Alimony from travel allowances and daily allowances – is it withheld or not?

Author of the article: Anastasia Ivanova Last modified: January 2021 5498

The law requires financial support for minor children. In the event of divorce, one of the parents is obligated to pay child support. According to the Family Code, collection of funds under a writ of execution occurs from all official sources of income. Consider in more detail whether it is possible to withhold alimony from travel money.

What serves as the basis for collecting alimony from a military personnel

Alimony is collected based on an agreement or court decision. A child support agreement is the result of an agreement between a service member and the parent who has custody of the minor. The document indicates how much child support one of the parents will pay and with what frequency.

By agreement of the parties, the document can be changed or terminated, but not unilaterally. If one of the former spouses loses his job or goes bankrupt (that is, his financial situation worsens significantly), he has the right through the court to change or terminate the alimony agreement.

There are situations when a military serviceman does not provide money for the maintenance of children or transfers insufficient amounts of alimony. In this case, you can contact the bailiffs or authorize legal proceedings. After a court decision is made to collect alimony from a serviceman, the writ of execution is transferred to the military unit.

What are travel allowances?

When going on a business trip, an employee has the right to count on payment of a certain amount of money for each day of stay at the place of business trip. The procedure for calculating wages in the specified conditions is regulated by the Labor Code of the Russian Federation and Government Resolution No. 749 of 2008, issued in pursuance of the norms of the code. You need to pay attention to the following provisions of these acts:

1. The employer reimburses the employee for his expenses based on the documents presented by the latter (Article 168 of the Labor Code of the Russian Federation). That is, if an employee spent money on: travel, food, accommodation - all these expenses will be compensated.
2. It may turn out that an employee of the organization will be away from his main place of work on weekends and holidays, then he will retain not only his average earnings. Daily allowances will be accrued in excess of the plan in double amount, but naturally, only for those days when the employee was not supposed to work (Article 153 of the Labor Code of the Russian Federation). But we are not talking about excess daily allowances, which the employer accrues on its own initiative in order to stimulate or thank the employee for good work, and not as required by law.

Thus, we can say that travel allowances - daily allowances - consist of two parts:

1. employee remuneration;
2. money that is paid to compensate an employee for travel expenses.

Additional bonuses and rewards can also be classified as wages.

To understand whether alimony is withheld from daily allowances, you need to figure out whether it is possible to withhold some funds for the needs of dependents from each part of travel payments.

How are alimony payments calculated from military personnel?

Military personnel are required by contract to pay monthly child support after a divorce. If alimony is collected through the court, then the accounting department transfers a certain amount to the children every month on the basis of a writ of execution from the allowance. If a serviceman has one child, then ¼ of the income is deducted for alimony, if there are two children - ⅓, if the number of children is 3 or more - ½ of the monthly allowance.

Alimony is calculated from the military personnel's salary under the contract after deduction of taxes. The accounting department must transfer alimony no later than 3 days after payment of the allowance. If an agreement on the payment of alimony is signed with a former spouse, a contract serviceman can independently deduct the agreed amount, but not less than that established by law.

If the child is not yet 3 years old, then the spouse can also claim maintenance. This is possible because it is not always possible to place a child in a kindergarten, and the parent most often cannot work full-time. However, there is a preferential procedure for enrolling in kindergarten for children of military personnel.

How is the maximum deduction from wages (average income) determined for calculating alimony?

Child support - what percentage of salary? If the legal basis for paying alimony is an agreement between the payer and the recipient, then the maximum deduction of alimony from wages, as in the case of voluntary payment, is not limited by anything (Clause 1 of Article 103 of the RF IC, Article 110 of the RF IC). Moreover, if the agreement is drawn up for alimony for a minor child, then the amount specified in it should not be less than that determined when alimony is assigned by the court (Clause 2 of Article 103 of the RF IC).

If alimony is prescribed by the court, then its maximum amount will be (clause 3 of article 99 of law 229-FZ, article 138 of the Labor Code of the Russian Federation):

1. When paying in favor of minor children - 70% of the employee’s salary.

In general, alimony for 1 child is 1/4 of the employee’s salary, for two - 1/3, for three or more - 1/2 (Clause 1 of Article 81 of the RF IC). However, these shares may be increased or decreased by the court, taking into account the considered circumstances characterizing the relations of the parties.

2. In other cases - 50%.

In cases provided for by law, alimony is awarded by the court in a fixed amount. If the payer’s income for the billing month is not enough to cover the corresponding amount, then the balance is collected from subsequent income.

In this case, alimony is collected only after personal income tax has been calculated and withheld from the income. If the tax is not withheld, for example, in the case of a property deduction, then alimony is calculated from the entire salary amount (clause 1 of article 210 of the Tax Code of the Russian Federation, clause 1 of article 99 of law 229-FZ).

The commission for the transfer of funds to the alimony recipient is paid at the expense of the debtor (Clause 3, Article 98 of Law 229-FZ). However, it is taken into account when calculating the maximum withholding amount.

That is, the formula for calculating alimony as a percentage of salary is as follows:

Al = (D × personal income tax) × Pr, where

D - the sum of all income, including incentive payments and payments calculated on average earnings, such as vacation pay or travel pay;

Pr – amount of interest to be withheld.

Next, you should compare the amount of alimony with the employee’s income to see if it exceeds the limits approved by law (50–70% of the employee’s income).

A separate scenario is establishing the amount of alimony based on the average salary in the state. Let's study it.

What documents need to be prepared to collect alimony from a military personnel

If the spouses have entered into an agreement on alimony, then this document will be fundamental. When collecting alimony through the court, you need to prepare a claim in which you indicate all the circumstances. To do everything correctly at once, it is better to consult a competent specialist. Documents that will be needed for the court:

• statement of claim;
• divorce certificate;
• children's birth certificates;
• adoption document (if available);
• an extract from the house register about the place of residence of the children;
• plaintiff's passport.

What income of military personnel is taken into account when calculating alimony?

Contract servicemen do not receive wages, but a monthly allowance. Decree of the Government of the Russian Federation dated July 18, 1996 No. 841 “On the List of types of wages and other income from which alimony for minor children is withheld” also establishes the income of military personnel.

To calculate alimony, the components of a military serviceman's salary under a contract are taken into account:

• salary according to position;
• salary according to military rank;
• monthly and other regular allowances or additional payments;
• benefits for the reduction or liquidation of a military unit;
• payment of travel expenses;
• sick leave;
• vacation pay.

Child support: general rules for collection and retention

Let's figure out what the essence of child support for minor children is and how a parent can fulfill his child support obligations. Let's consider how the mother of a child can apply for alimony if the child's father does not participate in his maintenance, and what amount of alimony she can expect in this case.

What is alimony?

The maintenance of minor children is the responsibility of parents, enshrined in the Code on Marriage and Family (hereinafter referred to as the Code).

As a rule, alimony is understood as a periodic monetary payment from one parent of a minor child in favor of the other parent who is supporting this child (usually the child’s mother). It does not matter whether the parents are married or not, live together or separately.

Child support can be paid by the parent voluntarily (that is, by agreement of the parties), or it can be collected in court .

Voluntary payment of alimony

The child's father can pay child support himself (for example, by handing over money personally, by postal order, or by transferring to a bank account).

An option is possible when a parent applies to his place of work with a written application for monthly deduction of alimony from his income <*>. This application indicates the details of the child for whom alimony is being withheld, its amount, the details of the child’s mother and the method of paying her alimony.

Attention! Voluntary payment of alimony by the father does not exclude the right of the child’s mother to apply to the court at any time to collect alimony <*>.

Collection of alimony in court

Alimony can be collected through writ proceedings (simplified version) or claim proceedings <*>.

Having the executive document in hand, you can <*>:

- transfer this document to the enforcement agency to the bailiff with an application to initiate enforcement proceedings. He, in turn, sends this document to the place where the child’s father receives his salary or other income. At the same time, the bailiff attaches to the writ of execution an order to foreclose on wages and income equivalent to it;

- independently send a writ of execution to the known place where the alimony parent receives wages and other income with an application for withholding and transferring alimony.

Note Involvement of bailiffs in the process of collecting alimony makes it possible to ensure the legitimate interests of the child’s mother at a higher level (bailiffs systematically monitor the correctness and timeliness of withholding alimony from wages and equivalent income, as well as the transfer of withheld amounts).

Amount of alimony in Belarus

The monthly amount of alimony is indicated in the documents on the basis of which alimony is withheld. That is, every month the mother of the child must receive alimony in the amount established in the writ of execution or application.

Typically, alimony is withheld as a percentage of income. The percentage depends on the number of children for whom alimony is being collected: for one child - 25%, for two children - 33%, for three or more children - 50% of income.

At the same time, regardless of the level of actual income, the law establishes a minimum amount of alimony per month for able-bodied parents. This is the guaranteed amount that the mother should receive per month to support the child. The minimum amount of alimony is set as a percentage of the average subsistence budget per capita (hereinafter referred to as BPM) <*>.

There are special circumstances when, by a court decision, the amount of alimony can be reduced (for example, if the child’s father has other minor children who, if alimony was collected in the amount established by law, would be less financially secure than the child for whom alimony is being collected). Also, the court may completely exempt a parent who is a disabled person of group I or II from paying alimony or reduce the minimum amount of alimony for an able-bodied parent <*>.

Note If the child's father has an irregular income or receives part of it in kind, then alimony can be collected in a fixed amount or in an amount corresponding to a certain number of basic units .

The maximum amount of alimony is not limited. At the same time, there is a maximum amount of deductions from the income of the alimony worker. In general, when paying alimony for minor children, the maximum amount of deductions should not exceed 70% of the salary and income equivalent to it <*>.

At the same time, the bailiff, at the request of the parent paying alimony or on his own initiative, has the right to establish a more flexible maximum amount of deductions, indicating it in the order <*>.

From what income is alimony withheld?

Alimony for the maintenance of minor children is withheld from almost all types of earnings and other income of the parent-alimony provider <*>.

Along with this, alimony is not withheld , for example, from <*>:

- travel allowances;

- funeral benefits;

— compensation for the use of the employee’s personal property for the needs of the employer;

— severance pay (except for benefits exceeding average monthly earnings).

Attention! Deductions from benefits for temporary disability, pregnancy and childbirth, and child care under 3 years of age are made only upon a court order to collect alimony <*>.

How is alimony calculated?

In general, the amount of alimony is calculated using the following formula:

Example

The executive document provides for monthly withholding by the employer of alimony for one child in the amount of 25% of the employee’s income. The salary of the alimony worker after withholding income tax and contributions to the Social Security Fund amounted to 650 rubles. Let's calculate the withheld amount of alimony for the month: 650 x 25 / 100 = 162.5 rubles. (the condition for the minimum amount of alimony per child is met: 162.5 rubles > 129.06 rubles (50% BPM)).

It happens that the alimony father’s earnings are small (for example, when he works part-time or was on vacation at his own expense). In conditions of low earnings, a situation may arise when the minimum amount of alimony exceeds the maximum amount of deductions. This leads to the formation of alimony arrears The employer of the alimony provider must take into account this debt and control its repayment <*>.

Example

In accordance with the executive document, the employer, within 70% of the employee’s earnings, should withhold alimony for three minor children in the amount of 50% of the income. The alimony worker works part-time, and his monthly salary after withholding income tax and contributions to the Social Security Fund amounted to 300 rubles. Let's calculate the amount of alimony: 300 x 50 / 100 = 150 rubles. Let’s say the minimum amount of alimony for three children is 258.11 rubles. (100% BPM). Alimony calculated from the income of the alimony provider is less than this amount, therefore alimony is due to the mother of the children in the amount of 258.11 rubles. However, the low level of earnings does not allow such an amount to be withheld, since the permissible amount of deductions from the child support father (70% of earnings) is 210 rubles. (300 x 70 / 100). This means that 210 rubles are withheld from him, and the difference between the minimum amount of alimony and the permissible amount of deductions is 48.11 rubles. (258.11 - 210) is the debt of the alimony father to the children’s mother and is subject to withholding the next time income is paid to him (if income allows, and if it does not allow, then the debt will accumulate for the alimony holder).

How is alimony paid?

Alimony is withheld and paid by the employer of the alimony father.

Alimony can be paid to the child's mother by issuing it from the organization's cash desk, transferring it to her account, or transferring it by mail. Also, alimony can be transferred to the account of the enforcement agency.

The transfer of alimony must be made no later than three days from the date of any payment of income to the alimony provider. That is, if in the current month the employee first received an advance payment, then vacation pay, and then a salary, then alimony must be transferred to the child’s mother three times <*>.

Note The costs of transferring alimony to the child's mother are paid at the expense of the child's father <*>.

How is child support arrears calculated for an unemployed parent?

If the child support father is unemployed and has not paid the awarded child support, then he will have a child support debt. This debt is calculated by the bailiff for each month of non-payment, based on the following amounts <*>:

— for one child — 50% BPM;

— for two children — 100% BPM;

- for three or more children - 150% BPM.

Note Until July 1, 2020, arrears of child support for a non-working parent (in the absence of information about earnings at the last place of work or if more than 3 months have passed since dismissal) were determined based on the average wage of employees in the country (hereinafter referred to as the AWP). Since the calculation method has changed, it turns out that previously the monthly alimony arrears were charged to the non-working alimony-paying parent in a much larger amount. For example, if in June 2021 for one child it was determined in the amount of 312.23 rubles. (1248.9 (SWP for June 2021) x 25 / 100), then in July 2021 this debt is equal to only 123.39 rubles. (246.78 (BPM in July 2021) x 50 / 100).

Responsibility for non-payment of alimony

For evading payment of alimony for more than 3 months during a year, Art. 174 of the Criminal Code provides for punishment in the form of community or correctional labor for up to 2 years, arrest or restriction of freedom for up to 3 years, or imprisonment for up to 1 year.

Requests to bring the debtor to criminal liability can be sent to the internal affairs bodies either by the bailiff or by the mother of the child independently by submitting an appropriate application.

In addition, restrictions may be applied to non-payers of alimony (for example, temporary restrictions on traveling abroad or driving vehicles).

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