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.

What are the consequences of refusing payments?

The consequences of refusal depend on the collection method chosen by the parties:

1. Agreement on termination of the document on payment of alimony - alimony obligations are terminated.
2. Court order - if it is canceled by the alimony obligee and the claimant does not apply through the claim proceedings, payments are not assigned. However, the recipient has the right at any time before the child comes of age to file a claim for their recovery.
3. Writ of execution - when the document is recalled by the claimant, the enforcement proceedings end. However, it can be presented again to the bailiff service an unlimited number of times. Revocation of the writ of execution stops the accrual of payments, but does not cancel the 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.

Deadline for canceling a court order

Let us repeat once again - the period is 10 days from the moment the alimony payer receives the order. Only during these 10 days does he have the right to submit objections to the court, the essence of which is unimportant. In any case, the order will be canceled, since disagreement with it by one of the parties is a sign of a contradiction between them.

If there are contradictions and disagreements, the use of an order is impossible. This requires a full-fledged lawsuit, during which the court delves into the essence of the parties’ disagreements and makes a decision based on the provisions of the law. It will no longer be possible to challenge it on the basis of a simple objection. But the requirements of the alimony recipient will be satisfied only if they are completely legal.

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.

Crib

1. The current legislation does not contain provisions providing for the waiver of alimony. Therefore, it will not be possible to go to court with such a claim.
2. Both the recipient and the payer of alimony have the right to initiate refusal of payments. In this case, the latter has the right to formalize such a refusal only in court if there are compelling reasons.
3. Depending on the method and procedure of collection, refusal can be carried out in pre-trial/judicial proceedings or at the stage of enforcement proceedings.
4. Deprivation of parental rights does not relieve such a parent from the obligation to support the child.
5. The voluntary refusal of the recipient of payments does not cancel his right to receive them. At any time, he can resume the collection procedure by filing a claim in court/sending a writ of execution to the bailiffs.

How did your friends resolve the issue of refusing alimony? Which method of refusal is most appropriate for you?

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.

How to refuse payments during a trial

Refusal to collect alimony is possible at any stage of the civil process.
If a claim for alimony has already been filed in court, you can refuse alimony payments in the following way. The child's mother has the right to waive the claims and the court terminates the proceedings.

How to refuse a claim

The consequences of such a waiver of claims will be the impossibility of re-filing a claim in a dispute between the same parties and about the same subject - Art. 221 Code of Civil Procedure of the Russian Federation. In this case, the waiver of the claim must be unconditional. That is, the plaintiff does not have the right to make the condition of refusal dependent on the commission of any actions by the defendant/other persons.

It turns out that the plaintiff must simply believe the unfounded promises of the defendant. I do not recommend abandoning the claim. You should wait until the trial is completed and receive a writ of execution. After which you can decide whether to present it for execution or not.

Sample application for waiver of claims (DOC 22 KB)

What to do if the mother has already abandoned the claim and it is accepted by the court

You cannot submit a claim similar to the original one; it will be rejected. If the father of a minor fails to fulfill his obligations/stops making payments, the mother has the right to file a lawsuit to recover them, having previously changed the subject/grounds of the claim.

For example, if a claim was previously filed for the recovery of payments as a share of income, now you can file a claim for their recovery in a fixed amount of money (if there are grounds for this).

If the claim was considered in a district (city) court, you can contact the magistrate with an application for a court order. In this case, there will be a different date and, accordingly, a different period.

How to enter into a settlement agreement

At any stage of the legal process, the parties can sign a settlement agreement, which specifies the order of child support. It will not be possible to refuse payments, but the parties can agree on individual terms that are convenient for the parties. The main thing is that they do not violate the interests of the child.

In the article Settlement Agreement on Child Support, I talked about this in more detail.

Sample alimony settlement agreement (DOC 19 KB)

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.

How to refuse payments after receiving a court decision

The easiest way to refuse to pay alimony in this case is not to present the received writ of execution for collection. However, situations are different. After the decision is made, the writ of execution can be sent for enforcement to the bailiff service or to the payer’s place of work.

Next, we will consider in more detail the algorithms of action in these cases.

How to refuse if a writ of execution is presented to the bailiffs

Refusal is possible based on an application from the claimant or payee:

1. On the revocation of the executive document.
2. On termination of enforcement proceedings.

Next we will consider them in more detail.

How to revoke an executive document

The possibility of returning the writ of execution to the claimant upon his application is provided for in Art. 46 229-FZ. At the same time, the return of the writ of execution to the applicant does not prevent its repeated presentation for execution.

Follow the following algorithm:

1. Submit an application for revocation of the writ of execution.
2. Submit an application to the bailiff service at the place of enforcement proceedings. For this you only need a passport.
3. Receive the original writ of execution/court order and a copy of the resolution on the completion of enforcement proceedings in person/via mail (a copy of the resolution is sent to the parties to the enforcement proceedings no later than the next day after its issuance - clause 6 of Article 47 229-FZ).

How to make an application

The statement states:

• Name and address of the FSSP.
• Full name of the bailiff conducting enforcement proceedings.
• Full name of the claimant, place of registration/residence.
• Full name of the debtor, place of registration/residence.
• Date and number of the judicial act on the collection of alimony.

• Data from enforcement proceedings.
• Reason for revocation of the writ of execution.
• Request for return of document.

• Date, signature.

Sample application for revocation of a writ of execution for the collection of alimony (DOC 14 KB)

How to terminate enforcement proceedings

Please note that the concepts of revocation of a writ of execution and termination of enforcement proceedings are not the same thing. The latter is possible only if there are grounds provided for in Art. 43 229-FZ.

This may include:

• Court approval of a settlement agreement on reconciliation between the claimant and the debtor.
• Adoption by the court of an act terminating the execution of the writ of execution issued by it.
• Cancellation of a judicial act on the collection of payments (court decision/court order), which is the basis for issuing a writ of execution.
• Recognition by the court of an agreement on the payment of alimony as invalid, etc.

In this case, the payer should apply to the court to terminate enforcement proceedings. Based on the results of its consideration, the court makes a decision, which will be the basis for the bailiff to terminate it.

Sample application for termination of enforcement proceedings (DOC 13 KB)

How to refuse if alimony is collected through the employer

If the writ of execution was presented directly to the employer, revocation is also possible. The procedure is similar to the withdrawal of a writ of execution from the bailiff service. Follow the following algorithm:

1. Draw up an application for revocation of the writ of execution.
2. Present it to the head of the organization in which the document is being executed.
3. Receive the original writ of execution in person/by mail.

Important! The revocation of the writ of execution by the claimant is not an indefinite guarantee of his refusal to pay. The document may be presented again. At the same time, you have the right to demand the recovery of not only current payments, but also the debt for the last 3 years - clause 1 of Art. 113 RF IC.

Sample application for revocation of a writ of execution from an employer (DOC 12 KB)

Grounds for assigning alimony for the maintenance of a former spouse

According to Art. 89 of the RF IC, spouses are obliged to financially support each other while living together in an official marriage.

If one fails to comply with this obligation, the other may recover alimony for his maintenance in court if he meets the criteria:

• established disability and need for financial support;
• pregnancy or raising a child under 3 years of age;
• caring for a disabled minor child, regardless of who his father is;
• caring for a common disabled child from childhood, group 1.

To request alimony in the above situations, it is not necessary to be officially divorced - it is enough to confirm that the person obligated for alimony does not make a financial contribution to the well-being of the family.

There are cases of collecting alimony for spousal maintenance after a divorce:

• pregnant wives or raising children under 3 years of age;
• needy former spouses caring for a young child with a disability or a common disabled child of group 1 since childhood;
• establishment of incapacity for work within a year after divorce or during marriage;
• reaching retirement age within 5 years after the dissolution of family relationships, if the applicant is classified as needy;
• reaching pre-retirement age (55 for women and 60 for men) within 1 year from the date of divorce.

In accordance with Art. 91 of the RF IC, spouses or former spouses can apply for alimony for their maintenance in two ways - by concluding an alimony agreement with a notary or through the court.

In the first case, they independently determine when and in what amount the money will be transferred; in the second, the court takes into account the financial situation of both parties, on the basis of which it assigns a specific amount of payments.

Examples from judicial practice

There are few cases from judicial practice on the abolition of alimony, but judging by the available ones, it can be assumed that the ex-spouse has a chance of satisfying the claim, provided that a full list of evidence of the grounds is provided.
To understand the features in detail, it is enough to familiarize yourself with practical examples of situations that had to be resolved through the courts:

Cancellation of alimony due to spouse's marriage

The marriage of Olkhovsky O.N. and O.R. was concluded in 2015. They had a son, the woman filed for divorce and decided to collect alimony for the maintenance of herself and the child. Payments are scheduled for May 2021, and she remarried in October. At that time the child was 1 year old. Remarriage is grounds for cancellation of alimony for the maintenance of a spouse, and Olkhovsky O.N. will have to pay another 17 years for a minor.

The ex-husband went to court to cancel payments to O.R. As evidence, he used video recordings of conversations with his ex-wife, where she said that her new husband was fully providing for her, and made offensive language about O.N. At O.R’s trial . admitted the fact of marriage. Based on the evidence and testimony, alimony for her maintenance was canceled.

Court decision to cancel alimony for wife's maintenance due to going to work

The marriage of Khomutov L.D. and N.G. was registered in 2014. After living together for 2 years, they decided to get a divorce. They had an 8-month-old child together. N.G., through the court, demanded alimony from L.D. for her maintenance, because she was on maternity leave and needed financial support. Payments are scheduled for June 2021.

In August 2021, N.G. went to official work, her ex-husband found out. He filed an application with the court to cancel alimony for her maintenance, and used audio recordings of conversations as evidence, invited witnesses who confirmed the fact of N.G.’s employment. The court’s decision was made in favor of the plaintiff.