What to do if the writ of execution for alimony is lost

Procedure for obtaining a duplicate

In a situation where this paper is lost, a duplicate must be provided by the authority or official who issued the original of this act (Part 2 of Article 12 of Federal Law No. 229).

Note! If the original is lost, you must contact the court that issued it to provide a duplicate.

Application for issuance of a duplicate writ of execution for alimony

To restore the document, the recipient of alimony must submit a freely drawn up application, necessarily including the following information:

1. Names of the judicial authority to which the applicant applies.
2. Information about the recipient and payer of this child benefit, including last names, initials and addresses of residence.
3. Details of the court case and the decision made to assign appropriate alimony payments, which resulted in the issuance of a writ of execution.
4. Data on the division of the Federal Bailiff Service (hereinafter referred to as “FSSP”), which carries out further office work, the surnames and initials of the official (bailiff).
5. Under what circumstances was the writ of execution lost or damaged?
6. Request for a duplicate.

Next, the attached documentation is listed, the date, month and year of preparation of the application are indicated, as well as the personal signature of the applicant (with a transcript).

The applicant, along with the application, must provide appropriate documentary evidence of the fact of loss:

• a postal receipt, a receipt for the transfer of papers, a notification to the postal service that the executive documentation has been issued;
• a resolution of the service responsible for the implementation of court decisions on the need to open records, transfer of documentation based on the court decision to the employer of the alimony payer, a certificate from an employee of the Bailiff Service (hereinafter referred to as “SSP”) that the paper was lost.

Important! The lack of documentation confirming the loss of the document makes it impossible for the court to make a positive decision on issuing a duplicate.

Do not forget that to obtain a duplicate you must pay a mandatory state fee (clause 10, article 1 333.19 of the Tax Code of the Russian Federation). Each page of the document is paid in the amount of 4 rubles, but the payment amount cannot be less than 40 rubles.

A sample application for the issuance of a duplicate writ of execution can be downloaded here

Features of the procedure for considering an application and providing a duplicate

The court, in the prescribed manner, reviews the submitted documentation and sets a date and time for the hearing. All interested parties are notified of this, but the meeting will definitely take place, regardless of the appearance of the applicant or other participants in the case.

The result of the judicial review is a decision to issue a duplicate document to replace the lost one.

The resulting duplicate is provided to the SSP to resume payments. It is possible for the ex-spouse to agree to voluntarily transfer payments, with notarization of the corresponding agreement, but in this case you will have to rely on his good will. The transfer of enforcement documentation to bailiffs will allow, in the event of untimely transfer of funds, the debt to be returned forcibly, up to and including the seizure of property.

Rules of law

When the writ of execution is restored, a duplicate is issued after a trial has been held and the circumstances that caused the loss or damage to the paper have been established. The Federal Law “On Enforcement Proceedings” provides for the equivalence of the original and the duplicate issued to replace the lost original.

The process of obtaining a duplicate depends on the court in which the original was received:

• a magistrate's court or a court of general jurisdiction according to the regulations approved by Article 430 of the Code of Civil Procedure of the Russian Federation;
• arbitration court - within the framework of the provisions of Article 323 of the Arbitration Procedure Code of the Russian Federation.

In standard situations, when a decision is made by a magistrate’s court, it is also necessary to apply to the same authority. Extradition will require a trial. During which the reasons and circumstances of loss or damage to the original document will be established. All interested parties are invited to the meeting, however, their presence is optional, because a decision will be made even if any of the parties fail to appear.

If the court decision was made in the Arbitration Court, the basis for issuing a duplicate will also be the claimant’s application.

Loss of a writ of execution due to the fault of an official

It often happens that a writ of execution for alimony is lost due to improper performance of official duties by the official responsible for the safety of such documentation. The fine for such a violation is two and a half thousand rubles (Article 431 of the Code of Civil Procedure of the Russian Federation). This reason explains the refusal of these officials (bailiffs, accountants and other employees of enterprises and organizations) to provide certificates certifying that the enforcement documentation sent to them was lost.

If no action is taken as a result of an appeal to the SSP, it is necessary to contact a higher authority to take action. If there is documentary evidence that the specified court enforcement documentation was accepted by this service, the applicant must be provided with the original of the specified paper, or a written explanation for its absence.

It is necessary to take into account that any appeal to government agencies must be made in writing, with a note about incoming registration in the office. The response received will confirm the fact of loss of papers by the bailiff service official. In such a situation, the recipient of alimony will not have to pay state duty.

Circulation period

You can apply for an official copy of the document on the assignment of alimony payments throughout the entire period of validity of the writ of execution. That is, until the child reaches 18 years of age and for 3 years after reaching adulthood.

After receiving the original or secondary enforcement documentation, it should be sent to the bailiffs to open enforcement proceedings. Otherwise, minors will not be able to receive money. Penalties will be imposed on the alimony payer, and penalties and interest may be withheld.

If the loss occurred in the form of an official

More details about what to do if the writ of execution for alimony is lost by the official sheet at the enterprise. In such a situation, if the employer of the alimony obligated person refuses to provide a certificate of loss, it is necessary to contact the territorial SSP service with a request to make a corresponding official request to the enterprise.

But in most cases, only a copy of the documentation confirming the court decision is sent to the organizations that transfer alimony, and the original remains with the bailiff service, which monitors the execution of the court order. Therefore, if alimony is not transferred due to the lack of executive documentation, the corresponding branch of the SSP is the first instance where it is necessary to look for the specified papers.

It is also necessary to take into account that the legislation provides for serious penalties for organizations and their leaders who are guilty of delaying the transfer of alimony payments or who do not promptly inform the recipient of alimony about the payment of the former spouse from this place of work.

Consideration of the case

10 days after the request for a duplicate is accepted, a court date is set. Its participants are notified of the time and date of consideration of the case in advance. The plaintiff and the defendant, the bailiff who opened enforcement proceedings against the debtor, or the accountant responsible for calculating wages and withholding alimony payments from the payer must appear at the trial.

If any of the parties cannot be present in court on the appointed day, the judge should be notified of this no later than 3 days before the trial. Based on the results of the consideration of the case, the court makes one of the following decisions:

Related article: How to obtain a writ of execution after an appeal

1. satisfy the applicant's demands for an official copy of the court order;
2. refuse to create a duplicate.

In order for the application to be accepted for consideration, payment of a state fee will be required. Each sheet of an official document will cost the applicant 4 rubles, and the payment amount cannot be less than 40 rubles.

Resumption of alimony payments

The applicant may agree with the alimony payer to make payments and not issue a second document to renew them. But the agreement must be written. Also, the document should be notarized and submitted to the judge for approval so that neither party can change the terms of the agreement.

If an agreement cannot be reached, then you should pick up a copy of the executive documentation. After receiving the secondary writ of execution, you should present it to the following organizations:

1. FSSP branch;
2. to the accounting department at the place of work of the payer;
3. to the pension fund department;
4. other organizations responsible for withholding alimony in favor of minors.

After the presentation of duplicate enforcement documentation, the collection of alimony payments will be resumed.

Related article: Where to apply for a writ of execution after trial

Some results and step-by-step instructions

1. There is nothing irreparable about the loss of a writ of execution. Yes, you will have to take part in the procedure for its restoration. This will take some time. But the statute of limitations for cases of alimony collection makes it quite possible to wait. The main thing is that the child has a means of subsistence during the period of receiving the duplicate. After receiving a new document, the proceedings are resumed. There are no fundamental changes in the execution of the decision.
2. You can and should only apply for a duplicate to the authority that issued the original document, which has become lost. This is, in most cases, a trial. But, if an agreement on the payment of alimony was concluded, then the issue can only be resolved through a notary. Not through anyone, but through the one who certified the original agreement. At the moment, a notary does not have the authority to issue duplicates of documents not certified by him. Although there already exists a unified electronic database of notarial documents.
3. It is imperative to prove the fact of loss of the original papers. The most difficult thing is to prove that they were lost through no fault of the applicant. But this is extremely difficult to do. It is necessary to obtain the appropriate certificate. To do this, you should contact a qualified legal specialist. He will be able to prove that the claimant did not lose the sheet with his own hands, but that it was done by a bailiff or another official authorized to carry out collection.

As a rule, most creditors, in case of loss of important papers, have to contact the judicial authorities. If you have time, it is better to be present in the courtroom or send your representative there with a legal education who can justify all legally significant points.

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Where can I get a writ of execution?

To begin collection, you first need to obtain a writ of execution. And at this stage the main question arises: where to get this useful document?

Procedure for obtaining a writ of execution:

1. Draw up a claim and send it to court. It is assumed that the defendant is evading his duties at the time of filing the application.
2. Wait for the meeting.
3. Receive a court decision.
4. Based on the decision, obtain a writ of execution. To do this, you need to write a corresponding application (see sample below).