Is it possible to return child support if the child is not mine?

Reasons for overpayment

There are many reasons why alimony was overpaid. The procedure for obtaining a refund will depend on why the excess money was transferred. Most often this is:

• The parent receiving child support intentionally provided false information, which played a role in determining the amount.
• An error occurred in the company's accounting department and more was accrued than it should have been.
• An error occurred during the registration of alimony obligations.
• The official intentionally changed the amount in the documents, but this will already be considered as an official crime.
• The amount was changed, but the party making the payments has not yet received such information, so the amount was transferred more than necessary. At the old rate.

If the amount of alimony was greater than due due to the fault of the recipient parent, then the latter may even be liable under a criminal article for intentionally providing false information or even forged documents.

Payment of temporary alimony in smaller amounts

If temporary child support was less than what was awarded by the court, then the parent paying the alimony is obliged to pay this difference, since the law equates underpayment of alimony, even through no fault of the payer, to debt.

Debt collection is carried out in accordance with the general procedure contained in Article 113 of the RF IC.

According to the same principle, the person obligated for alimony incurs arrears of alimony in favor of a disabled mother, father, adult child, etc. The payer must cover this difference, otherwise the person may be subject to liability measures provided for by the RF IC for the formation of debt.

You can find out the amount of debt from the federal bailiff in charge of the enforcement case, who calculates obligations taking into account the awarded monthly payments and monitors the timeliness of execution.

In what cases is it possible to return overpaid alimony?

The Family Code of the Russian Federation generally states that it is impossible to return the overpayment - after all, these are funds for the maintenance of your child, how can you take it away from your child? From a moral point of view, this is true, but if the payer has a difficult financial situation or has a family, then he may also need the money.

From a legislative point of view, exceptional cases that allow you to return overpayment of alimony are:

• The court decision for which alimony was paid was canceled due to the fact that the fact of forgery and deception was established.
• Evidence was provided that the alimony agreement was drawn up under duress and not voluntarily.
• It was established that the documents on the basis of which alimony was calculated were forged.
• Paternity is disputed. But, in such cases, alimony does not always need to be returned. If a natural father is found who will undertake maintenance obligations, then the previous one will be released from this.

It is important that if an overpayment occurs due to the fact that the parties misinterpreted the law, the overpaid amount will not be returned. The amount of the overpayment can only be recovered from the person who is to blame for the error; the savings and property of the child himself must remain inviolable.

When is it possible to return child support payments?

The grounds for the return of funds paid towards the obligations for the maintenance of a minor are described in the second paragraph of Article 116 of the RF IC. In particular, the legal document regulates that a return is possible if:

1. The court overturned the decision to recover funds from the citizen due to the fact that the initial statement of claim contained false information and was supported by forged documents.
2. The alimony agreement concluded between citizens was canceled due to the pressure of the claimant on the alimony obligee using the threat of violence or deception.
3. The payer has a court verdict establishing the fact of forgery of executive documents.

If there are the above-described grounds, the alimony obligee has the right to apply to a judicial authority with a demand to recover the money previously paid from the person guilty of unequal actions.

How to return overpayment of alimony?

The procedure will depend on the reason for the overpayment.

If the error occurred due to the inattention of the company’s accounting department, then you need to write a statement to the employer asking for a recalculation. In all other cases, there are two options: a peaceful resolution of the issue with the recipient or going to court.

Since the legislation in matters of parental support for their children takes the latter’s side, it is possible to return overpayment of alimony only if this was due to the fault of an official or the second parent.

Let's consider all of the above cases in more detail.

How to write an application to the accounting department of an enterprise?

An application for refund of overpayment of alimony is written to the director of the enterprise. The appeal must indicate in detail the circumstances of the case and demand that someone responsible for the error be identified, as well as the extra money returned.

The overpayment will be returned to the payer, and the costs resulting from the error will be borne by the person who made the mistake. The recipient of alimony in such a situation will not be held liable, since he is not guilty of being given more money than he needs.

Statement of claim to court

If you need to go to court, it is better to discuss the question of how to return overpaid alimony with a lawyer - a specialist will advise and help you draw up the application correctly.

If the amount of the overpayment is less than 50,000 rubles, then a claim must be filed in the city magistrate court. If an overpayment exceeds fifty thousand rubles, the case must be heard in a court of general jurisdiction.

The algorithm for considering a case in court is approximately as follows:

• A claim is filed.
• The appeal is considered by a judge.
• At the court hearing a decision is made.
• If the claims are legitimate and the court has satisfied them, then a corresponding writ of execution is issued.
• The writ of execution is submitted to the FSSP.
• At the request of the payer, the excess amount can be offset against future payments.

If during the consideration of the case it is established that the overpayment of alimony was due to forgery of documents or official forgery, then the court, within the framework of the same legal proceedings, sends a decision to law enforcement agencies to consider this fact of a criminal offense.

Refund of alimony when paternity is contested

The same procedure is carried out in the event that paternity is challenged and the child’s biological parent is found and brought into child support obligations. The procedure here is approximately as follows:

• A lawsuit is filed to challenge paternity and return the alimony paid.
• If the defendant does not agree, then the DNA examination is carried out forcibly by court decision. It is paid by the applicant, but if the fact of paternity is disputed, the defendant must reimburse the costs.
• Then everything happens according to the algorithm described above.

Sample claim

In the statement of claim for the return of excessively transferred alimony, you must indicate the following information:

• Name of the court where the appeal is filed.
• Full name, data, address of actual residence of the plaintiff and defendant.
• Circumstances of the case, indication of the document on the basis of which alimony was transferred before.
• A request to return the overpaid amount or offset it against future payments.
• List of attached documents.
• Date and signature.

Important - in this case, only the alimony payer can file a claim.

What documents are needed?

You need to have the originals with you:

• Passport.
• The document on the basis of which alimony was previously calculated.
• Certificate of income from the place of work.
• Documents confirming the fact of payment of alimony.
• The claim itself.

This is a basic package of documents. It may be supplemented depending on the circumstances of the case.

Resolution on the collection of alimony until the dispute is resolved by the court

The basic family law of the country, as well as Resolution of the Plenum of the Supreme Court of the Russian Federation No. 9 of October 25, 1996, provide for the possibility of collecting alimony for the maintenance of a child under the age of 18 on a temporary basis. This procedure for payments is established by the district court during the consideration of the application in the procedure of claim proceedings or by the magistrate during writ proceedings before the final decision acquires legal force. Determining the amount of parental debt on a temporary basis is carried out in one of the following ways:

• Share of the earnings of the person liable for alimony;
• Fixed amount.

Other types of alimony (for the maintenance of an adult disabled child, parents, etc.) are collected ahead of schedule, i.e. before the decision comes into force, but from the moment it is made. The decision of the district court itself will become legally binding after the deadline for filing a complaint against it, which is 10 days, has expired, or when the complaint has been considered and the decision has not been changed or cancelled. If the case is considered by a magistrate and an order is issued, the period for filing a complaint will be 5 days from the date of receipt.

Early collection of child support through the court is carried out on the basis of a court order of a district or magistrate judge, the issuance of which does not depend on the stage of the process.

Thus, a resolution can be born from the moment the claim is accepted until the court decision in the case acquires legal force.

Before making a decision on the temporary fulfillment of parental debt for the maintenance of their child during the simultaneous divorce of the spouses, the district judge and only he, since such claims are not subject to consideration by justices of the peace, evaluates the participation of the person on whom he intends to impose the debt for the maintenance of the child in his voluntary material support , as required by the Resolution of the Plenum of the Supreme Court of the Russian Federation.

If the district judge determines that the parent has not properly fulfilled his obligation to support the child, the decision is issued immediately and is subject to execution until the district court makes a final decision on the case of divorce and awarding alimony, or until it is cancelled.

The form of the court decision on the collection of alimony ahead of schedule, both by the magistrate and the district judge, is represented by a judicial ruling, which acquires legal force from the moment of its issuance.

In this case, the alimony recipient, when filing a claim for the award of alimony to the Supreme Court of the Russian Federation, any district or world court subordinate to him, is exempt from paying state duty. This benefit for paying state fees applies both to the consideration of the claim itself and to the interim decision on the temporary award of alimony.

Who should compensate?

The return of money already transferred for the child’s needs should be carried out in such a way as not to affect his interests. That is, payment of compensation cannot be made at the expense of the property or savings (in the case of a savings book, for example) of a minor.

The money must be returned to the person through whose fault such an “error” occurred. In the case of accounting, it is the enterprise and the employee responsible for it. If it is the fault of an official who falsified documents, then he will be responsible. The same is true for the recipient parent.

From whom is child support collected?

When parents divorce and child support is collected, the father’s statement “I will not pay child support because this is not my child” will remain unnoticed by the court.
Proof of the origin of children is the birth certificate, where information about the parents is entered during registration. The court, having a birth certificate, is guided by the information about the parents indicated in it. They are awarded alimony. If there is sufficient evidence, a decision will be made to collect alimony from the defendant, who is recorded as the father, since he is the father by law. Article 52 of the RF IC gives citizens the right to challenge their paternity and maternity. If paternity is established on the basis of paragraph 2 of Article 51 of the RF IC on a joint application of the parents and the father knew that he was not the biological father, no court will cancel his paternity. DNA testing will confirm the person’s statement “This is not my son!” only at the household level. According to the law, you will have to bear full responsibility for providing for the child, at least in the form of alimony.

Let's sum it up

Excessively overpaid alimony - how to return it and where to apply? The RF IC states that it is generally impossible to return children’s money, since this is not in the interests of the child. But, if this happened due to an error in the accounting department, or due to the fault of an official or parent, deliberately providing false information, then a refund of the overpayment is possible - upon application to the director of the enterprise or through the court.

The statute of limitations for such cases is three years. That is, you can only return the overpayment for this period. In addition, if during the consideration of the claim it is established that the overpayment arose due to forgery, a criminal case will be opened on this fact.

What to do if there is overpayment of alimony

There are often cases when an amount of funds exceeding that specified in the agreement or writ of execution is forcibly collected from the alimony obligee. The reasons for an illegal increase in alimony, as a rule, are:

• an unconscious mistake made by an official when calculating or transferring alimony;
• collection of computer equipment, resulting in incorrect deduction of money from the salary of the alimony worker;
• failure to timely inform the accounting department about changes in the monthly fee;
• typo in the executive document;
• intentional act of an accountant or other person making a money transfer of funds.

Important! If during the proceedings regarding the overpayment it turns out that the culprit of the error is a third party, then the excess money will not be recovered from the recipient of the funds. In this case, the responsibility for the overpayment lies with the citizen who made an error in calculating the amount of alimony obligations.