Russian family law guarantees minor children the right to alimony from their parents. It doesn't matter whether they are married or divorced. Nevertheless, approximately 1/3 of women in our country refuse alimony from their ex-spouse, this is facilitated by psychological and other reasons. To cancel the procedure for collecting child benefits from the father, you need to know how to withdraw an application for alimony.
Interaction with bailiffs
The need to contact officials of the bailiff service arises in the event of a debtor’s failure to comply with the provisions of an agreement or a court decision on the payment of alimony.
In such a situation, the recipient (hereinafter referred to as the collector) sends an application for forced deduction of funds from the payer, and the bailiff undertakes to organize the collection of alimony from wages and/or other income in his favor.
This process is called enforcement proceedings, and it consists of 5 stages:
- Consideration of the submitted petition and, if it is consistent, acceptance.
- Initiation of proceedings in the case.
- Identification of sources and amounts of income of the debtor.
- Making a decision to withhold alimony from the payer’s salary, pension, benefit or other income (in the case where there is none, to sell his property at auction to pay off the debt from the proceeds).
- Carrying out the activities specified in the resolution (submitting a document to the debtor’s place of work, seizing property, etc.).
The end of the proceedings occurs after sending a copy of the writ of execution to the place of work of the alimony worker to withhold monthly payments or after the termination of the grounds for their payment. But in case of further failure to comply with the still valid collection order, the case may be reopened.
Why refuse alimony?
Most often, psychological reasons become the basis for refusing alimony:
- Personal dislike for ex-spouse.
- Reluctance to communicate with him, etc.
In addition, the reasons for refusal are:
- Poor financial situation of the payer.
- The ability of a parent raising a child to provide for him independently.
- Transfer of foreclosure from one parent to the second.
- Transfer of parental rights of the alimony holder to another person (stepmother or stepfather).
- Deprivation of the claimant's rights to a minor child.
- The child's coming of age or restoration of his ability to work.
Despite the above reasons, there is no official justification for refusing alimony.
From the point of view of the law, this is considered an infringement of the rights of the child and the rights of the parent to help their child.
Is it possible to withdraw an application for alimony?
A petition for the collection of alimony can be withdrawn at any stage of the proceedings, both executive and lawsuit (still in court). This right is established by the Civil Procedure Code of the Russian Federation and Federal Law N 229-FZ.
The court at the location of the bailiff service is competent in this matter. It is he who, in accordance with the established procedure, makes decisions to terminate proceedings or cancel the legal force of the executive document on the basis of which it was initiated.
And this happens in such cases:
- A claim was filed with the court and granted to deprive the executive document of legal force (due to its invalidity).
- The plaintiff refused to receive alimony, and his intention was approved by the authorized judicial body.
- The parties entered into a settlement agreement.
- The grounds on which the claimant was entitled to monthly maintenance disappeared (the child reached the age of majority, was recognized as emancipated and adopted by the other parent, the adult recipient regained his ability to work, the former spouse entered into a new marriage).
Based on the relevant judicial act or due to changes that have occurred, the bailiff approves the termination of enforcement proceedings.
How to withdraw a claim before the trial begins?
Withdrawal of a claim is the refusal of the initiator of the dispute to claim the stated or planned legal case. This happens if the situation is resolved peacefully, without the need to contact the servants of Themis.
Sometimes defendants, having received a notice from the court about a summons to a hearing, themselves contact their former spouses and initiate the payment of alimony. In such situations, the plaintiff has the right to withdraw his application, explain the reasons for the refusal and stop the proceedings.
In accordance with Article 39 of the Code of Civil Procedure of the Russian Federation, the applicant has the right to waive claims or change them at each stage of the proceedings . The government agency, in turn, accepts any decision of the plaintiff, if this does not contradict the law.
In order to close a civil case before the start of trial, you must contact the office with an application to abandon the claim. It is recommended to do this before the date of the preliminary hearing. The document will be registered and will be submitted to the judge for consideration. The applicant will have to wait for the decision, for which he will be given an appropriate decree and the statement of claim will be returned.
The procedure takes little time, and you can check the status of completion of the case on the official website of the Supreme Court of the Russian Federation. To do this, you need to know the production number, type and date of receipt of the claim.
Who can pick it up
Both the recipient himself and his representative, legal or voluntary, have the right to withdraw an application for forced collection of alimony.
The need for the first arises in cases where the recipient himself does not have sufficient powers to independently represent his interests - he has not reached the age of 18, or has been deprived or limited in legal capacity by the court. And then the responsibility to protect his legal rights arises with the parent, guardian or trustee.
A fully capable citizen, if he does not want to deal with this issue personally, has the opportunity to entrust part of his powers to another person. To do this, he will need to draw up and have the appropriate power of attorney certified by a notary.
Cancellation of an order that has entered into legal force
The exact date for the order to enter into force is not established by law. It is believed that it begins to be calculated from the moment of delivery, but here the delivery time by mail should be taken into account.
If within 10 days from the date of sending the notice of delivery the alimony provider does not raise any objections, this may happen for the following reasons:
- The order was received, but the payer did nothing, and at the end of the period decided to object.
- Challenging the order was impossible for good reasons: serious illness, stay outside the city, etc. Here it is necessary to submit an application to restore the deadlines, indicating in it the requirement to cancel the order.
- The alimony holder may not receive the document if it is with the bailiffs. As a rule, this happens when the recipient of alimony is in another city.
- The document was received by a third party. Despite the fact that the delivery of materials containing personal data to strangers is considered a violation of the law, such cases also often occur.
In the above situations, if all the deadlines have expired, it is necessary to apply to the court with an application for their restoration and for the annulment of the order. Both demands can be presented simultaneously (Article 112 of the Code of Civil Procedure of the Russian Federation).
Let's consider a situation from judicial practice:
At Larin S.V. and Larina O.L. there are two young children. In April 2021, the couple decided to divorce. Since they have a minor daughter and son, the divorce must be carried out in court. Simultaneously with the application for divorce, the woman filed an application for a court order to collect alimony. The document was received by the spouse on May 20, 2016, but at that time he was on sick leave and could not raise an objection.
The sick leave was closed only on 06/05/2017, therefore, Larin S.V. deadlines were missed. To restore them, he sent an application to the place where the order was issued, because considered that alimony should be established for him in a smaller amount. The request to restore the deadlines and cancel the document was satisfied. Further contestation was carried out by the wife through a lawsuit.
Procedure
In order to collect an application for alimony from the bailiffs, the interested person will need:
- Make an appeal. Indicate in it the number and name of the bailiff service, your full name and address, details of the writ of execution, the reasons for withdrawing the application and the date of its filing.
- Send the document to the service unit at the location of the court that approved the need to collect funds or cancel such a decision.
- Wait for the review results (takes no more than 4 days).
A request to terminate enforcement proceedings for alimony can be sent by mail, provided that the signature of the claimant (his representative) on it is notarized.
Is it possible to refuse alimony?
The legislation does not stipulate the issue of refusal of alimony.
The main requirement of the law is that the actions of the parents (payer and recipient of alimony) do not infringe on the rights of the child.
Sometimes a mother or father categorically refuses child support, although their own financial situation leaves much to be desired.
If the guardianship authorities prove that the child is not receiving proper support, then the employees have the right, despite the refusal of the mother or father, to collect alimony and even demand deprivation of parental rights.
If the child’s rights are not violated, then it is not difficult to withdraw the application . How to do it? Read on.
Consequences of refusing a claim for alimony
The withdrawal of an application for the collection of monetary support entails the termination of enforcement proceedings and the application of measures for forced deduction of funds from the debtor.
After the approval of the relevant resolution, money is no longer deducted from the income of the alimony worker, the seizure of his property is lifted, and other restrictions applied to him become invalid.
On the issue of collecting existing alimony debt, if the claimant specifically requests this, additional proceedings will be initiated. The materials on the terminated main case will remain in the archives, and it will no longer be possible to submit a similar petition a second time.
However, if the proceedings were completed as a result of the cancellation of the writ of execution or after a change in the circumstances that previously served as the basis for the calculation of alimony, the case for their collection is restored at the initiative of the bailiff or at the request of the claimant.
An application to initiate enforcement proceedings may be accepted again, without restrictions, in the event of failure by the debtor to fulfill alimony obligations to a minor or incompetent citizen.
The withdrawal of an application for alimony from the bailiff must be done very carefully, since the consequences it entails may be irreparable. Our lawyers will help you deal with them, weighing all the pros and cons. Consultation from them is available by phone and online, and you can get it completely free of charge.
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Revocation of an agreement from a notary
It happens that one of the parents, some time after concluding a child support agreement, decides to reconsider its terms. For example, a child support recipient learns that the income of the second parent has increased significantly, and the existing agreement on the amount of payments does not comply with legal requirements. Or, on the contrary, the alimony payer believes that his money is being spent for other purposes, which violates the rights of the child.
To change the terms of the agreement, mutual consent of the parents is required (). Unilateral changes to agreements are not permitted. If it is not possible to reach a consensus, a review of the payment procedure is carried out in court. In this case, the court will take into account the arguments of both sides.
Download the statement of claim for invalidation of the alimony payment agreement (sample/form)
Consequences of canceling an order
If the order was canceled due to the parties reaching a peaceful agreement, there will be no legal consequences for any of them. Everything changes in the case when the annulment occurred on the initiative of the alimony provider: in such a situation, the payer needs to claim alimony in the framework of a claim rather than an order proceeding.
There is no time limit for filing a claim - the main thing is that the obligation to pay alimony is not lost by the payer. The latter occurs when the child reaches adulthood, or upon his adoption, emancipation before the age of 18 (marriage, birth of a child). Also, a spouse can request alimony for herself if she has lost her ability to work, during pregnancy or raising a child under three years old, but in this case the procedure is carried out by filing a claim.
