Sample claim for collection of alimony penalties in 2021

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Anastasia Klimenkova (Lawyer)

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Author: Anastasia Klimenkova (Lawyer) (All articles by the author)

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Alimony disputes are very common in court practice. Moreover, questions may arise both during the trial and when working with the bailiffs’ case. If the payer does not transfer money to the recipient for a long time, the authorized bodies recalculate alimony payments for the past period and index them (if necessary).

Who can claim a penalty

The recipient with whom the alimony agreement was concluded, or who receives funds for maintenance by a court decision, has the right to demand a penalty for alimony.
These are former spouses with children left in their care, or elderly parents. The recipient's right to receive penalties for alimony payments arises the very next day after the first day of delay. Article 115 of the Family Code talks about the payer’s liability for each day of non-payment. ConsultantPlus experts looked at how to achieve alimony:

for minor children;
for adult children.

Use these instructions for free.

How are alimony payments for the past period recalculated?

Recalculation of the amount of alimony is carried out in one of two ways:

as a percentage of wages and other income of the payer;
in a fixed amount of money (read more about this here )

When submitting an application for recalculation, the interested party must indicate in what form it is desirable to recalculate the amounts.

According to the provisions of Article 113 of the Family Code, percentage recalculation will be carried out upon provision of a certificate of the amount of salary for a specified period.

The document must be submitted to the accounting department of the company making the withholding or to the bailiff department.

If during the established period the salary of the alimony payer has not increased, although the average salary in the country has increased along with the minimum wage, the enterprise is obliged to recalculate wages, as a result of which alimony payments will also increase.

applications for recalculation of alimony
applications for indexation of alimony

If during the requested period the payer was not officially employed or did not provide a certificate of salary amount, recalculation will be made taking into account the average income of workers in the country. This information can be found in the Federal Statistical Office.

Recalculation of alimony payments in a fixed monetary amount is carried out in accordance with the requirements of the legislation on indexation.

An increase in the cost of living in the region automatically causes an adjustment in the calculation of alimony for the current or previous period.

In the area of alimony, the indexation process is carried out so that the depreciation of our country’s currency does not have a negative impact on the level of financial security of citizens receiving monthly payments for the maintenance of dependents.

To recalculate, the bailiff uses the indicators established in the specific region where the recipient of the funds lives. In this case, the minimum wage level of the payer is not taken into account. If a region (region, etc.) has not established its own minimum wage figures, the figure for the country as a whole is taken as a basis.

Recalculation of alimony payments is carried out by a bailiff based on legal requirements or on the basis of a court decision. Adjustments to monthly payments are made depending on the amount of wages.

In this case, the change will be made when the data specified in the payer’s income certificate changes.

If the adjustment is made in relation to alimony in a fixed amount, the accounting data is the change in the level of the minimum wage in a particular region.

In any case of recalculation of alimony payments, these powers are assigned to the bailiff who is conducting the case. The court only establishes the type and procedure of recovery.

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How to calculate the amount

From August 10, 2018, the amount of the calculation of penalties for monetary obligations was reduced to 0.1% of the total amount of non-payment - No. 224-FZ of July 29, 2018. How to determine the amount of alimony debt is described in Art. 113 of the RF IC: the amount of debt is determined by the bailiff on the basis of available documents. It is necessary to obtain a certificate about the period of non-payment and the amount of debt for each month separately.

The amount of the penalty is calculated independently using the following formula:

SNM = SZA × 0.1% × KDPr,

Where:

SNM - the amount of the penalty for the month of delay;
SZA - the amount of outstanding payments per month (calculated by the bailiff);
KDPr - number of days of delay.

The total amount of compensation is formed by adding the data received for each month. The calculation is attached to the claim for alimony penalties. If it is difficult for you to make an independent calculation, contact the bailiff who is handling the case of collection of alimony obligations.

Sample application to bailiffs

Is it possible to recalculate alimony?

Alimony for the past period can be recalculated in two cases:

In enforcement proceedings - if enforcement proceedings have already been opened (based on a court order, court decision or settlement agreement), and the payer for one reason or another did not fulfill alimony obligations, as a result of which a debt arose, it must be calculated by the bailiff and paid by the payer.
In a lawsuit , if a dispute arises between the parties about the amount of alimony debt, you can file a claim with the court to recalculate the debt.

How to file a claim

After all calculations have been made, a claim is filed to recover the penalty. The statement of claim is drawn up according to standard rules:

in the header of the claim, indicate to which court the petition is being filed, and the contact information of the plaintiff and defendant;
the descriptive part of the claim contains a brief but understandable statement of the circumstances of what happened: the grounds for payment of alimony, how long there has been no payment, the amount of payments;
what the plaintiff is asking the court to do;
list of attached documents.

Stipulated state duty

According to the law, the procedure for filing an application by a party to enforcement proceedings is not subject to a fee. However, in accordance with paragraph 4 of Art. 112 of Federal Law No. 229-FZ, a debtor who has arrears in the payment of periodic payments is charged an enforcement fee of seven percent of the amount of each debt.

The calculation of the amount of the fee in this case will look something like this: 100,000 (debt for alimony) x 7% = 7,000 rubles (amount of the fee).

The fee paid to the budget is returned only if the judicial act or executive document on the basis of which the proceedings were initiated is canceled.

What documents should I attach?

Documents confirming the circumstances of the case and the rightness of the plaintiff are attached to the claim. It can be:

a copy of the marriage and divorce certificate;
documents confirming the assignment of payments (writ of execution, judicial act, etc.);
a copy of the resolution on debt settlement;
calculation of the penalty for alimony debt for the required period.

The claim shall be accompanied by any documentary evidence confirming the validity of the claims.

Reasons for debt formation

Alimony debt can arise both at the stage of forced collection and during the period of voluntary execution of a court decision or notarial agreement.

It is important for the debtor to know the following. Even if proceedings have not been initiated against him, failure to voluntarily comply with a judicial act leads to the formation of debt.

If the debtor pays voluntarily, in order to avoid the formation of a debt, it is necessary to save documents confirming the fact of payment of alimony (receipts, bills, extracts, receipts, etc.).

In addition, debt can arise for a number of other reasons:

due to delay in payment of wages. In such circumstances, the debtor is released from the accrual of penalties, but is not released from the main obligation;
due to the lack of a stable source of income;
in case of putting the debtor on the wanted list.

Regardless of the reason for non-fulfillment of the obligation, during the period of non-payment the debtor accumulates debt.

In a fixed amount of money

The procedure for recalculating alimony for the past period is provided for by the norms of family law. If the payment is set as a fixed amount, then it is subject to regular indexation.

The amount of indexation depends on the increase in the cost of living established in the region for minors. If a subject of the Russian Federation does not establish such an indicator, then the bailiff should focus on the average cost of living in the Russian Federation.

The absence of regular indexation will lead to a decrease in the purchasing power of material support for a disabled person, which violates his legitimate interests.

Appealing a decision on debt calculation

According to Art. 122 Federal Law No. 229, the claimant or debtor is given 10 days to appeal from the moment the resolution is issued. It often happens that the parties do not know about its issuance due to lack of proper notification, and then the period is calculated from the date of receipt of the information.

You can appeal the decision in several ways:

filing a complaint about the actions or inaction of the bailiff to a senior manager of the FSSP;
sending an administrative claim to court.

Reasons for appeal

The reason for the appeal is underestimation or overestimation of the amount of debt. The debtor can also reduce it in court if there are good reasons for the debt:

long-term absence from work due to layoff;
the need for expensive treatment of the payer, receipt of disability;
an increase in the number of dependents in the family of the person receiving alimony;
use of unreliable indicators when calculating debt.

Additional factors may also be present:

personal interest of the bailiff in relation to the debtor or collector;
inaction of the bailiff when searching for the income or property of the alimony payer;
use of incorrect terms of non-payment when calculating;
debt accounting without indexation of alimony.

Let's look at a practical example:

Ilchenko O.N. was ordered to pay alimony in a fixed amount - 10,000 rubles. for the maintenance of his son. He hasn't paid for 12 months. According to the law, payments are indexed in accordance with the increase in the cost of living.

The debtor's ex-wife decided to collect from him a penalty and the principal debt for 1 year. To do this, she turned to the bailiff with a statement.

In the resolution, the bailiff reflected incorrect indicators without taking into account indexation. The claimant filed a complaint about the incorrect actions of the FSSP employee to his supervisor. After 10 days, she received a response that the complaint had been satisfied, and after a few more days she was able to receive a resolution with the correct calculation.

How to file a complaint?

The requirements for the content of the complaint are reflected in Art. 124 Federal Law No. 229. It includes the following information:

position, full name of the bailiff;
Full name, registration addresses of the claimant and debtor;
information about IL;
requirement to appoint debt recalculation;
date of registration and signature of the applicant.

The complaint can be submitted in person, sent by mail or using the electronic service on the FSSP website.

How bailiffs calculate debt

There are several methods for calculating debt. Their application depends on the social status and financial situation of the debtor. It has special features for settlements with non-working debtors, pensioners and disabled people who receive irregular income.

Revenue share

The most common procedure for calculating debt is the use of Art. 81 IC RF. It clearly defines the shares:

¼ – 1 child;
1/3 – 2 children;
½ – 3 or more.

In such shares, alimony is collected from the total income, which takes into account all cash receipts, with the exception of social benefits (except for pensions) and receipts from winning the lottery and inheritance.

How to appeal a decision in court

Complaints against the actions (inaction) of bailiffs are considered through administrative proceedings in city or district courts at the location of the FSSP unit.

The order of consideration in this case is as follows:

The applicant draws up a complaint in accordance with the requirements of Article 124 of the Code of Administrative Proceedings of the Russian Federation. In this case, the administrative claim must include information about the applicant and the defendant, the decision being appealed, as well as the requirement to invalidate the disputed document and make a recalculation;
The judge examines the claim and within three days makes a decision on accepting it for proceedings. At the same time, copies of the ruling are sent to the plaintiff and the defendant;
Next comes the case review process, which takes no more than two months, including preparation and trial;
Based on the results of the consideration in the deliberation room, the judge makes a sole decision, copies of which are handed over to the participants in the process (the party to the proceedings and the FSSP representative).

Resolution of the FSSP employee

The execution of the resolution should be carried out by the bailiff, who was appointed responsible for a specific case. The execution of the resolution can be carried out either on his own initiative or after filing a petition by the claimant or other interested person.

The application form is optional. In the case where the submission of the document is not carried out by the applicant himself, but by his representative, he must have a power of attorney allowing him to carry out this operation. A copy of it must be attached to the application.

The representative of the FSSP issues a corresponding resolution, which he himself signs and stamps. To carry out this action, at least one of the reasons given in the list must be present:

If the collection carried out on the basis of a notarized agreement was carried out according to a court verdict.
If malicious evasion of child support payments forced the plaintiff to apply to the court with a request to deprive the defendant of parental rights or bring him to criminal liability.
If an application for recalculation of alimony submitted to the bailiffs is being considered.
If there is a need to index alimony payments.