Calculation of alimony debt for the past period

Alimony payments, as a rule, are made over many years, because they are paid until the child reaches the age of majority. And if they were determined by the court in the form of a fixed amount, and not a percentage of wages, then their size remains unchanged from year to year.

And this despite the fact that inflation makes the ruble cheaper every year. And this leads to the fact that the amount that was quite enough for everything yesterday is no longer enough to adequately provide for a child. In this case, the law provides for recalculation of alimony. How to achieve it? This will be discussed in the article presented to your attention.

Even a court decision or the signing of an “amicable” agreement is not always a guarantee that the money will go as intended. Sometimes the braider, for one reason or another, violates the schedule of transactions, or they arrive in incomplete quantities, or even stop altogether.

Legislation

Recalculation of alimony payments is made on the grounds specified in the RF IC. To reduce the amount of debt or exemption from payment, the provisions of Art. 114, indicating that this is possible for good reasons:

• poor financial situation;
• long-term illness;
• being in the army, as a result of which alimony debt has accumulated;
• caring for a seriously ill close relative;
• presence of other dependents.

Important! The amount of the penalty is 0.1% of the debt amount for each day of delay. In case of prolonged non-payment, the amount of the debt reaches hundreds of thousands of rubles, therefore, those obligated for alimony who have valid reasons can reduce the amount in court or by agreement of the parties. Debt cancellation is possible.

The review of alimony is also carried out on the basis of Art. 117 RF IC – indexation. It is carried out quarterly after updating the level of living wage in the region.

1. The obligation to index alimony rests with the accountant at the payer’s place of employment.
2. If the person liable for alimony is registered as unemployed, the indexation is carried out by the accountant of the Employment Center.
3. When receiving a pension or other government benefits, the review of payments is assigned to the Pension Fund accountant.
4. In other cases, indexing is performed by a bailiff. The cost of living level is used as the basis.

Based on Art. 119 of the RF IC, it is possible to reduce or increase alimony. The procedure is carried out exclusively through the court or by voluntary agreement. In the first case, the IL is provided to the bailiffs or accountant, but payments for past periods are not recalculated. Alimony is established in the amount specified in the writ of execution.

If recalculation is refused

State structures to which you should contact in connection with the improper performance by bailiffs of their duties to recalculate children's penalties:

Accordingly, if the management of the FSSP and the judicial authority refused to recalculate alimony, then it is necessary to contact a higher judicial authority through the court that issued the initial negative verdict.

The legislation allows exactly one month for an appeal. In practice, the appeal procedure is not so quick. Although the issue is resolved within one court hearing, the process of preparing for the hearing takes quite a lot of time:

1. First, the trial court must check the complaint for compliance with the law.
2. Then the document, with the case materials attached to it, is sent to the appellate authority. Complaints will be considered there for some time.
3. Only then is a court date set.

Important! Writing and filing an appeal is not the only opportunity to achieve justice and defend the right to recalculate alimony. If the court refuses to appeal, then you can also file a complaint with the court of a constituent entity of the Russian Federation through the cassation procedure. And, only then, if necessary, go to the Supreme Court.

Why is it necessary to recalculate alimony payments for the past period?

The basis for debt recalculation is the poor financial situation of the payer or the initiative of the recipient. There may also be other reasons:

• change in the financial situation of the parties (relevant for recalculation for past periods);
• changes in the cost of living;
• early repayment of debt.

In the latter case, the bailiff may not know about the fulfillment of the debt obligation, and the penalty will continue to accrue. To cancel it, an application from the creditor or payer will be required. After a ruling is made indicating the new amount of debt, the ex-spouse undertakes to repay it. If there is no debt, this is also reflected in the document.

Paying off alimony debt

Obtaining a certificate of alimony debt from bailiffs

Summary

The issue of alimony after divorce is one of the most painful and problematic, among other issues of civil legal relations. It is very complex, not always clear and fair. Therefore, the legislator was unable to clarify the procedure for making alimony penalties 100%, leaving the most controversial issues to the judges.

The party receiving alimony needs to know: how to calculate it, recalculate it, index it, etc. After all, bailiffs do not always perform their duties in good faith, vigilantly monitoring every penny in the recipient’s account. Therefore, you need to take care of your money yourself. Only then can all issues be resolved in a timely and efficient manner, without infringing on the interests of the child.

Recalculation at the initiative of the payer in order to reduce debt

There are several situations when recalculation may be required at the request of the alimony obligee:

1. Incorrect calculation by the bailiff. To do this, you need to contact the FSSP with an application and documents confirming the error. The method is relevant if part of the money was transferred by bank transfer, and the rest was handed over to the recipient and there are receipts for receipt. If this is not done, debt will accumulate in the amount of missing amounts, but actually paid.
2. Change of job. The bailiff may not know about this, and alimony will continue to be calculated at the same amount.
3. Registration with the Employment Center. Before registering as unemployed, alimony is calculated based on the average earnings in the country. After registration, the man must submit an application to recover payments from unemployment benefits in order to reduce their amount. If this is not done, you will have to pay the same amounts, and recalculation will be required in the future.

The reason may also be a sharp deterioration in financial situation. Dismissal at one's own request is not a basis for reducing the amount of alimony, which cannot be said about a reduction in staff: in this case, the payer has the right to apply for a reduction in charges by submitting supporting documents to the bailiff.

Legal assistance

Recalculation of alimony is considered an important task.
The main goal is to prevent the child’s life from deteriorating. However, many do not know how to approach this task? The situation can become very complicated. For example, if the father does not work, pays meager amounts, is registered with the Employment Center, and is hiding from the bailiffs. A difficult task falls on the fragile shoulders of a single mother. To prevent the situation from worsening, contact the lawyers of our portal. They will help with calculations and recalculation in different ways - solid, mixed form or share of earnings. Lawyers will draw up claims, statements and complaints about the inaction of bailiffs - in order to speed up the recalculation of alimony. Timely help guarantees the best outcome for the child. Attention!

• Due to frequent changes in legislation, information sometimes becomes outdated faster than we can update it on the website.
• All cases are very individual and depend on many factors. Basic information does not guarantee a solution to your specific problems.

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Author of the article

Irina Garmash

Family law consultant.

Author's rating

Articles written

612

Recalculation at the initiative of the recipient to receive a penalty

The reasons for the recipient to submit an application for recalculation are:

1. Failure to pay child support in full. For example, if the alimony obligee transferred part of the payments through the bank, and promised to give part in cash, but did not fulfill the promise. The penalty is recovered in the amount of the underpaid amount.
2. Indexing. Despite the fact that the bailiff must index payments independently, this requirement is often not observed.
3. Collection of alimony for the past period. If the amount of the penalty exceeds the amount specified in the collection order, a repeated recalculation is made.

Important! If the alimony payer fulfilled its obligations in good faith and timely transferred funds to support the child in full, the recipient does not have the right to claim an upward recalculation for the past period, even if the financial situation worsens.

Indexation of alimony

Indexation is carried out to stabilize the material well-being of citizens in accordance with the level of the cost of living and the growth of consumer prices. Alimony payments are also indexed, and the PM is taken for calculation.

Since January 2021, the monthly wage and minimum wage have been equalized and amount to 12,130 rubles. If payments were previously assigned in accordance with the minimum wage, the PM is subsequently used for indexation.

For recalculation the formula is used:

PM/PM2 x A

Where PM is the new minimum amount for living, PM2 is the old one, A is alimony payments before indexation.

For example:

In March, the PM is 10,000 rubles, in April it is increased to 10,500 rubles. RUB 8,000 is paid per child.

10,500 / 10,000 = 1.05 – PM growth index.

8,000 x 1.05 = 8,400 rub. – new payment amount.

Who does the recalculation?

There are several options depending on the situation:

1. The IL is submitted to the accounting department at the payer’s place of employment. The accountant must recalculate payments independently, but the claimant can submit an application.
2. IL is with the bailiff. He is the one who does the recalculation.
3. The IL was brought to the Employment Center or Pension Fund. Indexation is carried out by accountants of these organizations.

If there is an alimony agreement, indexation features may be included in its terms. In the absence of these, the provisions of Art. 117 of the RF IC and recalculation is carried out on a general basis.

The agreement is equivalent to IL and can be submitted to the accounting department for automatic deductions. When paying voluntarily, alimony is indexed by the payer independently.

How to recalculate alimony?

To calculate alimony and arrears, several steps are performed:

1. The payment amounts are added up according to the number of months of non-payment. If payments are set as a share of the salary, 25% is transferred for one child, 33% for two, 50% for three or more. Alimony in a fixed amount is established depending on the PM.
2. If the payer does not work, the average salary in the country is used for calculation.
3. The resulting amount is multiplied by 0.1%. The result is a penalty for 1 day of delay.
4. The penalty is multiplied by the number of days of delay.
5. As a result, the principal amount of alimony and the penalty are subject to addition.

If the initiator of the recalculation is the alimony obligee who wants to reduce payments, documentary evidence of valid reasons is provided.

The final amount is determined by the court depending on the circumstances. It is possible to fully or partially satisfy the claims or reject them.

What will the judge do?

Before recalculating payments and making a decision to reduce or deny it, the court will familiarize itself with the case materials and important features of the lives of both spouses and their children:

• How large is the payer’s income relative to the average wage in the region of his residence, as well as the amount of alimony in a fixed amount or in percentage terms;
• Can the payer and his other dependents live on the funds remaining after paying alimony;
• Does the payer have alimony obligations to other persons;
• The share of the total income of the payer that goes to each of the recipients of payments will also be calculated (should not exceed 33%).

In case of a positive decision from the judge, the amount of payments on a regular basis will be reduced exactly to the extent to which the payer will be able to transfer funds in favor of his child. It is impossible to stop paying child support completely before the child becomes an adult.

Procedure for recalculating alimony

The first step is to independently recalculate payments to find the error of the bailiff who calculated them, or to collect evidence of good reasons for reducing the penalty.

The next steps look like this:

1. The application is submitted to the bailiff. If there is an unfounded refusal to recalculate, the actions of the bailiff are challenged through the court or the head of the FSSP.
2. After the procedure, the applicant receives a decision on recalculation. Copies are also sent to the persons responsible for calculating alimony.

The reason for refusal to recalculate may be the lack of grounds, therefore, before applying to the FSSP or the court, it is necessary to carefully prepare the evidence base and documents.

Appeal to the bailiff

Collectors and alimony payers can contact the bailiff, except in cases where a reduction in the amount of alimony is required. The interests of the child are affected here, so the proceedings take place in court.

An application for a FSSP employee must contain the following information:

• name of the FSSP;
• Full name of the bailiff;
• date and IP number;
• Full name of the debtor and the child for whom alimony is paid;
• date of last payments;
• a request to determine the amount of debt or review the penalty if it is calculated incorrectly;
• a list of attached documents.

At the bottom of the sheet is the date of compilation and signature. The decision on the application is made by the bailiff within 3 working days and is formalized by decree. Copies of the decision are sent to the parties to the proceedings no later than the day following the day of issuance.

Filing a claim in court

If the bailiff's decision violates the rights of the child, the debt collector or the alimony payer, a lawsuit is filed in court. The same applies to changes in the amount of alimony up or down.

The statement of claim must contain information:

• on the name of the judicial authority;
• the name of the FSSP unit;
• Full name of the employee whose decision is being appealed;
• references to legal norms violated by the bailiff;
• claims: to recognize the resolution as invalid in full or on individual points, to recalculate the penalty or the main part of alimony, etc.

One copy of the claim is submitted to the court secretary, and the second copy is marked as acceptance. The initiation of proceedings is carried out by the judge within 5 working days from the date of acceptance of the documents. No more than two months are allotted for the consideration of cases of challenging actions.

A court decision that does not satisfy the plaintiff or defendant is appealed before it comes into force. Afterwards only the cassation is submitted.

Is it possible to challenge the decision?

If it turns out that one of the parties involved in the process was not satisfied with the decision, then it can be challenged. There are two ways to do this:

1. He will go to court with a complaint against the actions of the bailiff and a request to issue a ruling to cancel it.
2. Send a lawsuit to court asking to determine the amount of debt.

Most often, complaints against bailiff decisions are received in the following cases:

• If they did not take into account all the payments made by the alimony. In this case, it is required to provide evidence that they were carried out.
• If the average salary was taken as the basis for the calculation, then the payer at that time had additional income.
• If the bailiff took into account the income received by the defendant as a result of one-time transactions. And this is prohibited by law.
• If purely mathematical errors were made during the calculation.

Arbitrage practice

In cases of recalculation of alimony to collect penalties, the courts most often take the side of the recipients. Let's look at a practical example.

Alimony obligations were assigned to citizen N. in May 2016. The amount of payments per child under the agreement is 25% of the salary of 45,000 rubles, or 11,250 rubles. respectively.

The man stopped paying alimony in June 2021, a penalty began to accrue, and the claimant turned to the FSSP. Subsequently, the bailiff calculated the debt using old data, without taking into account indexation.

According to the agreement, alimony should be indexed every 3 months by 1.1 points: in August, November, February, May.

11,250 x 1.1 = 12,375 rubles. – from May to July inclusive. Debt 37,125 rub.

12,375 x 1.1 = 13,612 rubles. – from August to October. RUB 40,836 duty.

13,612 x 1.1 = 14,973.2 rubles. – from November to January. RUB 44,919.6 – debt.

14,973.2 x 1.1 = 16,470.52 rubles. – from February to April. RUB 49,411.56 - duty.

16,470.52 x 1.1 = 18,117.572 rubles. – from May to June or 36,235.15 for 2 months.

37,125 + 40,836 + 44,919 + 49,511.56 + 49,411.56 + 36,235.15 = 208,656.71 rub. – debt for 13 months.

208,656.71 x 0.1 = 208.66 rubles. – penalty for a day of delay.

208.66 x 395.6 (number of days) = 82,545.90 rubles. - penalty.

According to the bailiff, the amount of the penalty was calculated according to the old indicators and was significantly less. He refused to recalculate, and the claimant filed a lawsuit.

The claims were satisfied on the basis of a clause in the agreement obliging the alimony to be indexed every 3 months, which the bailiff did not take into account when calculating.