Alimony obligations: essence, grounds and characteristics

An alimony obligation is the foundation on which the legal relationship is built between the obligated person and the person who has the right to demand monetary payments from him. In other words, the absence of an alimony obligation leads to the fact that the alimony holder legally owes nothing to the alimony recipient.

The legal regulation of alimony obligations is enshrined in the Family Code, namely in Section 5. This document is a single codified act in Russia, which contains all the rules relating to alimony. Based on the text of the Family Code, one can identify several types of alimony obligations, classify them, and find out in what cases an obligation may arise or be terminated.

Definition and mechanism of occurrence of alimony obligations

Definition

The word “alimony” has ancient Roman origins, as evidenced by the translation of this word from Latin. There are 2 known translation options:

1. Content.
2. Nutrition.

In ancient Rome, the word “alimentum” was the gratuitous provision of monetary amounts from one family member to another family member as maintenance.

In the modern world, the meaning of this word has remained virtually unchanged. As in ancient times, the alimony obligation refers to the relationship between 2 family members or close relatives, one of whom undertakes to pay money or transfer property for the maintenance of the second party to the obligation, and the second party to the obligation has the right to demand the provision of this maintenance.

How do they arise?

The legal scheme of any alimony obligation includes 3 key features, without which its occurrence is impossible:

1. Kinship or family ties must not exist in words, but be certified by documents. In the Russian Federation, the responsibility to register civil status rests with the state civil registry office. Information about civil status is recorded in special register books, and citizens receive certificates. Let's give an example: the birth certificate of a minor certifies several facts: the baby's name with surname and patronymic, the date he was born, information about his parents. Thus, this certificate is written evidence of the relationship between a minor child and his parents.
2. Certain categories of alimony recipients have grounds unique to them that allow them to demand maintenance from the alimony provider. For example, in the case of child support obligations, this is a minor; in the case of alimony obligations of spouses, former spouses, parents, incapacity for work (disability or reaching retirement age) or neediness (income below the subsistence level; need for funds for treatment). In the case of a wife or ex-wife, pregnancy or raising a common child who is under 3 years old.
3. Documentation of alimony obligations within the framework of an agreement certified by a notary, or an act (order or decision) issued by the court.

Signs

Classification of alimony obligations

Obligation to support family members

Alimony obligations cannot arise just like that between two persons. The legislation defines the grounds that give the right to receive alimony:

• An alimony agreement between the parties is an agreement signed between the payer and the recipient of alimony, which contains all the conditions for the provision of material support (Article 99 of the RF IC).
  Important! A notarial agreement has the legal force of a writ of execution (Article 100 of the RF IC).
• A court decision, on the basis of which the payer is obliged to pay payments established by the court in favor of the recipient.
  Depending on the circumstances of the case, the court may decide to collect alimony, either in a fixed sum of money or as a percentage of the payer’s total income.
• The presence of family ties between the parties to alimony obligations at the present time or in the past.
• The presence of conditions specified in the RF IC or in a voluntary agreement that lead to the emergence of alimony obligations: disability, need, lack of income, etc.

Legal features of alimony collection

The law allows only 2 ways to formalize alimony legal relations between the alimony provider and the alimony recipient:

1. Alimony agreement.
2. Judgment or court order.

An agreement is a written document, the terms of which the parties to the obligation can negotiate themselves, without the participation of third parties. This fact provides greater freedom when discussing the following issues:

• How will child support be paid? Participants in the agreement can choose any period of time for payments: 1 month, 2 weeks, 1 year, 1 quarter, in a lump sum.
• How will child support be paid? In this case, the law also provides complete freedom. This could be a fixed amount, a transfer of property assets, a percentage of income, or the purchase of property necessary for the alimony recipient.
• How will the alimony holder be held responsible if he allows a child support debt to arise? The parties can agree on any types of liability independently, for example, on the amount of the penalty, on the transfer of pledged items into the ownership of the recipient of alimony in the event of late payments, on the amount of a one-time fine for late payment.
• How long is the agreement for? For example, the child was 7 years old at the time of the agreement between the parents. The parents decided that they would enter into an agreement for 5 years. Termination of the agreement in this case does not at all mean the termination of the child support obligation, since the child at this time will only be 12 years old, but not 18 years old. If the new agreement is not certified by a notary, then one of the parents can obtain payment of child support through the court.

As can be understood from what was written above, the lack of notarization means the automatic invalidity of the agreement. To certify the drawn up agreement, you can contact any notary. The main thing is that it is registered with the Ministry of Justice and the Chamber of Notaries. To draw up the text of the agreement, you need to contact lawyers specializing in family law, or use the samples below:

1. for a minor child.
2. to your spouse or ex-wife.

It is also worth noting some features that are unique to an alimony agreement:

• One party cannot refuse to fulfill the agreement without obtaining the consent of the other party.
• Termination or modification of the rules specified in the agreement can only occur with a notary. If the parties conflict with each other and cannot agree on an agreement, then the conflict is resolved by the court.
• Alimony agreement = writ of execution. This means that, firstly, if a child support debt arises, there is no need to go to court, and, secondly, it can immediately be presented to the bailiffs with a requirement to take all possible measures to obtain payments from the alimony provider.
• Minor children are protected by law, which sets a minimum limit for their provision. Parents in the agreement cannot set the amount of payments below this limit, namely, 25% of income for 1 minor; 33% of income for 2 minors; 50% of income for 3 minors.

Below we will describe the features inherent in the judicial collection of alimony.

For minor children

The payer of child support is the parent living separately from the child. His obligation to provide for the minor is unconditional and does not depend on the level of income, marital status, debt load, or the presence of obligations to other people.

Minor children are a special group of alimony recipients for whom alimony can be calculated in 2 different ways, described in the table below.

Also, it is necessary to take into account the following rule established in the Family Code: if for some reason the person who has the right to collect alimony did not file a corresponding claim in court, then it is possible to demand alimony only for the past 3 years from the date of filing the statement of claim . At the same time, the court must provide evidence that the plaintiff actually tried to obtain alimony from the defendant, for example, sent him a registered letter with a proposal to enter into an alimony agreement, or wrote by email demanding alimony, or received an order for alimony from the magistrate, but the defendant canceled it .

Further, keep in mind that as of August 2021, new rules regarding the amount of the penalty and the procedure for collecting it will apply. Firstly, the penalty has been reduced from 0.5% to 0.1 percent per day for the amount of debt. Secondly, the court received the right to reduce the penalty if it is excessively high (usually more than 50% of the debt amount).

Termination of alimony obligation, where the recipient of alimony is a minor, is possible on 3 grounds:

1. The child support worker or minor child has died.
2. The minor was adopted by another person, and the child support provider was deprived of his rights as a parent.
3. The minor has reached the age of 18, or entered into marriage before the age of 18, or was emancipated before the age of 18, i.e. acquired full legal capacity with the permission of parents and guardianship institutions due to registration of a business with the Federal Tax Service or obtaining an official job.

For a mother with a child under 3 years old

In this case, the alimony recipient is the wife or ex-wife, and the alimony payer is the husband or ex-husband. The purpose of providing alimony is to financially support a woman who is in a vulnerable position due to the fact that she is responsible for caring for a small child and cannot earn a living.

The features of the alimony obligation in this situation are that:

1. The husband or ex-husband must have sufficient funds, i.e. he needs to earn such an amount of money that after paying alimony he will have funds in the amount of 1 adult subsistence level.
2. Alimony can only be provided in a fixed amount, paid monthly.
3. The court is obliged to take into account the financial security of the alimony recipient and his marital status (the presence of other dependents who are financially dependent on the alimony payer) when calculating the amount due to the alimony recipient.
4. The obligation is unconditional, i.e. cannot be canceled until the child turns 3 years old.

For disabled spouses

The table below describes when a spouse is obligated to support another spouse and when a former spouse is obligated to support another ex-spouse.

For children over 18 years old

Parents have an unconditional obligation to provide financially for their adult children if:

1. An adult child has become disabled for any reason and has lost all or part of his or her ability to work. Accordingly, he lost the opportunity to provide for himself.
2. Along with his inability to work, he is recognized by the court as a person in need of help. The need may be not only the need for money to live, but also the need to care for an adult child, look after him or provide him with medical procedures.

As the Family Code states, child support for adult children can only be assigned in a fixed amount, which must be paid every month. In this case, the judge is obliged to take into account the financial situation of each party (what sources of income they have; the amount of earnings per month; what property they own) and marital status (the presence of dependents who are financially dependent on the alimony payer).

Alimony in family law

Modern jurisprudence forms the content as certain financial resources that are provided to separately living relatives of disabled status. The essence of the rule applies equally to the current and ex-family.

An analysis of the regulations and the code definitely leads to the conclusion that the issuance of funds on one's own initiative is also defined as security, on a par with a coercive act.

Payments vary in principle, but a common occurrence will be participation in the costs of providing for the heirs. The IC is filled with a large number of points, the purpose of which is to regulate this category of relations.

The norm under the Insurance Code is an oral agreement between relatives. But an effective action is to conclude a written agreement certified by a notary. Thus, the paper acquires the significance of a writ of execution. The duration of the periods for which it is possible to present claims does not exceed three years from the date the initiator applied to the court.

In 2021, issues of alimony under the RF IC will be regulated, as before, by articles 80-120. No changes have been announced to the Russian lawmaking institute.

Sample statement of claim for alimony collection

The statement of claim or application for a court order must indicate:

1. The name of the judicial authority to which the application will be submitted.
2. Information about the plaintiff and defendant, namely: their full name, residential addresses, telephone numbers (if known to the applicant), email addresses (at the request of the applicant).
3. Description of the circumstances of the claim and a description of the facts of violation by the defendant of the rights of the plaintiff.
4. Listing of evidence substantiating the applicant's claims.
5. Calculation of the amount of alimony to be paid monthly (optional item).
6. Links to articles of law with which the applicant substantiates his words.
7. List of claims.
8. List of applications submitted simultaneously with the application.
9. Applicant's signature.
10. Date of writing the application.

A sample application for a court order, which you can use to write your own application, is here. Keep in mind that court orders are issued only for child support for minor children, when it is collected as a share of earnings.

A sample statement of claim, in which the plaintiff demands alimony for a minor, can be downloaded from here, an application for alimony for a spouse - here, for an ex-wife - here, for alimony for a parent - here.

Characteristic signs

The relationship between the parties, one of which has the right to receive financial assistance, and the other is obliged to provide it in accordance with the law, has a number of characteristic features:

1. Alimony obligations arise between two persons; the death of one of them is grounds for termination of such relationships.
2. The provision of financial assistance by the payer is carried out free of charge, although it is reciprocal in nature.
3. Maintenance obligations are assigned to the payer for a long period.
4. The grounds for the occurrence of alimony obligations are determined by the RF IC.

Time limit for consideration of the application and adoption of a court decision

For cases dealt with by writ, the following deadlines are established:

1. 5 days from the date of filing the application for the judge to make a decision on whether the documents and information submitted by the applicant are sufficient to issue a court order or not.
2. As a rule, within 1 week from the date of issuance of the order, the judge sends a copy of it to the defendant. The defendant has 10 days from the date of receipt of the letter with the order to file an objection to it.
3. If the defendant misses the deadline for filing objections, the order takes effect.

For cases dealt with through claims proceedings, the following deadlines are established:

1. The total review period is 1 month. It is counted from the day the application is filed until the day the decision is announced at the court hearing.
2. The decision on whether to accept the claim into its own proceedings is decided by the judge within a maximum of 5 days, counting from the date of filing the documents.
3. The time to appeal the decision is 1 month, counted from the day the court decision is made in its final form.

Payment procedure

The regulator provides two options for assigning alimony legal relations.

Voluntary

A popular procedure has become the settlement of relationships by subjects independently through communication, by reaching agreements. This type has received the appropriate legal potential and is fully called an agreement in the legal sense of the term. To be able to use this type, the following rules must be observed:

• relatives authorized by regulations have the right to conclude;
• the inability of one party to complete the execution of the document allows the involvement of a representative;
• regulations on the subject of negotiations are determined by the parties;
• Unfair performance of duties is not allowed;
• the agreement reached cannot worsen the position of the beneficiary; obvious signs of infringement make the document illegitimate;
• a written document must be notarized.

Forced

Disputes related to security, according to statistics, lead among all matrimonial and family cases. 1/10 of all civil cases are devoted to the proceedings of these duties. In what cases is forced collection initiated:

1. In case of refusal to conclude agreements, their termination for any reason or recognition of the drawn up document as invalid.
2. If the alimony provider fails to comply.
3. In case of violation of someone's interests.

The decision to pay alimony can be made by the court

List of documents for filing a claim for alimony collection

Arbitrage practice

First example

The case was heard at court site No. 26 of the Sretensky district of the Chita region in March 2012.

The demand for the recovery of alimony from the defendant in his favor until the child turns 3 years old, and for a small child until he reaches 18 years old, was filed by the ex-wife. She motivated her demand for maintenance by the fact that the child is less than 3 years old, and therefore she has no income, since she is on maternity leave and caring for him.

In addition, the plaintiff reported at the court hearing that she does not live with the defendant in the same territory and supports the child on her own. At the meeting, the ex-wife was forced to partially renounce her demands, namely, to refuse to collect alimony benefits for herself, because the ex-husband did not have a job. In this regard, he could not have a sufficient level of income to allow him to support his ex-wife.

For his part, the defendant said that he agreed to pay child support. Since the defendant accepted this demand of the second party, the court did not continue the proceedings. The court ordered the ex-husband to provide financially for his minor child and to allocate 1/4 of his earnings to provide for him.

Second example

The case was heard at court site No. 312 of the Ostankino judicial district of Moscow in April 2014.

The claim was filed by a former spouse who became disabled during the marriage. As she indicated in the application, she is not in a new marriage, is a disabled person of group 2 and needs financial support, because her pension is 14,000 rubles, and expenses for utilities, food, medicine and clothing are approximately 23,000 rubles. monthly. In addition, she is obliged to financially help her elderly parents. For this reason, she needs alimony in the amount of 10,410 rubles. monthly, as well as alimony for the past period, starting from February 2012.

In court, the plaintiff said that her ex-husband knew that she had a serious illness even before the marriage and promised to help, but after the divorce he stopped doing so. The defendant stated that he helped the plaintiff’s family during the marriage, and the ex-wife’s pension is above the subsistence level, so she cannot be considered needy.

In addition, the ex-wife has a son who is over 18 years old, which means he must help his mother. The defendant, in turn, has obligations to his pregnant wife and son, whom he must provide for. Also, the defendant has obligations to banks and does not have any valuable property (personal apartment, jewelry or car).

The court determined that the plaintiff cannot demand alimony payments from the defendant for the past period, because she cannot prove that she previously tried to obtain alimony from her ex-husband. In this case, the court is obliged to take into account the fact that the ex-husband is obliged to support a new family (a pregnant wife and a young son), as well as the fact that the plaintiff has an adult child who does not want to help her. Therefore, the court decided that the defendant would pay only 2,500 rubles. every month in favor of the plaintiff.

Maintenance of minor children after divorce

Parents have an obligation to support their minor children (Article 80 of the RF IC). In other words, the father and mother must provide their child with everything necessary for a normal life and development. The parent leaving the family is obliged to provide financial support in the form of alimony.

The grounds for the emergence of child support obligations between parents and children are:

1. the presence of a family connection confirmed by documents;
2. the child has not reached 18 years of age (with the exception of Article 85 of the RF IC);
3. a decision made by a court or an agreement signed between parents.

More information about up to what age child support is paid can be found here.

The obligation to support children arises regardless of the parents’ ability to work, legal capacity and availability of funds. The responsibility for maintaining children falls on the father and mother, whether officially married or not.

People interested in alimony will be interested in articles about registration, arrears in these payments, as well as about evasion of payment.