How to apply for alimony while married (without divorce)

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From the point of view of legislation, a child must be provided for by his parents, regardless of the fact in what relationship they are in with each other: married, outside of marriage or in a civil marriage. And if when a child appears in a marriage, the procedure for obtaining alimony does not cause any special problems, then when a child appears without registration of marriage, certain difficulties may arise.

Is it possible to apply for alimony without a divorce?

Question:

“We have a six-month-old child, so naturally I don’t work. The husband works, he has a normal salary, but “for the family” he brings mere pennies - only enough for groceries. The rest is put into his own deposit account. The child benefit is barely enough for my child to eat (he is artificial). For every pack of diapers, clothes, toys, you have to beg, and they don’t always give. I’m already silent about my needs. I’m not dying of hunger, of course, but I can’t buy myself literally anything, not even small things.

The husband is against divorce. I also don’t want to get a divorce yet, especially since they say it’s difficult and time-consuming with a small child, and if my husband doesn’t agree. Are there any ways to force my husband to give more money to me and the child? Is there alimony when living together?

Answer:

Yes, and not only for the maintenance of the child, but for the maintenance of the mother who is on leave to care for him. Article No. 89 of the RF IC regulates the financial responsibilities of both parents in relation to minor children.

The parent who has direct responsibilities for caring for the child can demand from the other the necessary funds for this in court. The presence or absence of a marital relationship between the child’s parents does not matter.

You can prepare a statement of claim in court to collect alimony from your husband. The court will satisfy your request, despite the fact that you and your husband are married and run a joint household. Moreover, you can also claim child support because you cannot support yourself while on maternity leave (until the child turns 3 or you go back to work).

How to legally avoid child support out of wedlock

A common-law marriage helps to avoid alimony payments for the maintenance of a common-law wife, but not for a child. The only option to legally avoid payments is to challenge paternity. But it will only work if the potential payer is really sure that the child is not his. This point must be documented and the most serious evidence is DNA testing. To undergo it, you need the blood of a potential father (or “not the father”), as well as the child. In the latter case, the permission of his mother is additionally required. If she gives it, then the only problem is waiting for the test results. And if she does not give permission, then one can argue that this is indirect evidence that this man is not the real father, but the woman, knowing this, refuses to recognize this fact.

Who is eligible to claim spousal support?

According to the Family Code, spouses have certain financial responsibilities to their children and each other. According to the previously mentioned article No. 89 of the RF IC, the following have the right to receive alimony without divorce:

• Common minor child
• Group I disabled child before and after adulthood
• Wife during pregnancy and caring for a child under 3, as well as when caring for a disabled child
• Husband, if he is caring for a child under 3 years of age or a disabled child
• Disabled husband or wife

ATTENTION! It is absolutely not necessary to file a divorce in order to receive alimony. The presence or absence of a marital relationship will not in any way affect the amount of alimony that is collected from the father or mother for the maintenance of children or each other.

Possibility of receiving alimony payments for an illegitimate child

In accordance with Art. 80 of family legislation, every child has the right to child support and upbringing. In this case, the fact of the presence or absence of a registered marriage will not be taken into account by the court.

To obtain child support for a child born out of wedlock, the mother will have to document paternity. If there are no official papers, then a DNA examination will be required. In accordance with Art. 47 of family law, in the absence of official registration of marriage, the acquisition of the rights and obligations of a parent is carried out after establishing the fact of relationship between the child and the intended parent.

A man can voluntarily acknowledge his relationship with a child. Then, to officially register paternity, parents only need to contact the registry office. After submitting the appropriate application, information about the father of an illegitimate child is entered in the Civil Registry Book and in the child’s birth certificate.

If a man refuses to acknowledge paternity, the mother should file a claim with the court. During the trial, the fact of relationship or its absence will be established.

How to collect alimony while married?

There are two legal ways to pay alimony, regardless of the presence or absence of a marital relationship between a man and a woman:

• Alimony agreement
• Judgment or order for collection

A voluntary agreement on the payment of alimony must be drawn up by the spouses and certified by a notary. In this case, it acquires the force of a writ of execution and becomes a full-fledged replacement for a writ of execution, according to which the FSSP can collect alimony from the debtor.

Alimony agreements are often concluded by divorcing spouses. But when collecting “marriage” alimony, they are almost never used. After all, if a husband and wife can agree on the procedure for incurring material expenses for children and each other, they have no need to enter into such an agreement. And if disagreements in this area within the family cannot be overcome, then the only way to resolve it is through litigation.

The trial, of course, is much more troublesome and emotionally unpleasant. After all, no matter how you look at it, it is also “washing dirty linen in public,” and this is always traumatic.

But it happens that an irresponsible spouse and parent simply leaves their partner no other choice; the survival of the child or himself is at stake.

Some consolation may perhaps come from the fact that court fees are not collected from the plaintiff when considering such cases. The alimony payer will pay it.

When alimony obligations in a civil marriage terminate

Based on Art. 120 of the RF IC, the basis for termination of alimony payments may be:

1. Acquisition by a child of full legal capacity - if it occurs before adulthood.
2. Reaching 18 years of age.
3. Death of alimony obligee or child.
4. Adoption of a boy or girl by another person.

If an agreement on the payment of alimony was signed between the child’s parents, who are in a civil marriage, then it may contain other grounds for which payments are terminated. The main thing is that they do not contradict the norms of current legislation and do not infringe on the interests and rights of children born in an unregistered marriage.

If the recipient of alimony believes that the payments were stopped unreasonably, he can apply to the court to resume them.

How and where to apply for alimony without divorce?

The reason for the fact that the procedure for collecting alimony in marriage is considered rare and complex is due to ordinary legal illiteracy, which, unfortunately, is typical for Russia, which is just emerging as a legal society. In fact, “marital” child support is no different from those issued after a divorce.

The exact same statement of claim and accompanying documents are required. The procedure for judicial review and execution of a decision is not just similar, but even simpler. Child support during a marriage is collected faster than at the same time as a divorce.

The application is submitted to the magistrate's court at the place of residence of the family. We will tell you what documents you will need below.

Lawyer's answers to private questions

Several years ago I lived with a man and had a son with him. Now he is 5 years old. Paternity has not been established, but I want to look into this so that I can later demand child support. Can I order a DNA test myself and then present the conclusion in court?

You can, it is not prohibited by law. But the court may not take the conclusion into account. It is important that the examination is carried out within the framework of the trial, and not before it, and is ordered by a court order. It is best to file your petition during or after filing your application.

My ex-girlfriend established paternity and demanded child support from me in court. The court also ordered me to reimburse the costs of paying for the DNA examination. Am I obligated to do this?

If you filed a petition to appoint an examination, then you are obligated (Article 96 of the Code of Civil Procedure of the Russian Federation). If she doesn't.

For several months I have been trying to get my ex to acknowledge paternity; I have a daughter from him. He just gets on my nerves and refuses. Can I demand compensation for moral damage from him in court if I decide to go there?

No. Compensation for moral damage is possible if a person, by his actions, violated your personal non-property rights, thereby causing physical or moral suffering (Article 151 of the Civil Code of the Russian Federation). By establishing paternity, women legally act in the interests of the children, and they have nothing to do with moral harm.

The husband had a child out of wedlock from another woman. We decided not to get a divorce, but I wonder if she will be able to collect alimony from him? If he decides to collect, how can they be reduced?

If paternity is established, the woman will be able to collect child support. For one person, 25% of earnings will be paid, but the amount can be reduced if you also file for spousal support. Then 16.5% will be transferred to the other child.

I rent an apartment and am raising twin boys. There is a dash in the “Father” column, but I am going to establish paternity through the court. I rent an apartment, it’s very difficult financially. Can I collect alimony taking into account the cost of renting a home? After all, his children live there too.

Yes, this possibility is provided for in Art. 86 RF IC. You must submit a rental agreement and payment receipts to the court. The defendant will be required to compensate half of the costs for two children.

Claim or writ proceedings?

The requirement of one parent to another regarding participation in providing for the child is classified as indisputable and does not require proof of necessity. Therefore, it can be considered by the courts in a simplified order. In this case, what is required is not a lawsuit, but an application to collect alimony from the father or mother. You can find a similar application form on the Internet and write a similar one with your data.

Order proceedings are preferable for all parties - it allows the case to be resolved quickly and does not require the mandatory participation of the participants in the process. Since in the case of “marriage” alimony the alimony payer does not have to search for or prove paternity, almost all such cases are resolved by order. The court issues an order, it is sent to the place of work of the alimony payer, after which the accounting department begins to transfer the required amounts to the second spouse.

Claim proceedings are used only in complex, complicated disputed cases, for example, when a spouse files a counterclaim, challenging his paternity, or presents evidence according to which the amount of alimony should be reduced (illness, difficult financial situation, disabled parents whom he supports, etc.) .d.).

How to become a parent through court

If the parent himself wishes to confirm the fact of his paternity, then he must file a claim in court. The application will need to be accompanied by:

• identification document (passport),
• child's birth certificate,
• evidence of the relationship between him and the child (ideally this is a 99.9 percent positive DNA test result, as well as documentary sources, joint photographs and witness statements),
• a document confirming the death of the child’s mother, a court decision declaring her incompetent or deprived of parental rights, etc. (if paternity is established for one of these reasons).

Facts where the biological father of a child denies in every possible way his relationship with him are much more common. And the reason for this is often that most men in this way try to avoid alimony obligations to their children. In such cases, the burden of proving the relationship of her child and his actual father falls on the shoulders of the mother; this is done by filing a statement of claim to establish the fact of paternity.

She will also need to present to the court:

• your passport,
• child metrics,
• details of the child's alleged father,
• evidence that can confirm the fact of paternity: all kinds of documents or testimony indicating their cohabitation both immediately before the birth of the baby and after that; photographs from the family archive showing father, mother and child; but the greatest evidentiary force will have a positive answer from genetic experts about the alleged relationship.

When considering cases of this category, the judge calls the plaintiff, defendant, and witnesses to participate in the hearing. Sometimes the child himself is invited if he has already reached the age of 10 and is able to express his own opinion on this issue.

If, by the time the application is filed in court, a genetic examination has not been carried out (for example, the putative father refuses to provide the biological samples necessary for its conduct), then the judge has the right to order it forcibly and continue the proceedings in the case after receiving the results.

The responsibility for paying for the DNA examination falls on the shoulders of the plaintiff. If the result turns out to be positive, that is, the biological samples taken from the father and child match on most points, the defendant will be obliged to reimburse the plaintiff for the money spent for the investigation.

If, after studying all the arguments of the parties and the evidence they presented, the court considers them sufficient and undeniable, then the decision will be positive - the judge will issue a decree recognizing paternity.

Where to submit documents?

As stated earlier, alimony cases are considered by magistrates' courts in all cases where there is no serious disagreement about the legality of alimony claims or the need to determine the whereabouts of the alimony payer.

ATTENTION! According to the rules, the application is submitted at the place of residence of the alimony payer. In a marriage, most often the entire family is registered at one address. But even if this is not the case, you can also submit an application to the territorial magistrate court at your place of residence - this is allowed.

So, the document must contain the following information:

• Name of the specific magistrate's court to which the application is being filed
• Full name, place of residence, contact details of the applicant and respondent
• Information about the marriage (when and how the registry office is registered)
• Information about children for whom child support is being collected (full name, date of birth)
• Information about the place of work of the parent from whom child support is being collected
• A concise and clear description of the circumstances: the fact of living together or separately, the absence or insufficiency of material support, the inability to independently provide for children.
• Demand to collect alimony. Its essence should be stated clearly and specifically, for example: “I ask you to collect from (full name) alimony for the maintenance of (full name) in the amount of a percentage of earnings (the percentage depends on the number of children) until the child (children) reaches adulthood.”
• List of attached documents (more about them below)
• Personal signature of the applicants and date of filing the application or claim

ATTENTION! The full package of documents is submitted in two copies (one of them the court will send to the defendant for review). If demands for child support and a needy second parent are submitted at the same time, there must be two applications - a separate one for the children, and a separate one for oneself.

What documents are needed?

The documents required for the court can be divided into two categories:

1. Confirming the legal grounds for receiving alimony:

• Birth certificates of children indicating the names of parents
• Marriage certificate
• A certificate from the housing office confirming that the applicant lives with the child (this is a necessary condition for receiving alimony)

1. Demonstrating the income level of family members:

• Documents about the applicant's income: salary certificate from the place of work, sick leave for pregnancy, document confirming being on leave to care for a child up to 3 years old, document on pension or receipt of social disability benefits
• Documents on the defendant’s income: salary certificate from the place of work, documents on additional income (lease agreement for real estate owned by the defendant, deposit agreements, tax returns, etc.)

The applicant’s task is to document to the court that the second parent does not provide for the child’s needs, despite the fact that he has such an opportunity. And also your need for additional funds to provide for your children.

If we are talking about a fixed amount, it can be justified by attaching a set of receipts and checks confirming monthly expenses for the child: purchase of clothes, shoes, medicines, baby care products, food, payment for clubs, sections, additional education.

Professional lawyers recommend approaching the issue of preparing the second category of documents with particular seriousness. Each “piece of paper” works for you and can affect the final amount of alimony collected.

How much can you collect alimony while married?

Alimony is calculated in two ways:

• As a percentage of salary
• As a fixed amount

When calculating alimony in a marriage, any of the methods can be used, depending on which method is more in the interests of the child or the disabled, needy spouse.

The interest rate of child support is regulated by Article No. 81 of the RF IC:

• A quarter of an adult's income per child (25%)
• A third of an adult’s income goes to two children (33%)
• Half of an adult's income for three or more children (50%)

This type of calculation is used when the alimony payer is officially employed, receives a “white” salary, and does not give reason to suspect that, in addition to the official one, he has a hidden source of income.

The calculation of a fixed alimony amount is regulated by Article No. 83 of the RF IC. It is used if the parent does not have a permanent income, or the income is difficult to routinely calculate (for example, the salary is paid in foreign currency or in natural products). The amount is set by the court, based on the minimum wage and minimum wage, and is calculated based on the financial capabilities of the parents and the needs of the child.

For a disabled spouse in need, alimony is established exclusively in the form of a fixed amount.

Legal status of a child born out of wedlock

In accordance with Russian legislation, a child born out of wedlock has exactly the same rights as children born in an officially registered relationship. In Art. 53 of the Family Code of the Russian Federation (hereinafter referred to as the RF IC) it is noted that children out of wedlock have the same rights and responsibilities in relation to their parents as children born to citizens who are not married to each other.

So if a child was born in an official marriage, then his mother’s husband is automatically his father.
In a situation where the marriage relationship has not been formalized, a man can be recognized as a father - only with his consent. If a man does not recognize himself as the father, then paternity can be recognized by a court decision. In this case, the child's mother must file an application to establish paternity .
In this case, the woman will have to prove in every possible way that this particular man is the father of the baby. Evidence in this situation will be testimony of witnesses, joint photographs, purchases, etc. If the evidence presented to the court is not enough, then a DNA examination .

Judgment (court order)

As mentioned above, writ proceedings are the easiest way of legal proceedings. The time interval between filing an application and making a decision on collection is only 5 days.

Plus, the court does not summon the applicant and the defendant to the hearing, but considers the submitted documents independently. By the way, this is another reason to take the most responsible approach to collecting documents justifying the amount of payments. The documents will “speak” for you.

If the court finds the claims to be justified, it makes a decision, determines the amount or percentage of the income, and notifies both parties of its verdict.

The main nuances of recognizing paternity and collecting alimony outside of marriage

When making a decision, the court is guided by the evidence presented by the parties:

1. If there are DNA test results, this may not be enough to make a decision.
2. If the defendant misses court dates without good reason or refuses to take testing, the judge will take this into account. In such cases, a decision is made on the basis of the evidence presented.
3. If there are difficulties with conducting a forensic medical examination, and the plaintiff insists on this, then the consideration of the case may take several months.

The calculation of alimony begins from the moment the application is filed with the court.

ATTENTION! The parent designated as the child support payer has 10 days to appeal the court's decision. If this happens, the court order is canceled and the consideration of the case continues, but in a lawsuit.

If the alimony payer has not appealed the order, after 10 days it comes into force. By court order, alimony can be collected forcibly through the FSSP. The start date of collection begins to be considered not the day of contacting the bailiffs, and not even the day the verdict comes into force. Alimony will begin to be calculated from the day you go to court - the date specified in the application.

Execution of the court order is mandatory. Otherwise, the alimony payer may be brought to administrative and even criminal liability.

Payment terms

The beginning of the withholding of payments is not tied to the beginning and end of cohabitation and housekeeping, or to the birth of children, but is counted from the moment the claim is filed with the justice authority and the fact of paternity is established. If biological kinship is recognized voluntarily upon registration, then under special circumstances it is possible to recover payments for the three years preceding the application to the court.

Alimony for an illegitimate child is paid in the general manner:

• before reaching the age of majority (18 years old according to the passport) or early (when opening an individual business, employment or entering into a marriage);
• before graduating from a higher educational institution when studying full-time, but no later than reaching 23 years of age.

The exception is congenital or acquired childhood disability, which deprives the child of the opportunity to provide for oneself independently. Then payments are assigned until the condition is stabilized or for life without connection with origin.

Results

So, let’s highlight the main points of the topic presented in this article:

• To receive alimony from a parent who evades financial support for a child, it is not necessary to officially dissolve the marriage
• In addition to the child, a spouse who is disabled or in need of financial support has the right to alimony in marriage
• Alimony can be obtained either voluntarily (by agreement) or through the court (by receiving a court order or having achieved satisfaction of a claim)
• To obtain a court order, you need to submit a certain set of documents to the magistrate's court.
• The applicant does not pay the state fee
• Consideration of a case by order does not require the presence of the parties in court
• The case is considered within 5 days after filing the application
• The court order can be appealed within 10 days. If there is no appeal, after these 10 days the order comes into force.
• The start date of alimony payments is the date of filing the application with the court
• If the alimony payer refuses to voluntarily comply with the court decision, the order may be transferred to the FSSP
• For non-payment of alimony, a court decision provides for administrative or criminal liability.

If you have any questions or require clarification of this or that point in relation to a specific situation, please contact the lawyers of the Prav.io portal.

If the collection of alimony in marriage requires legal proceedings, you can find a family lawyer on the portal who will help you win the case in court.

What to do if the father does not recognize the child

If the father does not recognize the child and refuses to pay child support, paternity must first be established. This has already been mentioned above, but it was not said how exactly this procedure is carried out.

Procedure

1. Collect evidence base. The main document of this type is a DNA examination, but in addition to it there may be other papers confirming the fact that the defendant is in fact the father of the child. Don't neglect them.
2. Submit an application to the court.
3. Wait for the review date.
4. Attend the meeting or send representatives.
5. Get a court decision.
6. Wait for it to come into force.
7. Based on the decision to make an adjustment to the birth certificate.
8. Submit documents for alimony payments.

Statement

Required documents

The following documents must be attached to this type of claim:

• Passport of the submitter of the claim.
• Baby's birth certificate.
• Evidence showing that the defendant is indeed the father of the child. Since this point is best proven by DNA testing, you should try to do it first. However, you need to understand that a man may refuse to donate blood for analysis. According to Article 79 of the Code of Civil Procedure of the Russian Federation, evasion of an examination can be considered as the fact that a person knows the result in advance and therefore it will be recognized as such in court. Thus, avoidance only makes the situation worse, rather than helping to avoid it.

Example: The mother of a child files an application to court to establish paternity. The potential father and future payer of alimony is a man who denies everything and claims that he has never seen this woman. However, he does not provide evidence of this. The woman offers to conduct a DNA test and gives permission for the child's blood to be taken for analysis. The man refuses to do this, on the basis of which the court automatically comes to the conclusion that the defendant is deliberately avoiding the test, knowing full well what the result will be. In such a situation, the decision will be made in favor of the plaintiff.

Deadlines

Applications of this type, both to establish paternity and to transfer child support, can be submitted at any time, starting from the moment the child is born. It should be borne in mind that the longer this is delayed, the lower the amount of alimony will be, since payments for the past period are accrued only in exceptional cases, when the plaintiff really did not have the opportunity to submit an application earlier and can prove it. Paternity can be established absolutely at any time, since this fact does not necessarily have to be associated with alimony payments. Thus, the statute of limitations does not play any role here.

Dealing with both establishing paternity and assigning alimony is quite difficult for a non-specialist, since many small nuances and features must be taken into account. Our experienced lawyers will help you cope with the situation. At a free consultation, they will be able to clarify a number of controversial issues, and in the future they will help both with the collection of evidence and with the preparation of documents, or they can even represent the client’s interests in court.

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