of the penalty in 2021

On liability for late payment of alimony

About the amount of state duty

On bringing to administrative responsibility for non-payment of alimony

On criminal prosecution for non-payment of child support

How it was: the situation before the amendments to the Family Code

Until August 10, 2021, a day of delay cost the debtor 0.5% of the principal amount. As a result, a year of default cost more than 180%. This amount is comparable to interest on microloans. The goal, of course, was much more plausible: this is how the legislator tried to solve the problem of massive evasion of alimony payments. However, the result was only huge debts for alimony payments.

The situation became even more complicated after the Supreme Court actually banned the reduction of the penalty. As a result, the Constitutional Court tried to solve the problem, nevertheless allowing a reduction in the alimony penalty in Resolution No. 23-P dated October 6, 2017.

In this regard, changes were made to the law.

How to file a claim

After all calculations have been made, a claim is filed to recover the penalty. The statement of claim is drawn up according to standard rules:

in the header of the claim, indicate to which court the petition is being filed, and the contact information of the plaintiff and defendant;
the descriptive part of the claim contains a brief but understandable statement of the circumstances of what happened: the grounds for payment of alimony, how long there has been no payment, the amount of payments;
what the plaintiff is asking the court to do;
list of attached documents.