What is alimony
Situations are not excluded when the amount of alimony payments may be overpaid. This happens for various reasons, for example due to a counting error.
Alimony is a payment intended to support a family member, usually for minor children. The law sets a fixed amount. Collection of payments occurs forcibly on the basis of a court decision. The amount of benefits can be a percentage of wages or set as a fixed amount.
The right to assign a specific amount is based on a court decision or verdict. As a general rule, such payments are assigned to a parent who is not in an employment relationship and cannot automatically transfer payments to the account of the alimony recipient. In any case, a parent is obliged to help his minor child.
Situations when the court decides to assign a fixed amount of payments:
- alimony payer and has a disability;
- has a complex physical injury;
- already pays alimony to other family members;
- other children appeared from the new marriage.
It is these conditions that can serve as the basis for establishing payments in a fixed amount.
If the payment is a certain percentage, part of the earnings is withheld from the salary in favor of the child.
The legislation provides for the following payment percentages:
- If the child is the only one, he is entitled to 25% of the parent’s total net earnings;
- If a parent has two minor children, he must transfer 33% of net earnings to them;
- If there are three or more children, 50% of earnings are charged.
The total number of children, even if they are born from different women, is added up.
If there are arrears in alimony payments, a maximum of 70% can be deducted from wages.
When is alimony released?
Thank you for your son and good reasons:
- illness and disability;
- non-payment of wages by the employer;
- delay or incorrect transfer of money by the bank;
- military service upon conscription.
For example, the parents divorced, and the son, by court decision, lives with his father. But at the same time, the parent was obliged to pay child support. The father fully provides for the child. The father did not pay child support, which resulted in arrears. The court released the plaintiff from payment and debt.
Failure to pay alimony while a person obligated to pay alimony is serving a sentence in prison is also not an unconditional basis for his release from administrative liability. In this case, other circumstances are subject to investigation, in particular: whether such a person was involved in paid work during the period of serving his sentence, whether he refused to work without good reason
Transfer of alimony In this article you can read questions and answers on the topic “transfer of alimony”, familiarize yourself with sample documents and prices for the services of our lawyers for collecting alimony, as well as online in our online chat at the bottom right. In any case, in order to avoid future problematic situations, all receipts (payment documents) confirming the “material” fulfillment of alimony obligations must be preserved, which will provide the payer with guarantees in case of litigation or various misunderstandings, if suddenly payments are not received to the recipient’s corresponding account alimony.
Important! If during the proceedings regarding the overpayment it turns out that the culprit of the error is a third party, then the excess money will not be recovered from the recipient of the funds. In this case, the responsibility for the overpayment lies with the citizen who made an error in calculating the amount of alimony obligations.
The legislative framework
The following provisions establish the refund procedure:
- Article 116 of the Family Code of the Russian Federation regulates the procedure for payment or return of alimony payments;
- Articles 1108 and 1109 of the Civil Code of the Russian Federation indicate the reasons for claiming the amount already paid;
- Article 303 of the Criminal Code of the Russian Federation provides for criminal liability for providing irrelevant information.
To better understand how the court system works, interested parties should familiarize themselves with the Code of Civil Procedure.
Taking into account the financial and marital status of the parties
Does your ex-husband pay little alimony? What to do and where to look for help A wife raising a young son is content with child care benefits not exceeding 3 thousand rubles, because she did not work before maternity leave. The RF IC has established that the maintenance of a minor is the responsibility of both parents, but in the case described, the following turns out: the father gives a quarter of the salary - 2,500 rubles or even less, taking into account the withholding of personal income tax, the mother, if she allocates the same amount of funds, will be able to keep for herself only 500 rubles or leave nothing. The following must be taken into account: the minimum wage in 2018 is brought into line with the subsistence level (read here what to do if alimony is below the subsistence level).
It happens that the alimony worker deliberately gets an official job with a minimum wage - in order to pay less. In fact, he either receives a higher salary than indicated in the employment contract, or has other income, say, from business activities that are not properly documented. The duties of the bailiffs include searching for all income of the payer from which alimony can be withheld .
To achieve justice, the injured person needs to study the Civil Procedure Code to understand the nuances of the judicial system.
Reasons for overpayment of alimony
Let's look at the reasons why alimony payments are overpaid. To understand why this happened, you need to contact the system for transferring alimony payments with the appropriate message.
The reasons for the formation of overpayments for alimony may be the following:
- unfair manipulations and violation of the law on the part of the recipient of alimony payments;
- a technical error by the responsible person in the organization’s accounting department, who managed to write off too much money;
- a mechanical error that occurred at the time of transfer of payments in favor of the child;
- the alimony recipient does not promptly notify the court of changes in conditions;
- unlawful actions on the part of employees of the organization or other interested parties, for example, bailiffs.
In the above situations, the ex-spouse has the right to file a claim for consideration by a judicial panel, with demands to review the amount of payments. It is not always possible to recover overpayments of alimony. You need to be very careful and track every money transfer.
During the trial, you can review the documentation and track whether a technical or mechanical error was made, or whether the employee was simply deceived. The payment may be invalid due to a court decision.
Who is charged the overpayment?
How to return overpayment of alimony Although Art. No. 116 of the Russian IC states that it is impossible to reimburse the listed “children’s” children; in practice, there are loopholes in the law that allow this to be done. Another option is a calculated technical error (software failure, incorrect payment documentation with errors). In this case, the funds are also returned.
The official representative of the child is guilty if he deliberately concealed the changed circumstances of child support payments.
Overpayment of alimony And here I have a question for the woman. When she receives payments from O, she couldn’t say that she hasn’t applied for alimony yet. Why use other people's money? And then the debtor comes and asks to recalculate alimony, allegedly withheld from him twice.
And he paid her every month and the last payment in the amount of 70 thousand, from about, was made by him on 04/31/2019. It turns out that what he paid before 05/01/2019 cannot be considered alimony.
How to offset overpayment of alimony
To more clearly understand how the return of overpaid alimony occurs, we should consider the situation using a specific example. According to the requirements of the RF IC, you can appeal to the World Court when the alimony payer has overpaid an amount of less than 50 thousand rubles. If the amount of the overpayment is significantly more than 50 thousand rubles, the parent has the right to appeal to a court of general jurisdiction. To do this, he needs to collect a complete package of documents.
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If the ex-spouses have friendly relations, they can directly talk to each other to resolve everything peacefully. Overpayments may be counted toward future payments. They need to draw up an act, which they then submit to the bailiffs for consideration and giving it legal force, then alimony will be counted against future payments.
This is also important to know:
Calculation of alimony in a fixed amount, sample
In order for overpayment of alimony to count towards future payments, both parties must sign an agreement or issue a written statement. It is important that funds already received cannot be withheld; this is stated in Article 116 of the RF IC. But there are certain conditions under which you can return overpaid financial assistance.
Exceptions include:
- Based on a court decision, a previously accepted agreement is canceled, for example, if the parents submitted forged documents or false information about the children;
- The agreement is also canceled if strong evidence is provided that its signing was under the influence of certain pressure from the recipient of alimony payments;
- Committing a criminal offense.
If one of the parties presents as evidence arguments that the documentation was not correctly interpreted, the court will not decide to return the overpayment.
How to calculate the amount of alimony in advance?
Payment of alimony in advance: is it possible and how to formalize it? The drawn up additional agreement must be certified by a notary office. In this case, the notary must provide evidence that the child’s rights were not violated when drawing up this document.
- obtain consent from the parent who lives with the child (or from the guardianship or guardianship authorities);
- write down a section in the alimony agreement that will indicate the condition for early payment of alimony and deduction of it from the total amount;
- calculate the amount of alimony for the future period.
- the recipient of alimony used manipulative actions at the time of drawing up the agreement;
- the recipient of alimony posed a threat to the life and health of the payer and his relatives;
- the recipient of alimony resorted to deception when drawing up the agreement;
- the recipient used violence or blackmail against the alimony payer.
§ How to Return Excessively Withheld Alimony to an Employee
Refund conditions
How to return excessively transferred alimony? Depending on the reasons for which alimony payments were overpaid, the court decides to return or refuse to satisfy the claims. Not every overpaid amount for the maintenance of a minor child can be returned.
If the overpayment occurred due to an error on the part of the employer, the employee has the right to write a statement addressed to the manager with a request to recalculate and return the excess. The organization is legally obliged to return the money. The company's expenses will be deducted from the earnings of the employee who made the mistake. There is nothing to blame the former spouses for; they had nothing to do with the mistake made.
If there was an overpayment of alimony due to the fault of the parents of a minor child, by providing knowingly false information, you can return the overpayment of alimony in the following ways:
- The one who made the overpayment must send a request in writing to the court authorities in the event that the recipient of alimony does not admit his guilt and does not make a claim;
- If claims are made by the alimony recipient, the former spouse must write a statement to the court authorities.
Government agencies will refund the amount if the overpayment was caused by software. When the overpayment was made through the fault of the responsible bailiff, the alimony payer must apply to the court with a written application for the return of funds. Next, the bailiff returns the required amount of overpayment from the actual wages.
Application to the employer
The accounting employee responsible for transferring alimony who made such a mistake returns the overpayment amount from his own earnings. To do this, the alimony payer must submit a written application to the head of the organization. It must describe the current situation and state that the overpayment arose through the fault of the accountant.
This is not the recipient’s fault, so collecting the overpaid amount from him would be contrary to the law. Any losses incurred are compensated by the company employee.
How to write a statement to an employer
In case of incorrect actions of the accountant, which led to excessive withholding of funds from the payer, the organization, or rather the person who made the mistake, bears responsibility. To do this, a letter is drawn up to the manager outlining all the circumstances, and a demand is also written to return the lost funds.
In most cases, the company satisfies the claim of the injured employee, and the lost amount is reimbursed by the person who made the mistake. If it is not possible to compensate for losses in this way, and the organization does not fulfill its obligations, it is necessary to file a complaint with the relevant government authorities.
What needs to be indicated in a letter to the head of the organization:
- Information about the head of the organization where the payer is employed (last name, first name, patronymic, name of the legal entity).
- Information about the employee who calculated the payment and made the payment (last name, first name, patronymic, position held).
- The circumstances of the problem.
- Demand to compensate for losses.
- Date, month, year of writing, personal signature of the injured employee.
Based on the received request, an internal investigation is carried out, the guilty parties are identified, from whom the overpayment amount is recovered and sent to the payer. The recipient is not charged anything.
Procedure for returning alimony payments
The property of a minor child and the funds transferred to him are inviolable. Therefore, by court decision, funds are collected from the father, mother or guardian of the minor child.
What procedure should a parent who wants to return his own funds take?
- In the event that an error was made by an accounting employee, the alimony payer must provide the court with an accounting certificate of calculations and payments, drawn up through a special computer program;
- Providing evidence for the court will be required in case of deliberate deception and concealment of certain information;
- If a sample statement of claim is required, it can be taken from the court;
- When the case is considered, the court decision is delivered by mail to the address of the alimony payer;
- The writ of execution is transferred to the bailiff department, then a certain decision is made.
This is also important to know:
How to apply for alimony: drawing up a statement of claim and procedure
To return the overpaid amount, you must act in accordance with established legal requirements. It would be a good idea to consult with a legal advisor. In this case, it will not be possible for other persons to refute the information.
When does an employer have the right to withhold overpayments?
According to Part 2 of Art. 137 of the Labor Code of the Russian Federation, the employer has the right to deduct debt from an employee’s salary:
- if the employee for some reason has not worked out the prepayment received;
- in order to reimburse the unspent part of the prepayment for a business trip, moving to another area, etc.;
- in case of correction of errors made by the accounting department in wage calculations;
- to reimburse the payment received by an employee guilty of failure to comply with labor standards or idle time;
- upon dismissal in order to reimburse vacation pay for the unworked period of previously received vacation.
In all of the above cases (except for the first), the employer has 1 month to make a decision on deductions from wages.
As a general rule (Part 4 of Article 137 of the Labor Code of the Russian Federation), deduction of overpaid wages is not allowed. However, there are some exceptions. Let's look at them.
Reimbursement of overpayment amount
There are several ways to get back the overpaid amount of money. It all depends on the reasons for a particular situation.
Claims should be made against the organization if the overpayment was due to the fault of the employer. The overpaid amount will be returned to the employee’s account, and the losses incurred by the organization will be deducted from the salary of the offending employee. The recipient of the payment and the payer themselves are not guilty in this situation, so it will not be possible to withhold the required amount from them even in court.
If the recipient of financial assistance is guilty of deliberately concealing changed circumstances, it is possible to organize a refund of alimony in the following ways:
- Draw up and send a request (in the event that the spouse who received the payment does not make any claims and does not deny her guilt);
- Submit a statement of claim to the court (if the spouse does not want to reach an agreement peacefully).
In addition to such situations, a software failure or errors in payment documents may occur.
If the overpayment occurred due to the fault of the bailiff, for example, he missed the acceptable deadline for filing a writ of execution, the costs are deducted from the earnings of the guilty employee.
List of required documents
In order for all court conditions to be met, the payer must have with him a package of documents and a statement of claim. Each case is individual, so you can find out exactly what needs to be provided as evidence by consulting a legally savvy specialist.
There are general requirements for documents that must be attached:
- Original and photocopy of the plaintiff's identity card;
- Papers proving the reasonableness of the requirements;
- Certificate from the accounting department and salary statement;
- A written instruction from the employer;
- A properly completed claim stating that the amount was unlawfully withheld.
The package of documents must be signed and submitted to the court personally by the plaintiff. According to the act for overpayment of alimony payments, the alimony payer independently submits his claims.
Providing knowingly false information or falsifying documents may result in a criminal case. Then the analysis of the situation will last a long time, since one of the parties will be considered a suspect.
Who is charged the overpayment?
The subject of recovery is exclusively the person guilty of the violation. That is, demands for the return of funds are presented, for example, to the company where the accountant who made the mistake works, and money is subsequently deducted from his salary. In this case, the recipient is declared innocent.
The official representative of the child is guilty if he deliberately concealed the changed circumstances of child support payments. In this case, you can recover the overpayment in two ways:
- send a request;
- If the second parent does not admit his guilt, file an application with the court.
The recipient will have to compensate for the illegally transferred “children’s”. The responsible bailiff may also be held liable if he did not promptly transfer IL to the accounting department of the company where the payer works.
Another option is a calculated technical error (software failure, incorrect payment documentation with errors). In this case, the funds are also returned.
Statement of claim to court
If there is a need to go to court, the alimony payer should consult with a lawyer. He will help you competently draw up a statement of claim and tell you what documents should be prepared and attached to the statement of claims.
You can submit an application to the magistrate’s court at the plaintiff’s place of residence if the amount of the overpayment is less than 50,000 rubles. An application should be submitted to a court of general jurisdiction if the amount of overpayment is more than 50,000 rubles.
The procedure for considering a claim is as follows:
- A claim must be filed;
- The judge considers the citizen's appeal;
- The decision is made at a court hearing;
- A writ of execution is issued after a court decision has been made and the demands are recognized as legitimate;
- after execution, the writ of execution is transferred to the federal bailiff service;
- If the plaintiff has expressed a desire to offset alimony against future payments, the court satisfies his request.
This is also important to know:
Withholding alimony from a pension: amount of collection and payment procedure
There are cases when during the trial it is established that false documents were provided. In this case, a criminal case is initiated in this court proceeding.
Possible delays
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If it is revealed that the court was deliberately misled, the proceedings will last several months, and it is likely that one of the parties that provided false information will be prosecuted.
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It is also possible to delay the payment of overpaid funds, or a reduced amount of overpayment.
Often, the spouse files a statement of claim with a request to revise the amount of the alimony payment. The ex-wife has the right to file a counterclaim and appeal the court decision. Even if it is not satisfied, the date from which the amount will begin to be collected depends on the moment from which the court decision comes into force. Until this point, alimony payments are deducted in the same amount. Excessively paid alimony is not returned if the situation does not fall under the three reasons already mentioned above, in the presence of which a refund is made.
Possible delays
If it turns out that the recipient deliberately misled the court and provided incorrect information, the proceedings will be delayed, and perhaps criminal proceedings will be opened.
Have you ever experienced delays in child support payments?
Not really
A delay in reimbursing the payer or collecting money for the child in a new, reduced amount is also possible.
Often, the payer files a claim to review the amount of alimony and his request is granted, but the wife files an appeal, and even if it is rejected, the moment at which the bailiff begins to collect money under a new court decision depends on the date of entry into force of this decision. In this case, alimony is deducted from the salary at the old rate until the decision gains legal force. Refund of the overpayment is not provided if there are no 3 conditions mentioned above (cancellation of the previous decision of the judge, for example).
