Most often, the application for divorce, if filed by a woman, contains an additional claim for alimony for the child or children. But this is not an absolute norm.
Sometimes claims for alimony are filed some time after a divorce. For example, for a year, or even more, the children’s father regularly transferred money for the children on a voluntary basis, and then “let everything go.” And now the mother prefers the legal way - a percentage of wages or a fixed amount monthly.
It is important for her to understand from what moment the calculation of alimony will begin? If you ask this question to private individuals far from jurisprudence, the answers can be very different:
- From the date of divorce
- From the date of the court decision
- From the day the court verdict comes into force
- Since the opening of enforcement proceedings in the FSSP
- From the day the alimony payer receives a notification from the FSSP
All of the above options are incorrect! This article is devoted to how the period for starting the payment of alimony in court is calculated.
How are accrued alimony payments collected?
After considering the case and making a decision, the court issues a writ of execution. The plaintiff can - personally or, entrusting this task to the court - transfer this document to the federal bailiff service at the registration address - at the place of residence of the alimony payer.
In addition, he can transfer the writ of execution to the defendant himself or his employer to the accounting department. After the start of enforcement proceedings, the payer will pay alimony under the control of bailiffs. And here the question of when alimony is collected is already obvious - immediately, in an amount equal to the monthly payment, and then at monthly intervals.
How are funds collected for child support?
After the court's decision, the plaintiff is given the original document - the writ of execution. He needs to send the demand through the bailiff to the accounting department at the defendant’s place of work. As soon as the order is recorded in the accounting journal, the deduction of money from the salary begins. They are sent to the account of the alimony recipient or his postal address. As noted above, payments are made from the moment the claim is accepted in the court office. Thus, if the sheet arrived on May 12, and the application was submitted on March 12, the money will be withheld exactly from March 12.
Money is withheld from the following types of payments:
- fixed salaries;
- fees;
- payments to civil servants and municipal employees;
- bonuses, allowances, fees;
- vacation pay;
- some types of pensions.
The list is based on Article 82 of the RF IC: “Types of earnings and (or) other income that parents receive in rubles and (or) foreign currency and from which alimony is withheld for minor children in accordance with Article 81 of this Code are determined Government of the Russian Federation."
When should I expect my first payment?
Despite the fact that the law clearly defines the day from which alimony is calculated, this does not mean that the same day can become the day of the first payments. And even the timing of the court order does not guarantee that payments will begin to be collected from the defendant immediately upon satisfaction of the claim. The timing of cash accruals depends on a number of reasons:
- Efficiency of the FSSP work. There are often cases when, for organizational reasons (lack of personnel, heavy workload, other imperfections of the system), the case is not accepted for production immediately. In this case, the plaintiff also should not, as they say, wait by the sea for weather. If the bailiff service has not provided the recipient and payer with confirmation that the proceedings have been opened, the inaction of the service should be appealed in court.
- Irregular payment to the payer. If the defendant receives a salary officially, but his employer is late with payments, the timing of the first remittance will depend on the date the defendant receives the salary. If wage delays are large and it is proven that the employer is to blame, the payer may even be exempt from fines and penalties for non-payment of alimony. There is nothing that can be done in this situation.
- Employment of the payer. From what period alimony is calculated largely depends on the ways in which the defendant receives income. If the payer works officially, then funds to pay alimony payments will be transferred to the claimant from the next payroll. If the defendant does not receive an official salary, then it will be possible to clearly answer from what time child support will be assigned only after the bailiffs discover the payer’s sources of income and his property, which can be sold to pay off the debt. In this case, it may take more than one month until the money is received.
Attention! According to the law, the period for payment of payments by the alimony payer or his employer to the recipient’s account cannot exceed three working days.
Where does the collection of alimony begin?
Alimony obligations can be fulfilled either voluntarily or compulsorily.
If the child’s parents have no disputes regarding child support, they can draw up a notarized agreement on the payment of alimony, detailing in it the amount of alimony, terms, payment procedure and other important conditions. The agreement must be drawn up in writing and certified by a notary. Therefore, when drafting it, it is better to enlist qualified legal support. Parents can prescribe any conditions that suit both of them. It is important that the agreement does not contradict the interests of the children and does not reduce the amount of payments that would be ordered by the court in this particular situation.
If a parent living separately refuses to voluntarily support his minor children, alimony is collected in court. Russian judicial practice is such that, in most cases, recovery is made from the father of the child.
Alimony is a tax on newfound freedom (folk).
So, for example, Mrs. R. turned to us for advice on the issue of collecting alimony for minor children. Our lawyers explained the following important issues to her:
Child support from the moment paternity is established
In a situation where, before filing for alimony, paternity must first be established, the answer to the question from what moment alimony begins to be accrued for the child sounds similar: from the moment the application is submitted to the court office. The main thing is that the statement of claim contains a demand for the recovery of alimony payments from the defendant.
If this requirement is not included in the claim, filing an application for the collection of alimony payments is a separate procedure, and the accrual will begin from the date of filing this application. For this reason, it is advisable, in order to save time and effort, in a situation where it is necessary to recognize the defendant as the father, through the court, submit a request for the collection of alimony in the same application.
Time limits for consideration of alimony cases
How long can it take to consider a claim in court? This question worries many potential alimony recipients.
The time frame for consideration of claims depends on the type of proceedings, as well as whether the parties appeal the court decision.
Order proceedings
The case is considered according to a simplified version, which is possible if:
- there are no controversial situations regarding children,
- the claim does not contain demands to challenge or establish paternity;
- there is no dispute regarding the amount and procedure for calculating alimony.
The judge considers the case for about 5 working days (from the date of filing the claim), then makes a decision, which is formalized by a court order. The application will be considered in the absence of the parties, and the court decision will be sent to the payer by mail. The parties are given 10 days to appeal, after which the decision will come into force.
To summarize: in writ proceedings, a court decision to withhold alimony can be obtained 2-3 weeks after filing the claim.
If the alimony payer appeals the court order, it will be canceled. The case will be sent for re-examination, but this time as a claim proceeding.
Claim proceedings
If there is a dispute about children or the amount of alimony, the court will consider the case through a claim procedure. In this case, meetings are held with the participation of the parties and third parties, the judge hears arguments, examines the submitted documents, and, if necessary, calls witnesses.
The claimant sends the statement of claim by mail or in person (by courier) to the court at the defendant’s place of residence. The document is registered and handed over to the judge, who accepts the case for proceedings within 5 days.
The judge will not accept the statement of claim for consideration if it is drawn up incorrectly or if the documents referred to by the potential plaintiff are missing. In this case, the applicant is given time to eliminate the deficiencies.
After 10 working days from the date of filing the claim, the judge notifies the parties of the date and time of the first hearing.
It is difficult to predict when a final decision on a child support claim will be made. But not before the court hears the arguments of the parties and examines the evidence presented.
The decision will come into force after adoption and will be immediately handed over to the plaintiff (or the document will be sent by mail). The decision can be challenged. In case of cancellation, the collected funds will be refunded.
We described in this article how to return previously transferred alimony payments.
Alimony for adult (adult) children
As mentioned above, the period for paying child support payments is from the moment the application for collection is filed until the child reaches the age of majority. There are many rumors that it is possible to increase this period to 23-24 years if the child is studying full-time at a higher educational institution.
However, the law does not oblige parents to support adult children solely on the grounds that they are receiving vocational education, despite the fact that young people studying at a university really need financial support.
However, the law recognizes only adult children who are incapacitated for health reasons and who do not have sufficient material resources to meet their needs (who do not have their own source of income that covers all material needs) as needy. But at the same time, all alimony unpaid before the age of majority can be recovered upon the child reaching the age of majority and before the expiration of the three-year limitation period.
Important! If for some reason enforcement proceedings have not been initiated, payments must still be calculated from the moment of filing. This means that the spouse (or child upon reaching adulthood) has the right to demand full payments along with all fines, penalties and interest for non-payment.
What types of alimony are there and how does their type affect the collection procedure?
The procedure for deducting alimony from wages depends on whether it is:
1. Voluntary.
Such payments are made by the employer in accordance with the employee’s application. The main feature of voluntary alimony is that the person decides for himself how much percentage of his salary to pay.
2. Charged by force of law.
The grounds for such a charge may be:
- availability of a court decision (and writ of execution) to collect alimony;
- agreement between the parties to a family relationship regarding the payment of alimony.
Alimony can be divided into 2 categories:
1. Paid by parents (brothers, sisters) for the maintenance of children (brothers, sisters) under 18 years of age.
Alimony to minor citizens is paid from the income named in Decree of the Government of the Russian Federation dated July 18, 1996 No. 841. In particular, this list involves considering the average salary in various types (vacation pay, sick leave benefits, business trip salary) for calculating alimony.
In what cases alimony is withheld from sick leave, find out here.
2. Paid:
- parents for the maintenance of adult children who are recognized as disabled;
- adult children for the maintenance of parents recognized as disabled;
- one spouse in favor of the other;
- by adult citizens in favor of minor brothers and sisters;
- grandparents in favor of grandchildren (and vice versa);
- a pupil for the benefit of his teachers;
- a stepson or stepdaughter in favor of a stepfather or stepmother.
Such alimony is withheld from all income, unless otherwise provided by federal law. For example, Art. 101 of the Law “On Enforcement Proceedings” dated October 2, 2007 No. 229-FZ contains a list of income from which alimony is not collected for the specified categories of persons.
Attention! Recommendation from ConsultantPlus: A payment order for the payment of alimony is sent to the bank within three days from the date of payment of wages to the employee. When transferring wages to the account of a debtor employee in a bank or other credit organization, the employer is obliged... (for recommendations on how to prepare a payment order, see K+).
Limitation of actions
The law protects the right of children to receive financial support from both parents, including by the existence of a statute of limitations that expands the possibilities of collection. However, after the three-year statute of limitations expires, the claimant (most often the child’s mother) can no longer restore the possibility of demanding alimony through the court.
It is important to understand that the statute of limitations is not a matter of agreement between the plaintiff and the defendant, but is determined by law. However, the claimant can still restore the statute of limitations if the reasons for missing the deadline were valid and he can prove it.
Typically, the issue of limitation of actions is relevant to all property disputes resolved through court. However, in cases concerning family issues, the resolution procedure is different: alimony payments begin to accrue from the moment the claim is filed with the court office. The same period applies to the possibility of collecting alimony for the period before filing a claim, but not more than three years.
However, a positive decision can be made by the court only for this period of time, no more, and only if the court is presented with convincing evidence that the defendant actually did not pay money for child support.
Alimony for a student child after 18 years of age
Obliging the second parent to pay child support if the child is healthy and able to work is much more difficult. The position of the courts in this case is clear - the need for maintenance must be proven.
“If a child studies at a university or technical school, you can apply for alimony,” the lawyer clarifies. - But here it is important to comply with several conditions. Firstly, training must be face-to-face. If the child entered into a contract, payment will be denied. Secondly, it is necessary to confirm that while he is undergoing training, the young man cannot support himself, and the mother with whom he lives also does not have sufficient income for maintenance, which is why she applies for the collection of alimony from the father.”
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If the need for payment is proven, then alimony for a student after 18 years of age will be assigned in a fixed amount. And the parent will have to pay them until the child reaches 23 years of age or until the family’s financial situation changes.
