Conditions for debt collection after 18 years
In accordance with paragraph 2 of Art. 120 of the Family Code, a child’s 18th birthday is grounds for termination of parental support obligations. This only means that awarded alimony payments stop accruing after reaching adulthood. But it does not cancel the outstanding alimony debt. If it arose due to the fault of the payer, then it continues to be collected even after reaching adulthood, since it has no statute of limitations and no deadline for the past period for which it can be collected.
The amount of the debt is approved by the bailiff, therefore, in order to collect it even after 18 years, a number of conditions must be met:
- the deduction was carried out on the basis of a writ of execution or a notarized agreement with the alimony provider;
- the debt was caused by the payer;
- the writ of execution until the age of majority was for compulsory execution in the district OSB and continues to be there;
- by order of the bailiff, the debt incurred at the time of majority was calculated;
- the payer has a permanent source of income or liquid property that can be foreclosed on.
Note!
The controversial issue is who is the debt collector:
- on the one hand, the provisions of Art. 80 of the Family Code are interpreted in such a way that alimony is money for the maintenance of a child, and therefore it is he who, after reaching the age of majority, is the owner of the debt and the proper collector;
- on the other hand, Art. 80 of the IC guarantees children not parental money, but the right to full maintenance. Therefore, arrears of alimony are compensation for the second parent of the child, who alone supports the common child and bears the expenses.
How to find out the amount of alimony debt
It is necessary for both the claimant and the payer to know the amount of alimony debt. The amount of debt is calculated by the bailiff.
You can check the existence of alimony debt, as well as find out its exact amount, in the following ways:
- via the Internet (online): on the official website of the FSSP;
- on the State Services portal - this method can only be used by the debtor through his personal account on the website;
- through special applications on the social networks VKontakte and Odnoklassniki.
More detailed information about checking alimony debt can be found in the article “How to find out alimony debt.”
Even if the payer did not know about the debt, the bailiffs can apply a number of exacting measures to him. That is why it is recommended not only to make periodic payments on time, but also to check the existence of debt using one of the indicated methods.
How to collect arrears of alimony after 18 years of age
The above question plays a role in determining the further procedure for collecting alimony debt. Law enforcement practice was guided by the position: if a child has not received child support in full before reaching adulthood, after 18 years of age he has the right to implement it independently. In this case, the recipient of alimony who had reached the age of majority had to go to court to replace the claimant and obtain a new writ of execution.
Note!
However, in March 2021, the Supreme Court of the Russian Federation, by ruling in case No. 58-KG17-19, clarified that repayment of the debt is of a compensatory nature for the claimant-second parent. Therefore, the right to demand debt collection is not lost even after the common child comes of age. This means that replacement of the claimant is not required; the writ of execution continues to be in effect.
Through bailiffs
Debt collection should continue in the same order as before. At the moment of majority, the bailiffs calculate the debt and stop accruing it in the future. However, the collection itself continues, but in the general manner. Alimony debt is converted into ordinary civil debt in the form of a fixed amount, to withhold which employees of the territorial OSP can:
- foreclose on wages and other regular income;
- put him and his property on the wanted list;
- seize and describe the property, funds in accounts, real estate of the alimony;
- restrict his right to travel abroad and take other enforcement measures provided for by law.
Withholdings are made until the debt is actually repaid in full. Only in this case the bailiffs have the right to complete the enforcement proceedings.
Through the court
If, in violation of the rules described above, the bailiffs terminated the proceedings due to reaching the age of majority, despite the existence of a debt, the collector is recommended to appeal such actions in court. For this, in accordance with the requirements of Art. 128 of the law on enforcement proceedings, the interested claimant files an administrative claim in the district court with a demand to cancel the decision and oblige the bailiff to reopen the enforcement proceedings.
Note!
An example of resolving such an issue in favor of the claimant with a description of the arguments and substantiation of the position is the Decision of the Central District Court of Khabarovsk in case No. 2a-5215/18.
In a separate civil claim, the claimant may demand that the alimony payer pay a penalty in the amount of 0.1% of the amount of debt for each day of delay, guided by Art. 115 RF IC.
Efficiency of alternative collection methods
Since changes were made to the legislation, collection agencies are forced to act within strictly established limits. In most cases, such organizations work with bank debts by purchasing the debt from a credit institution. It is important to understand that the right to collect alimony by law cannot be transferred to third parties, since this is the exclusive right of minor children .
In addition, the powers of collectors are limited to verbal warnings; such organizations are not vested with the right of forced collection, therefore, the effectiveness of their work is minimal.
Note! Only bailiffs have the right to apply measures determined by Federal Law No. 229-FZ to the debtor. Today, the only effective way to collect alimony debt remains forced collection by authorized government officials.
Debt release
In accordance with paragraph 2 of Art. 114 of the SK, an alimony worker who has incurred a debt may, in court, demand a partial reduction or complete cancellation of the debt. This is possible if his family or financial situation does not allow him to repay the debt: he also has other dependents, including from a new marriage. In this case, the debt was created for good reasons due to:
- long-term and serious illness;
- completing compulsory military service;
- incapacity for work due to illness or injury;
- long-term residence of the child with the alimony payer.
Liability of the debtor if the debt is not paid
Article 115 of the Family Code of the Russian Federation provides for the following methods of liability for an unscrupulous alimony payer:
- inclusion in the text of the notarial agreement of individual clauses stipulating the parent’s responsibility for non-payment or non-compliance with the alimony payment regime, for example, penalties or any other means of punishment;
- recovery of the amount of the penalty, or losses incurred in connection with non-payment of alimony, if the payer systematically evades payment of maintenance by court decision. A certificate about the amount of debt accumulated by the debtor can be requested from the bailiff who is in charge of the proceedings.
In addition, extreme measures may be applied - such as criminal liability under Art. 157 of the Criminal Code of the Russian Federation. But for this, certain conditions must be present.
- Firstly, malicious evasion of alimony payments, implying administrative liability under Art. 5.35.1 Code of Administrative Offenses of the Russian Federation and failure to fulfill obligations within a year from the date of engagement;
- Secondly, a significant amount of debt and a long period of evasion, which makes it possible to bring the debtor to criminal liability.
If there is a crime under Article 157 of the Criminal Code of the Russian Federation, a persistent defaulter faces punishment up to actual imprisonment for alimony.
Debt collection within the framework of enforcement proceedings is not limited by time limits. Moreover, any useful information about the debtor and his property will significantly speed up the collection process.
Good relations with your ex-spouse are not a reason to forgive debts. Remember, an oral agreement and payment of alimony without a writ of execution does not entail any legal consequences for the parent. Therefore, the sooner the writ of execution is presented to the bailiffs for execution, the greater the chances of receiving decent maintenance for your child.
Collection of alimony
After the start of the proceedings, the bailiff calls the payer to an appointment to explain the circumstances of the case and personally serve the decision. If he has a debt, the bailiff informs him of the need to repay it before a certain date. The specialist also warns the debtor about the possibility of applying administrative measures against him and initiating a criminal case for malicious evasion of alimony.
The easiest way is to collect money from a working person. In this case, the documents are sent to the place of work, and on their basis, the accounting department makes salary deductions in the required amount.
If a person does not work, but he has an official source of income - a scholarship, pension, unemployment benefit, etc., the writ of execution is sent to the body making payments.
For non-working citizens, alimony is usually awarded in a fixed amount. The bailiff finds out the payer's ability to pay it. If the debtor does not have the funds to repay the debt, additional sources of income are identified - rental of real estate, bank deposits and securities, unofficial income from work performed or services provided, etc. We recommend reading: how to collect alimony if your husband does not officially work?
When no sources of income are identified, the bailiff has the right to seize the property to collect the debt. The payer is given time to repay the debt. If this is not done in a timely manner, the seized property will be put up for auction. The proceeds go towards paying alimony and accumulated penalties.
If the bailiff does not want to collect the debt
Often, in busy departments of the FSSP, collectors are faced with the outright reluctance of bailiffs to take measures to collect the debt. They seized the accounts, revealed the lack of property and calmed down, planning only to bring the person to criminal responsibility.
Nor work to identify additional sources of income. Neither the imposition of restrictions nor control over the debtor's expenses - all this the bailiffs refuse to do, contributing to an increase in the size of the debt.
In this case, it is easier to appeal the actions of the bailiff, demanding that his actions be declared illegal. The complaint (administrative claim) is filed with the district court at the place where the enforcement proceedings were opened.
An approximate sample is posted below, but it is better to consult with a lawyer regarding its preparation.
Any legal action requires qualified assistance from a lawyer or, at a minimum, competent advice.
Who has the right to apply for child support?
Children under 18 years of age or older have the right to receive alimony if they are not fully able to work due to age or for other reasons, that is, they cannot provide for themselves.
Not only the natural parent, but also the adoptive parent, custodian or guardian can submit documents for child support. In any case, this must be the person with whom the child lives together and who is responsible for raising and providing for the minor. Sometimes some of the children stay with their mother, others with their father. Then the court imposes child support on the parent who is better off.
What other plaintiffs can submit documents for alimony: educational, social service or health care institutions that support and raise the child. These funds can be deposited into an account and 50% of bank charges can be retained to support the recipient of alimony.
How to make the bailiff work?
Why doesn’t society see the desired result of the work of a large army of bailiffs? Partly because there are many more defaulters than bailiffs. It is impossible to assign an official to each of them. The second probable reason is serious staff turnover due to relatively low salaries with a heavy workload. Bailiffs who have started working again do not have time to gain experience to effectively conduct production.
Another reason for the poor performance of bailiffs is the reluctance to conscientiously perform their functions and banal bribery. There are no official statistics on these phenomena, but there are real life facts when a malicious defaulter “interests” officials - bailiffs, so that they turn a blind eye to blatant injustice and continue to do nothing. Or worse, they “lost” the debt collection case in order to force the plaintiff to give up the opportunity to receive money, stop wasting time on it and making moral efforts.
And yet, one should not think that it is impossible to fight the laziness and official irresponsibility of bailiffs. You should look in the legislative field for tips on how to get bailiffs to work and get results.
- In the application to initiate enforcement proceedings, it is necessary to indicate more information about the possible location of the debtor if he is hiding from subpoenas and visits by the bailiff.
- Report information about a change in place of work, about the availability and acquisition of property, including information received from unofficial persons - acquaintances, friends - after asking permission in advance to be able to refer to them in a conversation with bailiffs.
- Submit petitions to seize the property and funds of the debtor, if the bailiff does not do this on his own initiative; a petition for a travel ban or a search for the defendant; on the accrual of a penalty on the resulting amount of debt simultaneously with the calculation of the unpaid amount.
- You can file a complaint about the inactivity of bailiffs to higher authorities, that is, the head of the bailiff service department, which must be followed by a response with the listed measures taken within ten days.
- If the highest authority cannot force its subordinates to work, the complaint can be sent to the district prosecutor's office, which most often leads to increased activity and achievement of positive results.
In the event of a deliberate or inadvertent loss of the case, it is necessary to obtain an appropriate explanation in writing from the bailiff and apply to the court with an application for the issuance of a duplicate writ of execution.
Procedure for initiating proceedings
The procedure for collecting alimony begins with the submission of an application and a writ of execution to the bailiff service, while it will be more effective to contact the territorial body at the place of registration or location of the debtor’s property. In the event that the basis for collecting alimony was not a court decision, but a notarial agreement between the spouses on the procedure for its payment, the package of documents for initiating proceedings will consist of your application and this agreement.
All costs associated with production costs, among which the enforcement fee always appears, must be borne by the debtor after payment of the principal amount of the debt.
After receiving an application from the claimant, the head of the bailiff service has a three-day period to appoint a responsible executor and officially begin the enforcement procedure.
If you are interested in the issue of drawing up an application for alimony penalties, we recommend that you read this article.
First, the debtor is given 5 days to independently repay the amount of debt without the use of collection measures by a government agency. After the expiration of this period, if it was not possible to obtain a response, the bailiff, within the framework of his powers, selects a set of measures that will force the defaulter to fulfill his alimony obligations.
What documents are needed to initiate a case?
In order to collect alimony through bailiffs, it is necessary to submit documents that will become the basis for initiating enforcement proceedings.
What documents are needed to submit to the FSSP:
- A writ of execution, which can be obtained immediately after the trial;
- Court order for alimony;
- Application on behalf of the claimant;
- Notarial agreement on voluntary payment of alimony (if not assigned by court decision);
- Applicant's passport;
- Birth certificate of the child for whom child support is intended;
- Bank details of the account to which payments will be transferred.
Let's find out how to write a statement about non-payment of alimony by reading a special article prepared by the editors of our website.
If the recipient of alimony has information about the debtor’s place of work and his monthly income, this information must also be provided to the bailiff. Submitting this information in writing will reduce the time required to clarify this data during production.
Where should I apply?
Once you have found out what documents are needed to initiate foreclosure proceedings, you need to determine the specifics of filing an application along with the main package of documents. From the point of view of speeding up and simplifying the procedure, it is advisable to contact the territorial body of the FSSP at the place of registration of the debtor.
In some regions, a service is available for contacting government agencies through the Internet portal “Gosuslugi”, which significantly simplifies this procedure, given that the places of registration of the applicant and the payer can vary greatly.
If the applicant’s region does not provide the service for sending an application via the Internet, you should use Russian Post and send it by registered mail, preferably with acknowledgment of receipt.
Deadlines for submitting the sheet
As for the specific timing for presenting a writ of execution to bailiffs, the current legislation does not establish any restrictions. Alimony through bailiffs can be recovered at any time until the child for whom the payments were assigned comes of age, as well as for three years after this date - until the child turns 21 years old.
If for some reason the claimant withdrew the writ of execution and stopped the work of the bailiffs, he can apply to reopen the case an unlimited number of times within the established time frame.
In enforcement practice, there are many cases where the applicant did not apply for child support before or after the child came of age, but did not lose the right to submit an application, since the reason for the absence was valid. If you did not have time to submit documents to the bailiff to open a case, but you had reasons for this, restore the missed deadline by submitting the appropriate application.
