About alimony and children, or theses for family law reform

Grounds for calculating alimony

Equal rights for the maintenance and financial support of common children for parents are established by Art. 80 IC RF. The spouse or former spouse with whom the child lives has the right to collect alimony from the other party in any of the following ways:

1. Performance list. This is relevant if the father refuses to pay the money voluntarily, but attempts to conclude a child support agreement before going to court are not necessary. The result of the consideration of the case is the issuance of a writ of execution (IL).
2. Agreement on payment of alimony. It is drawn up between the parties by mutual agreement.
3. Court order. The claimant submits an application for an order to the court, and after 5 days he receives the finished document in his hands.

The basis for collecting alimony payments is the existence of an agreement, IL or court order. The claimant has the right to submit any of the submitted documents to the organization at the place of employment of the alimony obligee or to bailiffs.

When providing IL for an enterprise, alimony is withheld by the accountant monthly within 3 days after the salary is calculated by sending a payment order to the bank.

If the IL is sent to the bailiff, he has the right to transfer it to the debtor’s place of employment or take any coercive measures:

• seizure of bank accounts;
• restriction of the right to drive vehicles;
• property search;
• ban on leaving the Russian Federation.

A copy of the IL is always sent to the person obligated to pay alimony. If he pays the funds in good faith, the claimant does not have to transfer it to the FSSP, but this right remains with him.

Methods for transferring alimony

Alimony payments can be transferred to the recipient in several ways, which is regulated by law. When alimony withholding is ordered by the court, four ways of transferring it are allowed:

• to a bank account opened in the name of the recipient;
• to the recipient's bank card;
• postal transfer;
• in cash.

It is worth noting that the first two options for transferring alimony are relevant when payments are withheld from the payer’s wages through accounting. The last two methods of transferring funds are chosen if the alimony payer is an entrepreneur, or the payments are not taken from wages.

Considering that the fact of transfer of funds is not recorded by the bank, you should save postal receipts for sending alimony or take a receipt from the recipient. It is impossible to prove in any other way that the support of the child does not cease. The costs associated with transferring or sending alimony payments are borne by the payer.

On what income is alimony calculated?

The list of types of earnings of payers from whom alimony is withheld is approved by Decree of the Government of the Russian Federation No. 841. It includes the following:

• remuneration for work at the main place and part-time;
• allowances, salaries;
• fees;
• payments in foreign currency or in kind;
• bonuses and allowances established by the enterprise’s wage system;
• vacation pay;
• awards for professional achievements;
• additional pay for working on weekends and overtime;
• compensation for work in harmful or dangerous conditions;
• old age or disability pensions;
• scholarship;
• sick leave;
• unemployment benefit;
• any payments in case of staff reduction or liquidation of an organization;
• income of individual entrepreneurs from business activities;
• earnings from dividends and shares;
• rations (food expenses);
• compensation for damage to health.

Also, maintenance funds are accrued from earnings received from the contract for the provision of services.

Details of the income from which alimony is withheld.

What income is not subject to alimony?

The exception is the types of income from which deduction is not made:

• compensation for harm due to the loss of a breadwinner;
• maternity capital and other government payments;
• travel expenses, compensation in connection with moving to another area for work, using personal tools in work activities;
• compensation for injuries received while performing official duties;
• compensation in connection with death;
• state and regional payments at the birth of a child;
• insurance payments;
• financial assistance for funerals;
• alimony received by the alimony obligee;
• reimbursement of costs for trips to sanatoriums in the Russian Federation.

It will not be possible to recover funds from the inheritance, gifts or government payments received by the alimony payer.

Statement of claim for collection of child support

Amount of child support for one child in 2021

Exemption from payment of alimony for minor children

So, let us repeat – the main reason for exemption from child support is the child’s coming of age. But other options are also possible:

• The child underwent the emancipation procedure at the age of 16
• The child has entered into a legal marriage (according to regional legislation or subject to a reduction in the age of consent for good reasons)
• The child is adopted (by the mother's subsequent spouse or other person)
• The child support payer successfully challenged paternity of the child
• The child moved to the child support payer and began to live with him
• The child died
• The alimony payer died

If you still have any questions about the topic of paying child support, or you would like to clarify the nuances of your specific situation, the lawyers of the Prav.io portal will answer you.

Amount and form of alimony

The form of payment is determined by the claimant and established by the court. There are three types:

When collecting alimony as a share of the salary, the amount depends on the payer’s earnings and the number of children.

If alimony is collected in a fixed sum of money (TDS), the cost of living and the financial situation of both parties are taken into account.

The above is only relevant when claiming through court. When establishing alimony obligations by agreement, the parties independently determine the form, amount and procedure for payment.

Amount of alimony payments in 2018

According to regulatory legal acts, the amount of alimony must be no lower than the level of child support provided for in the full performance of obligations by both parents. In addition, the baby must receive assistance in an amount no less than the established minimum state standards. This refers to the living wage for citizens who have reached the age of majority.

If alimony is ordered by the court, the authority determines the amount of payments in accordance with the financial situation of both parents and their child. What matters here is the family status of the parents, health status and other circumstances related to ensuring the rights of the child.

It is important to understand that the costs of maintaining children are borne by both parents, and in equal shares. Therefore, to establish the amount of alimony, judges study in detail the materials provided and determine the needs of the child (children of different ages have their own nuances of maintenance, which is taken into account by the court).

As mentioned above, the Family Code regulates the limit for collecting alimony as a percentage of the income of the parents. If the specified funds are not enough for the normal life support of the baby, the court has the right to impose an additional fee in hard equivalent. In accordance with Art. 139 of the Labor Code of Russia, the amount of deductions for child support cannot exceed 70% of the total income level of one of the parents.

From when does alimony begin?

Child support is calculated from the date the claim is filed in court, regardless of the duration of the proceedings.
By agreement, the parties independently determine the date of occurrence of alimony obligations. When payments from various incomes are transferred:

• salary, allowance, other types of remuneration and sick leave: within three working days from the date of payment;
• income from business activities, profit from winning the lottery: within the period specified in the IL.

If the drawn up agreement was not submitted to the organization at the place of employment, the date of transfer of the salary to the alimony obligee does not matter: he must pay the money within the period established by agreement.

When submitting a document to a company, accountants are guided by a three-day period (Article 109 of the RF IC).

Alimony in marriage

Russian legislation does not prohibit receiving such payments without initiating divorce proceedings; the appointment of alimony in marriage is possible in the following situations:

• disability of one of the spouses
• the presence of a minor child and the parent’s avoidance of participation in upbringing – especially in the material part of the process

Let us note that the presence of any kind of addictions, destructive habits or low income in one of the spouses is not a basis for exempting him from alimony. Concealing income is also a legal reason to enter into a notarial agreement (by mutual consent), or by contacting the judicial authorities at the place of residence.

How is alimony calculated?

The obligation to calculate alimony when transferring personal income at the place of work rests with the accountant.

There are several features here:

1. The calculation takes into account income received after the date specified in the IL.
2. Withholding is made after deduction of personal income tax.
3. If the employee uses a tax deduction, the full amount of earnings is taken into account.

Example calculated for 1 child:

For one child, R. N. Martynov pays 25% of income. IL has been transferred to the accounting department. In July, the payer earned 50,000 rubles.

50,000 x 13% = 6,500 rub. – Personal income tax.

50,000 – 6500 = 43,500 rub. – “clean” salary.

43,500 x 25% = 10,875 rub. – alimony.

43,500 – 10,875 = 32,625 rubles. - the total is in the hands of the person obligated to pay alimony.

Example of withholding alimony from an individual entrepreneur:

S.V. Averyanov transferred 25,000 rubles for two children. monthly. The payer is an individual entrepreneur, alimony is collected in a fixed amount. The amount of his income does not affect payments, so he must transfer money even in the absence of earnings.

Example of retention in mixed form:

Vyrovskaya O.N. filed a claim for the recovery of mixed alimony for two children: 33% of earnings and 5,000 rubles. from the income received by the payer from renting out housing for 15,000 rubles. monthly. The claim was satisfied.

In a month, the person obligated for alimony officially earned 70,000 rubles. How is the calculation done:

70,000 x 13% = 9100 – personal income tax.

70,000 – 9100 = 60,900 rub. - “net” earnings.

60,900 x 33% = 20,097 rub. – alimony.

20,097 + 5,000 = 25,097 rub. – the total amount of alimony payments.

60,900 + 15,000 = 75,900 rub. – the debtor’s earnings excluding alimony.

75,900 – 25,097 – 5,000 = 45,803 rubles. – income after payment.

Calculation of child support if the father is unemployed

Based on Art. 83 of the RF IC, the recipient has the right to recover payments in a fixed amount if the ex-spouse does not have a job or is unofficially employed. When the payer registers with the Employment Center, payments are deducted from the unemployment benefit as a percentage.

When alimony debt arises, the amount to be paid is determined by the bailiff based on the average earnings in the Russian Federation.

Case study:

By a court decision, the man was ordered to pay 25% of his income. A few months later he quit and stopped paying child support. The recipient submitted an application to the bailiff to determine the debt, which was calculated from the average salary in the country - 35,000 rubles.

The calculation was made for 3 months of non-payment.

35,000 x 25% = 8,750 rub. – debt for 1 month.

8750 x 3 = 26,250 rub. – total amount.

Learn more about collecting alimony from a child’s unemployed father.

Payment of funds to parents

But not only parents must help their minor children, but the children themselves are simply obliged to support their parents, who at the moment do not work anywhere, i.e. not employed.

Again, it is worth noting that children can help their parents:

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• either voluntarily
• or with the help of a court decision.

Children should help their sick parents if they really need it.

They must pay money in order to provide them with specialized care after illness.

But there is an exception: if the parents were once deprived of the right to a child, then the children may not pay child support to their parents in the future. This too can only be decided by the court. .

It is also worth noting that if parents do not want to help their minor children, then such a responsibility falls on the closest relatives. They are the ones who will have to pay child support to these children. For example, these are employed brothers and sisters of the children’s parents, grandparents, etc.

Procedure for calculating alimony

To transfer alimony payments, the accountant must do the following:

1. Determine the amount of the payer’s earnings based on the timesheet and wage system.
2. Withhold personal income tax, calculate alimony.
3. Transfer the salary, reflecting alimony in the payment order - according to it, the money is transferred to the recipient separately.

Maintenance payments must be received by the claimant within 3 days after the accrual of earnings or other income.

Payment order

Completing this document when transferring alimony by the accounting department through the bank is mandatory. To do this you will need the following data:

• order number;
• Date of preparation;
• amount of alimony;
• TIN and checkpoint;
• name of company;
• Full name of the payer and recipient;
• name of the recipient's bank, account number, BIC;
• priority of payment – ​​first;
• purpose of payment – ​​child support (full name);
• basis for transfer: agreement, IL, order indicating the number.

The form of the instruction was approved by Order of the Bank of Russia No. 383-p dated June 19, 2012. You can use it to fill it out.

About alimony and children, or theses for family law reform

There are several aspects of family law that cause me some consternation, as a person primarily engaged in areas regulated by civil law (and, more precisely, by those norms that regulate business activities). We started a discussion about this with Andrey Egorov and Radislav Repin here (https://www.facebook.com/andrey.egorov.98/posts/2361552153898758?comment_id=2364321196955187), but there was a desire to discuss these aspects in more detail de lege ferenda. Which, in fact, is what I will do in this article.

Two sources made me think seriously. The first of them is the old work “The Theory of Alimony” (Ira Mark Ellman, California Law Review Vol. 77, January 1989), which has little to do with alimony in the Russian sense: in English, alimony is primarily payments by one of the spouses to another due to the divorce itself (irrespective of the need to support children); but this voluminous article itself, although written more than a quarter of a century ago, raises a number of important questions: about the special rights of a spouse who has refused to work in order to raise children; about the need for such a spouse to maintain the same standard of living after divorce, etc. The second is the German monograph “Schadenersatz fuer Kindesunterhalt” (Benedikt Wanke, ISBN 3-428-09322-4, 1997). It breaks down the entire legal nature of alimony (for a minor child) in German law.

I will not bore the reader with a review of these two profound works, but will simply outline the model of family law (in terms of alimony for the maintenance of minor children and the rights of divorced parents in relation to their children), which I see as most suitable for the socio-economic conditions that have developed in modern Russia conditions. More precisely, not even the entire model, but precisely those moments that differ from the order reflected in the current IC (and individual norms of the Civil Code).

So:

On the nature of alimony obligations:

1. In the most common scenario, a child support obligation for a minor child is a monetary obligation from a non-custodial parent to the other parent who (usually) resides with that child. The clarification “as a rule” was introduced as a clause for situations where a teenage child lives with one parent or another, but de facto only one parent directly finances his needs, and the second only transfers child support to the first.

2. Such an obligation arises at the moment of concluding an agreement on the procedure for maintaining the child (“agreement on the procedure for paying alimony”) or a court decision on the collection of alimony.

3. The specified obligation is the result of the transformation of a parent’s non-monetary (in-kind) obligation to support his child. More precisely, as a result of the transformation, the obligation to support the child (which does not have a fixed monetary value) is assigned entirely to the supporting parent, and the second alimony parent is left with only a monetary obligation.

4. It is important to note that this monetary obligation, being established by agreement of the parties, may not have a hard monetary value, but be tied to cost (for example: “pay the cost of such and such English language courses” or “purchase a musical instrument in accordance with the requirements music school").

5. Moreover, just as a loan agreement may provide for separate non-monetary obligations (violation of which will result in a penalty or change the deadlines for the fulfillment of monetary obligations), so an alimony obligation may contain accessory non-monetary obligations, for example: to issue notarial documents required by the consulates of foreign countries within a given time frame. consent for the child to leave. But this does not negate its monetary nature.

6. The creditor in this obligation is not the child at all, but the supporting parent, and the debtor is the supporting parent. This model is also suitable for cases where the “supporting parent” is a guardian, and the child support parent is the person(s) deprived of parental rights.

7. The rationalization of this model is as follows: at the initial moment of transformation (the initial obligation of the parent to support his child in a child support obligation), when the supporting parent files a claim or enters into an agreement on child support with the child support parent, a kind of regression takes place: the child support parent refused to voluntarily support the child (or could not come to an agreement with the supporting parent on the joint fulfillment of the in-kind support obligation), therefore the supporting parent was forced to solely support the child, and he has a special, monetary claim on the second parent, the amount of which is determined by the court or by agreement.

8. Frankly speaking, I would recognize even the very moment of ending cohabitation as a moment of transformation (at least for pre-teenage children). For maintenance as caring for a child, ensuring all his life activities, is truly possible only when living together with the child. During the period when the parents of such a small child are already living separately, even if the agreement has not yet been signed and the claim has not yet been filed, the parent living separately is already paying alimony, because cannot fulfill the natural obligation provided for by the RF IC. Accordingly, alimony should be “accrued” from this date, and not from the date of the claim/conclusion of the agreement.

9. Fulfillment of the alimony obligation can only be monetary and only to the supporting parent (unless otherwise provided by their agreement). Those. gifts and pocket money to a child, unless the parents have agreed otherwise, are not such fulfillment. On the other hand, any money received by the supporting parent from the child support parent (including during the period of separation before the claim/agreement) without indicating its purpose must be counted towards the payment of child support until otherwise proven.

On determining the amount of alimony:

10. The model for determining the amount of legal alimony as a percentage of the earnings of the alimony parent, in my opinion, does not stand up to criticism in modern Russia. Parents must take care of their child due to the SC. One parent does not fulfill this obligation, the second carries out the fulfillment independently, the first compensates him for this. But how does it follow that parents spend 25% of their joint income on a child (and 33% for two children), what generally determines these figures (from which the courts deviate, but very rarely)?

11. In particular, in families with a family budget range of 120-180 thousand (outside Moscow) or 200-250 thousand (in Moscow), in practice, most families spend not 25% of their income on a healthy child, but significantly less. In families with lower incomes, the deviation from 25% is not so significant in percentage terms, but very significant in absolute terms for these families, where even 5,000 rubles is a significant amount.

12. But even the very concept that the child support payer should pay the same amount that he would spend on the child if he lived in the family does not entirely correspond to the modern moral climate and social reality. After all, if in a family the parents decided not to pay for the child’s music school or English language courses this year, but instead buy the mother a new fur coat, change the plumbing, or go on vacation, leaving the child (for the period permitted by law) with the grandmother, the guardianship authorities cannot to force them to do otherwise, even if the parents openly declare this decision on social networks. When living separately, this freedom (to independently determine the financial and other resources actually allocated to support the child) remains in the hands of the supporting parent. The alimony parent no longer has this freedom; it was lost at the moment the obligation was transformed into a monetary one.

13. Based on the above, the amount of alimony should be determined in a fixed amount based on the average level of costs per child inherent in such families in such a region.

14. A difficult question: should the child support parent bear exactly half of the costs of maintaining the child? There are arguments both in favor of a discount (reduction) and in favor of a premium (increase).

15. Argument in favor of discount: firstly, as stated above, the child support parent does not have the freedom to control and determine the actual support of the child to the same extent as the other parent. Secondly, the alimony parent is deprived of the opportunity to have daily contact with the child (which is presumed to be valuable for a parent with a certain level of income as an emotionally complex individual).

16. Arguments in favor of the bonus: firstly, the supporting parent could, while on parental leave, deliberately give up his career and lose his qualifications. On the other hand, as a rule, such cases are typical for families with high incomes, where the mother’s motivation not to return to active and burdensome work is often associated with an unwillingness to work, and not at all with a desire to devote herself to raising children. But there is a second argument: the marriage initially existed in conditions of such unequal income of the spouses that even half of the costs of maintaining a child were not enough for the parent remaining with the child to maintain the child’s standard of living (i.e., such a parent’s own income is too small).

17. The implementation of the above provision is not as difficult as it might seem. This is just a short table (with a separate coefficient for each region of the Russian Federation), where, based on the total income of the father and mother, whether they have a higher education, and the cadastral value of the real estate they own, the cost of raising a child is determined.

18. By default, the amount of alimony is half of this cost, but the court may apply (in the percentage established by law) a discount or premium, taking into account the above arguments.

19. The very concept of a child’s standard of living being unchanged after a divorce has a certain flaw: all children run the risk that their parents may simply become poor (or one of the parents may die); Divorce of parents is the same social risk, and protection of children from it should not be absolute.

On the consequences of such a model for civil circulation:

20. Agreements on alimony cannot be challenged on the grounds that they violate the interests of the child, because they are not concluded in the interests of the child.

21. Rights of claim for alimony, the amount and procedure for payment of which are determined by a court decision that has entered into legal force or a concluded alimony agreement, should be recognized as assignable and pledged; Thus, Article 383 of the Civil Code will require changes.

22. Compensation in the form of real estate under a child support agreement goes to the supporting parent (and not to the child, as is the case in current practice).

23. The parties can enter into an agreement on alimony in advance (in case of future termination of joint maintenance of the child). Such an agreement is somewhat similar to agreements on the procedure for settling losses that have not yet been caused (these occur in some industries)

24. Moreover, the parties must be competent to enter into such an agreement even before the birth of the child. From the point of view of legal policy, this is a completely acceptable way for a woman (and even a man) to protect her interests in the event of an unwanted pregnancy.

25. The alimony agreement may be secured by collateral or other means.

26. The alimony agreement may provide for a change in the amount of alimony depending on the performance of certain actions by each parent, incl. and actions related to the exercise of their parental rights. Such structures (essentially hybrids of agreements on alimony and on the order of upbringing / communication) will allow mothers to implement the structure “you do not pay any significant alimony as long as you do not interfere with my life, do not write to the guardianship authorities, and give timely consent to travel abroad for the purpose of applying for a visa,” and for fathers to implement the concept “you receive money in excess, as long as the child studies at the school that I chose, as long as I see him and go on vacation when I want, etc. ."

About the place of residence and about traveling abroad:

27. A separate narrow aspect that is related to what is being discussed only situationally, and not conceptually: parental consent for the child to travel abroad.

28. Currently, a child can travel abroad (Article 20 of the Federal Law on the procedure for exit and entry) accompanied by any of the parents (and also, according to the FSB clarification of March 15, 2019, accompanied by a third party with the consent of either parent).

29. Thus, the consent of the second parent is not required, but the law left him with an exotic measure of legal protection: a statement from such a parent to the relevant authorities (see Decree of the Government of the Russian Federation of May 12, 2003 No. 273) about disagreement with the departure. However, neither the law nor the specified by-laws force the author to somehow motivate his disagreement. Even unmotivated disagreement entails a ban on the child leaving the Russian Federation, which can only be overcome by a court decision. At the same time, in practice, the courts lift the ban only on the next trip, and refuse to lift it prospectively (for example, the decision of the Pervomaisky District Court of Vladivostok No. M-428/2014 2-1015/2014 2-1015/2014~M-428/2014 dated April 2, 2014: https://sudact.ru/regular/doc/Y5MJznOSRJW0/), hypocritically referring to the right of a parent to participate in raising a child.

30. Supporters of maintaining this order defend that it protects the parent from the threat that his child will be permanently taken away from the Russian Federation or taken to a vacation spot where there are serious risks to the health and life of the child. The comicality of this argument is that moving and generally moving with a child on the territory of the Russian Federation are not limited in any way. A mother living in Vladivostok can move with her child to Moscow, and the father will have to come to terms with this (unless he establishes through the court the child’s place of residence with him, which is extremely unlikely in modern Russian realities). The same mother can take her child to the forests of Altai or the mountains of Dagestan, where her daughter is in danger from many things.

31. Accordingly, it seems necessary to establish (by amending Resolution No. 273) a mandatory statement in the submitted application of disagreement to leave the motivation, incl. a detailed description of the negative consequences that the parent fears, and establish a closed list of such significant consequences, as well as establish by law a fine that is automatically imposed if the court finds such a prohibition to be unfounded.

32. A separate problem is represented by notarized consents, which are required from a parent (even if the child is traveling with the other parent or with a person to whom that other parent has given consent) in the event that the other parent is applying for a visa for the child. Here, unfortunately, a consent issued once before the child reaches adulthood does not always help (even if it lists the country for which a visa is being applied for), because the visa departments of some consulates make demands on the “freshness” of the consents, i.e. require that consent was issued at least a year or even six months ago.

33. By the way, the EU Visa Code (Regulation 810/2009 as amended) contains only a requirement for parental consent when a minor is traveling without parents (and not “without a parent”), and certainly does not say anything about the validity period of consents . But alas, the demands of the body of a diplomatic institution in this case cannot be challenged. The only possible solution seems to be a design where the guardianship authority (there is no need to overload the courts) is vested with the right to limit parental rights in this part and issue such consents on behalf of the parent who evades issuing notarial consent.

34. Of course, with the current judiciary, which is imbued with paternalism and committed to Soviet ideas about the family with their high degree of state intervention in family life, many of these changes will be stillborn. But not all.

Lawyer's answers to questions about calculating alimony

How to find out how much alimony is accrued?

The creditor can obtain information by viewing the history of transactions on the bank account. For this purpose, the payer has the right to order a salary certificate, which reflects all deductions.

You can find out the debt on the official website of the FSSP or by ordering the corresponding resolution from the bailiff. The document contains detailed information for each month.

How is alimony calculated if the payer is not officially employed?

Payments are collected in a fixed amount. If debt arises, the calculation is based on average earnings.

What are the features of calculating alimony when the payer is on leave without pay?

The accountant calculates payments from the actual accrued salary. If the person obligated to pay alimony is on long-term vacation, a debt will arise, which will be calculated by the bailiff based on the average salary in the Russian Federation.

An exception is payments in TDS: they are transferred even if there is no income at all.

How is alimony paid if the payer lives abroad?

Moving to another country does not relieve you of child support obligations. The parties can enter into an agreement. When collecting in court, payments are calculated in a fixed amount under Art. 83 of the RF IC, where the receipt of wages in foreign currency by the person liable for alimony is the basis for recovery in the TDS. Money is transferred in rubles, conversion and commission are paid by the alimony payer.

From what salary is alimony calculated: clean or dirty?

In case of shared recovery, only official, documented income is taken into account. The recipient can try to prove the fact of accrual of “gray” wages and recover money from it through the court. Read more about “clean” and “dirty” wages here. If payments are collected in a fixed amount, the payer’s earnings do not matter.

Debt on alimony

It is noteworthy that payments may be in arrears. Then a sanction is assessed on it in the amount of 0.5% of the unpaid amount. Moreover, interest is assigned for each overdue day.

The law also provides for the collection of alimony for the period that preceded the plaintiff’s filing of an application with the court. Especially if there is evidence to support the plaintiff's repeated and unsuccessful attempts to obtain financial assistance from the evading parent. If the court decision is positive, it is possible to receive funds no more than three years before the initiation of judicial review (Article 107 of the Family Code of the Russian Federation).