Cancellation of a court order for alimony: procedure, rules, terms and consequences

Judging by statistics stating that every third child in Russia grows up in a single-parent family, divorce of spouses and children is a fairly common phenomenon.

Divorce means child support. Alimony, in turn, can be voluntary or compulsory. Moreover, voluntary ones quite often turn into forced ones some time after the divorce.

That is, first the father carefully and consciously transfers or transfers the agreed amount to the children. Then, as the “ex-family” begins to play less and less of an emotional role in his life, alimony gradually fades away.

If a notarial agreement on voluntary alimony has been concluded, the child’s mother only needs to take it to the FSSP, and the bailiff service will begin collection.

But such agreements, it must be admitted, have not yet become the norm in Russia. As a rule, in a high-conflict divorce, the wife immediately files a claim for alimony. And in a non-conflict environment, the parties prefer verbal agreements “based on trust.”

When it becomes necessary to collect alimony through the court, this can be done in two ways:

In a lawsuit - that is, file a standard statement of claim, wait a month before the first meeting and hope that it will be the last. The court will have no doubt that the defendant will appear, and the decision to assign alimony will be made immediately.
In the writ procedure - file not a lawsuit, but an application for the issuance of a court order. The result in the form of a court order, equal in force to a writ of execution, will be ready in 5 days, and neither party needs to be present at the meeting.

It is clear that the order method is faster and easier. However, in addition to the fact that the order method of collecting alimony through the court is not suitable for all cases, the court order has another feature that does not please alimony recipients. It's almost as easy to cancel as it is to receive.

This is explained by the fact that the initial condition of judicial review by order implies the absence of disagreements between the parties. The desire of one of the parties to cancel the order is certainly a sign of disagreement. And disagreements require consideration through a lawsuit.

This article will consider the procedure, rules, timing and consequences of canceling a court order.

Is it possible to cancel a court order?

First, let's figure out how such a need arises in general.

Let's say the child's mother decides to get a court order to collect child support from the father. If she had filed a lawsuit about this, the court would have notified the defendant father within a month before the first hearing that he was facing a trial and about its essence. That is, the defendant would receive the claim itself and copies of the documents attached to it for review.

In the case of writ proceedings, nothing like this happens. The court does not notify anyone of anything, and does not invite even the applicant himself to the hearing. He simply decides to issue a court order (moreover, no other decision can be made once the application has been accepted).

The order is drawn up and sent to the alimony recipient after 5 days. And its copy (or rather, the second copy) is given to the alimony payer.

That is, the alimony payer learns that a court order has been issued against him after the fact. And after that he has 10 days to legally express his disagreement with him. In other words, demand that the court cancel this order.

If he takes the necessary steps within the prescribed period, the order will be canceled as simply as it was accepted. Without prior notice to the parties and without inviting them to a meeting. The alimony payer and the alimony recipient will simply receive a new document from the court - a decree canceling the court order.

ATTENTION! This regulation applies only to court orders. Only a court order can be canceled by order. If the alimony payer wants to challenge the obligations imposed on him in a lawsuit, he must file a claim. The same should be done if the alimony payer wants to challenge the amount. Regardless of how it is determined: a voluntary agreement, a court decision or the same court order. In all these cases, it is necessary to file a claim in court.

Methods of conducting litigation

The father and mother of the child, who due to certain circumstances were unable to come to a common decision regarding the maintenance of the child, have the right to resolve this issue with the help of the court. Now family law provides for a couple of ways to conduct legal proceedings:

order;
claim procedure.

The claim method involves the mandatory filing of a claim, followed by litigation involving the parties. As for the order procedure, it looks much simpler, thanks to which most citizens prefer to go to court not with a claim, but with an application for issuing a court order for alimony. After submitting such a paper, 5 days pass and the person already has an order to pay the funds.

However, even writ proceedings have some disadvantages. Thus, at the legislative level there are certain situations when it can be used. Also, if the alimony obligee files an objection, the order may well be cancelled, since writ proceedings, in principle, do not provide for the existence of controversial issues between the parties.

How to revoke a child support order?

Both the alimony payer and the alimony recipient have the right to do this. The regulations for this action will be slightly different for them.

The alimony payer must act as follows:

It is necessary to meet the ten-day period allowed by law in order to express an objection to the adopted order to the court
Prepare a corresponding application (we will discuss the rules for its preparation in more detail below) and submit it to the same judicial authority that issued the order
Receive a resolution to cancel the order and, on its basis, submit to the FSSP an application to cancel the enforcement proceedings against yourself. The application is submitted directly to the bailiffs.

The alimony recipient is not bound by any deadlines and does not need to go to court. He can immediately submit an application for termination of enforcement proceedings to the FSSP. The court order is not annulled. The recipient of the alimony has the right at any time to submit to the bailiffs an application for the renewal of collections on the basis of the same document. That is, payments based on the order will be resumed.

In what form is it possible to collect alimony?

In general, in the absence of an agreement on the payment of alimony, alimony can be recovered in court:

In shares of earnings (Part 1 of Article 81 of the RF IC).
In a fixed amount of money (Part 1 of Article 83 of the RF IC).
Simultaneously in shares and in a fixed sum of money (Part 1 of Article 83 of the RF IC).

The amount of alimony in shares of earnings collected in court for minor children from their parents is established by the Family Code and is: for one child - one quarter, for two children - one third, for three or more children - half of earnings and (or) other income of parents monthly.

Collection of alimony in a fixed sum of money is possible, for example, if the debtor has irregular earnings or income, or earnings or income in foreign currency, or if there is no official income at all. The same applies to the possibility of collecting alimony both in shares and in a fixed sum of money.

I will write in more detail about the second and third methods in another article, since this article is about a court order. And with the help of a court order, alimony can only be collected in shares of earnings.

Application for cancellation of a court order for the collection of alimony (sample)

An application to cancel a court order is written in the so-called free form. This means that there are no strict requirements for the form of the form. However, there are general rules for maintaining business records that the application must meet.

It is acceptable to write the application by hand or have it printed. For example, typed in Word and printed on a home printer. If a handwritten version is submitted, it should not contain blots or strikeouts. Naturally, in printed form there should be no grammatical, and even more so, factual errors that need correction.

The document is left according to certain rules and contains the following information:

In the “header”, shifted to the right side of the sheet, it is written to whom and from whom the application is being submitted. That is, the name of the court or judicial district, the name of the judge, as well as the full name and registration address of the applicant
Then indicate the name of the document “Application for Cancellation of the Court Order”
The main text follows. First you need to write the date of receipt of the order and refer to the document confirming it. For example, on a stamp on an envelope or notification for receiving a shipment at the post office.
Then an explanation: on the basis of which the applicant requests to cancel the order. What to write in it depends on the specific situation. For example, that the amount requested by the alimony payer is too high. Or that you intend to challenge paternity. In principle, the reason could be absolutely any. The reason for the objection in itself does not matter; the cancellation is made on the basis of the simple fact of the presence of objections on the part of the alimony payer. Therefore, you can simply write “I do not agree with the issuance of the order, I insist on a lawsuit consideration of the issue of alimony”
An explanation of the reason is followed by the essence of the application with reference to Article No. 128 of the Code of Civil Procedure of the Russian Federation: “I ask you to cancel the court order...” indicating the full name of the alimony payer and the alimony recipient, as well as the amount of the ordered alimony.
This is followed by the date of application and a handwritten signature with a transcript.

The application can be submitted not only by the alimony payer himself, but also by his representative, for whom a notarized power of attorney has been issued. The representative can be a lawyer or any private person.

A sample application can be downloaded on the Internet, or viewed in the court office. Samples of all procedural documents are required to be provided to plaintiffs and applicants - this is the norm. Using the sample as a guide, it is not difficult to create your own application.

ATTENTION! Don't forget that 10 days is not that long. If the deadline is missed, canceling the order will be much more difficult, or even impossible.

Therefore, if you encounter any difficulties in the process of preparing and submitting an application, contact a lawyer as soon as possible. For example, on the Prav.io portal.

Required documents for application

Judicial practice, based on the number of orders that have been annulled, shows that the success of a case mainly depends on how well the person prepares for the case. So, if a good evidence base is selected, a positive outcome can be counted on with a high probability.

Documents that need to be collected to cancel a child support order:

Copy of the passport.
A copy of the application.
The envelope in which the court order arrived.
Documents that prove insolvency. a copy of the court decision to cancel the fact of paternity.
Loan agreement.

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.

What documents are attached to the application?

Nothing special here. In most cases, it is sufficient to submit the following documents along with the application:

Certificate of marriage or divorce.
Birth certificate of the child(ren).
Certificate of residence.
Copies of all attached documents.

This list is not exhaustive and may vary depending on your specific situation. For example, if after the divorce you did not receive a divorce certificate, then you can submit a court decision on divorce. If you are applying for alimony during marriage, then you must provide a marriage certificate. A certificate from the place of residence will confirm the fact that the child is registered with you.

How is the 10-day period for filing an objection calculated?

A court decision in a claim proceeding comes into force 30 days after the date of its issuance. There is no similar strict connection to the date of the order. The ten-day period starts from the date when the alimony payer receives the court order and signs for it.

After 10 days, if no objections are received, the order is transferred to the FSSP. Alimony is calculated from the date of the order. The state duty is also calculated from the alimony payer - this is the general norm for any “alimony” cases.

If the alimony payer avoids receiving correspondence, the court is guided by the provisions of the Civil Code of the Russian Federation. It says that if some significant postal item is sent to the citizen’s permanent residence address and received by the post office, the citizen is considered to have been properly notified.

If a citizen does not appear for the postal item, the post office will send it back to the court within the prescribed period. The 10-day countdown will begin from the date when the court receives back the order that the alimony payer did not receive. If the citizen received it, the countdown will begin from the day he signed for the package at the post office.

How long does it take to appeal a document?

The debtor is given 10 days to file objections to the court order. The countdown begins from the day following the date of receipt of the document. For example, a letter from the court office arrives to the payer on May 20, 2020. Then the deadline for filing objections is 05/30/2020.

Ideally, the payer should receive the document in hand and sign for delivery. However, proper notification also includes the situation with the return of the letter to the court office if the debtor refuses to appear at the post office.

Is it possible to request cancellation if 10 days have already passed? Yes, but in this case the debtor must attach to the application a request to restore the missed deadline, indicating valid reasons. The latter include, in particular, the following:

stay on a business trip or abroad;
treatment in an inpatient medical facility;
failure to receive a letter in connection with moving to a new place of residence;
natural disasters: flood, earthquake, fire;
difficult family circumstances, for example, the need to care for a seriously ill relative, death of loved ones.

It is important to submit the application immediately after the reasons for missing the deadlines no longer exist. Otherwise, the court will refuse to cancel.

The judge issued a ruling against citizen M. in March 2020. After 5 days, the postman came to the debtor’s apartment and, not finding the owner, threw a notice into the mailbox. Citizen M. returned from a business trip at the end of April. But it was only in mid-May that he filed an objection with a motion to restore the deadlines. The judge refused citizen M., since the debtor could have gone to court back in April.

Missing the deadline for filing an objection

In practice, missing a deadline occurs quite often. Let’s repeat – 10 days is not much. The person may be away or in the hospital. Finally, it’s simply not possible to look at your mailbox every day – this is not uncommon nowadays, since few people subscribe to daily newspapers, and communication with family and friends occurs mainly through the telephone and computer.

Each case of missed deadline is considered by the court individually, in accordance with the requirements of Article No. 112 of the Code of Civil Procedure of the Russian Federation. If the court finds the reason for missing a valid reason, the term will be reinstated. To do this, you must submit an application to the court with two requests:

Reinstate a deadline missed for a valid reason
Cancel a court order due to the alimony payer’s objection

Let's look at a few examples of reasons for missing a deadline and its consequences.

Example 1

And I received the order in the mail, signed it and put the unopened envelope on the shelf in the hallway. Remembering it two weeks later, A read the order and decided to file an objection. The objection was not accepted because there were no valid reasons for the delay

Example 2

Returning from vacation, A found in his mailbox a notice of receipt of a document from the court, but when he arrived at the post office, he found out that it had already been sent back. He appealed to the court to restore the term, and the term was restored because. And he proved that at the time of receiving the order at the post office, he was not in the city.

Example 3

And he lived in a small village where the postman rarely came. One day, having brought the court order, he did not find A at home, and took the package back to the post office. Then he forgot about it, and the order was sent back to the court as not received. I only learned about it from the bailiffs. The court restored the deadline because A presented an explanatory letter from the postman, which confirmed that A did not avoid receiving correspondence, and the postal item was not received due to the fault of the postal workers.

Example 4

The postman personally delivered the court order to A's address, but since he was not at home, he handed over the package to his mother for signature. The mother gave the package to her son only two weeks later. The court restored the deadline, since transferring the order to another person is a valid reason for missing the deadline

Example 5

And he asked to restore the deadline by presenting a certificate according to which at the time the order was received by the post office, he was in the hospital, from where he left only a month later. The deadline was restored and the order was cancelled.

Example 6

A wrote in a statement to the court that he did not receive the order because the notice was not in his mailbox. However, postal employees documented that they twice issued a notice to receive a valuable letter and delivered it to address A. The court refused to restore the deadline.

So, valid reasons can be considered:

Illness, hospital stay, or on bed rest at home
The alimony payer is located outside the city or country
Incorrect operation of the post office
Transferring an order to another person
And some others that the court may recognize as valid depending on the circumstances

ATTENTION! If the reason that you yourself consider quite valid for missing a deadline is non-standard, or you do not know how to prove it, contact the Prav.io portal for advice.

Article 112 of the Code of Civil Procedure (reinstatement of a missed deadline)

Article 112 of the country's Civil Procedure Code contains a rule allowing a person who has missed the deadline for filing objections to reinstate it.

To do this, the citizen goes to court with a document drawn up in advance, in which he asks to restore the term. The paper must indicate the reason why this requirement is stated with a description of all the circumstances that took place in the person’s life.

Along with this, an objection to the issuance of the order is certainly raised. Such paper, according to the rule established by law, is subject to consideration in the presence of the parties. By the way, the absence of any party will hinder this process.

The court considers the application and ultimately issues a ruling that either satisfies the applicant’s request or denies it. Copies of the official paper must also be sent to both parties for review.

Legal consequences of canceling a court order

The court order to cancel the court order against the alimony payer is sent to both parties to the process within three days. If the order has already been transferred to the FSSP (by the court after the expiration of the period allotted for objections or by the alimony recipient), the bailiff service also receives a copy of the order. On its basis, enforcement proceedings are terminated.

The resolution clarifies the right of the alimony recipient to re-demand the collection of alimony, but this time through a claim proceeding. If the court order has been canceled, you cannot re-apply for it.

However, when filing a claim, the alimony recipient has the right to demand the collection of alimony not from the moment of filing a statement of claim in court, but from the moment of his first attempt to collect alimony by order. In this case, a copy of the application for the order and a resolution to cancel it due to the objections of the alimony payer should be attached to the package of documents accompanying the claim.

The alimony payer, in turn, can file a counterclaim to reduce the amount of alimony, challenge paternity, or acknowledge the fact that alimony was paid in a non-standard form under the alimony agreement. For example, a child was given a gift of real estate instead of monthly payments until adulthood. Of course, in the event that his objection to the order really had a basis, and did not simply pursue the goal of “getting on the nerves” of the alimony recipient and delaying the moment of payments.

If you still have questions regarding this topic, the lawyers of the Prav.io portal will help you resolve the most complex legal issues related to alimony and protect the rights of the alimony recipient or alimony payer.

What is the difference between a court order and a court decision?

A court order is issued based on the creditor’s application after reviewing the documents provided. It has independent enforcement power, but can be overturned by the same court that issued it. In this case, the case can be considered in the manner of claim proceedings, as specified in Art. 129 Code of Civil Procedure of the Russian Federation.

As for the decision, it is made after trials conducted in full compliance with the requirements for the process: examination of evidence, speech in the debate of persons involved in the case, and so on. Based on the court decision, a writ of execution is issued, which can be taken to the bailiffs or sent to banks.

Thus, writ proceedings do not require court hearings with the invitation of persons participating in the case, while a court decision cannot be made without complying with all the requirements for the conduct of the process. As a rule, creditors first apply for an order and only if they receive objections from the debtor do they prepare a statement of claim.

De facto, the court order is issued in absentia - the court does not examine the evidence and does not hear the parties during the hearing. In this case, the debtor can file objections and cancel the execution of the document.