Resolution of the Plenum of the Supreme Court of the Russian Federation dated October 25, 1996 N 9 “On the application by courts of the Family Code of the Russian Federation when considering cases of establishing paternity and collecting alimony”

Structure of the Decree

The draft includes 16 points, each of which contains clarifications that help ensure stable law enforcement practice.

The speaker noted that the logic of the presentation of the material is based on a consistent analysis of the elements of an administrative offense.

The first two paragraphs of the project formulate fundamental approaches for the correct resolution of this category of cases. Thus, paragraph 2 states: “By violating a judicial act or agreement on the payment of alimony, one should understand failure to pay alimony in the amount, on time and in the manner established by this decision or agreement.”

What points does it regulate?

The resolution of the Plenum on alimony clarified a number of issues regarding alimony obligations, which were previously inconsistently understood by both courts and lawyers. This inconsistency arose as a result of legislative gaps, since the Family Code did not provide for certain aspects.

The Plenum Resolution regulates alimony as follows:

• Issues of establishing paternity and challenging it, as well as similar questions about motherhood. The Plenum establishes that its norms do not apply to relations that arose before the entry into force of the code.
• The Plenum draws attention to the fact that the rules by which paternity was established earlier (in court) differ significantly from those introduced by the norms of the Family Code. When choosing the necessary norm, the court must proceed from the date when the child was born. With the adoption of the code, the court can accept any evidence that confirms the fact of paternity, as well as evidence that the father acknowledged this fact.
• If the parents were not married, then the issue of establishing paternity should be considered only by filing a statement of claim at the request of the interested person. There is no limitation period for this category of cases.
• Establishment of paternity in the case where the citizen who recognized this fact has died is carried out in a special proceeding. To do this, it will be necessary to provide the court with evidence of recognition of paternity by such a person.
• The court has the right to order an examination to establish paternity. The result of the examination must be assessed by the court along with other available evidence.
• The Plenum allowed the filing of claims for the collection of alimony payments and a claim to establish paternity in one claim. If the demand is satisfied, then alimony is subject to recovery from the moment the claim is filed.
• Information from the civil registry office about the father or mother of the child may be removed if the appropriate court decision is made.
• If a person knew the fact that he was not the father of the child at the time of making the corresponding entry, then he cannot challenge the entry, but he has the right to challenge it if it was made under the influence of deception, threats, and so on.
• The court can make an order, but only if the order does not address the requirement to identify the father.
• If alimony is established in a fixed amount, then its amount must be determined by the court, taking into account the need to provide the child with his usual standard of living. The size is determined based on the needs of the recipient, as well as the capabilities of the payer, that is, the interests of both parties should be taken into account as much as possible.
• The requirement to collect alimony payments in the established amount is considered by the courts only by filing a claim.
• In order to determine the amount of alimony, the courts must take into account all circumstances relevant to the case, such as the financial situation of the parties, their state of health, and so on.
• The Plenum allows for the possibility of transferring half of the amount of alimony to the children’s accounts, which he can use upon reaching adulthood. However, this procedure is allowed only when half of the amount is enough to meet their basic needs.
• Exemption from payment of alimony is carried out in court, even if the child has been taken into custody by the parent who previously paid alimony.
• Disabled but capable children independently file claims for alimony. Their representatives can do this for those who are incapacitated.
• If the children were placed in the care of a special authority, then alimony may be collected from their parents.
• If the child becomes fully capable before the age of eighteen, then child support is no longer paid.
• The collection of alimony may be refused if the recipient is found to have behaved inappropriately or intentionally commits a crime against the payer, his family or property.
• The agreement to pay alimony is terminated and declared invalid in the manner applicable to any transactions in accordance with the Civil Code of the Russian Federation.
• If alimony is paid for a disabled spouse, then payment may be refused if the recipient is placed in a specialized institution. But in the event that he needs additional care or treatment, alimony may also be collected.
• Actual caregivers, as well as stepfathers and stepmothers, can also collect child support, but provided that they are disabled and have been raising children for at least five years. Otherwise, collection will be impossible.
• A claim for alimony can be filed not only in the place where the defendant lives, but also in the place where the plaintiff lives. The applicant can independently choose the territoriality.
• If alimony arrears arose through no fault of the payer, then sanctions for delay cannot be applied. The defendant will have to prove that he was unable to repay the debt on time.

Is alimony paid from an individual entrepreneur? The answer is presented in the article “How to collect alimony from an individual entrepreneur.” You can find out whether the child’s father can apply for alimony for his maintenance here.

Reasons for non-payment of alimony

The resolution also contains reasons for non-payment of alimony, which the court may regard as valid. According to paragraph 5, valid reasons for non-payment of alimony can be recognized as such circumstances in which the non-payment of funds for the maintenance of children or disabled parents occurred regardless of the will of the person obliged to pay alimony (for example, due to his illness (disability); due to the fault of other persons , in particular in connection with non-payment of wages by the employer, delay or incorrect transfer of alimony amounts by the bank; due to force majeure circumstances; due to the person’s military service being conscripted).

In this case, the disagreement of the person obligated to pay alimony with the amount of amounts to be paid for the maintenance of children or disabled parents will not be considered as a valid reason.

The courts, Nikiforov points out, are guided by the fact that the reasons for non-payment of alimony in all cases are subject to assessment.

When was it accepted?

After the adoption and entry into force of the new Family Code, some explanation of its norms and their specification were required.

For this purpose, in the same 1996, it was adopted “On the application by courts of the Family Code of the Russian Federation when considering cases of establishing paternity and collecting alimony.”

The document was adopted to clarify the laws governing public relations in the field of alimony obligations, as well as on issues related to the fact of paternity and its establishment.

How to receive payments for children in a civil marriage? The answer is presented in the article “Is it possible to receive child support if the marriage is not registered?” You can find out how alimony is paid to your ex-wife here.

Change, termination and invalidation of an alimony agreement

An alimony agreement on the collection of funds, voluntarily concluded between the recipient and the alimony payer in accordance with Articles 99 and 100 of the Family Code, must be certified by a notary. In addition to the fact that the agreement has all the attributes of a civil contract, that is, it must comply with the articles of civil legislation, it is also an executive document. It is also possible to change or terminate an alimony agreement by the voluntary consent of the parties, and their will is recorded in a notary’s office.

However, if the parties cannot agree on the issues of change and termination, and also if the alimony agreement contradicts the requirements of the law or violates the rights of the parties, then the conflict may be considered by the court.

The condition for consideration of disputes of this kind in a justice body is the existence of a pre-trial settlement of conflict relations, proven by documentation. As stated in the resolution with reference to articles of the Family Code, the basis for changing and terminating an alimony agreement in court is a significant change in the financial or marital status of the parties.

In addition, the agreement may be invalidated if:

1. One of the parties to the contract is incapacitated.
2. The agreement was concluded as a result of deception, violence, and threats.
3. The party was forced to sign the agreement under the influence of extremely unfavorable life circumstances.
4. The parties or one of them, when concluding an agreement, pursued other goals, that is, the agreement bears the signs of a fictitious, imaginary, feigned agreement.

The resolution states that the alimony agreement is invalid, in accordance with the articles of the Family Code, if its terms violate the rights of the child, that is, the amount of maintenance does not correspond to the minimum established by law.

How to calculate the penalty?

The obligation to pay alimony is monthly, so the penalty must be calculated for each overdue monthly payment based on the amount of this payment and the number of days it is overdue.

When calculating the penalty, it is necessary to take into account its change since August 10, 2018.

• until August 9, 2021 the penalty is calculated based on 0.5% of the debt amount for each day of delay;

• from August 10, 2021 a penalty equal to 0.1% of the debt amount is applied for each day of delay.

Example:

Amount of alimony for January 2021 is 15,000.00 rub. The debtor is considered to have overdue the obligation to pay alimony from February 1, 2021. Starting from this date, the number of days of delay is calculated.

As of August 23, 2018, the calculation of the penalty will look like this:

15,000.00 (amount of debt for January) * 0.5% (amount of penalty) * 190 (number of days of delay for the period from 01.02.2018 to 09.08.2018) = 14,250 rub. 15,000.00 (amount of debt for January ) * 0.1% (amount of penalty) * 14 (number of days of delay for the period from 08/10/2018 to 08/23/2018) = 210 rubles.

Total: For the period from 02/01/2018 to 08/23/2018, the amount of the penalty amounted to 14,460 rubles. (14,250 + 210 = 14,460).

If the penalty is established by agreement of the parties, the procedure for calculating it depends on the terms of the contract.

How to start acting and receive alimony payments for past years?

The main document that will help with the beginning of the procedure is a statement of claim for the collection of alimony for the past period. Together with the divorce certificate and the baby’s birth certificate, it goes to the court.

After a decision has been made on the case and it has entered into legal force, a writ of execution is ordered and obtained. Such a document is transferred to the bailiff service, whose employees are charged with collecting the specified amount.

Alimony obligations of other family members

Alimony obligations of other family members are regulated by Articles 93-97 of the Family Code of the Russian Federation. The law contains a definition of other family members, these include:

1. Full-blooded and half-blooded brothers and sisters.
2. Grandparents.
3. Grandchildren.
4. Stepfathers and stepmothers.

According to the resolution and articles of the law, the condition for the emergence of the right to collect alimony is the incapacity of a family member, the need for funds and the impossibility of providing financial assistance to closer relatives such as parents or spouses.

When considering this category of claims, courts take into account:

• the plaintiff’s lifestyle, so if abuse of alcohol, drugs, or immoral behavior is proven, then maintenance will be denied;
• information about relations between relatives, if it is proven that such a family member, if possible, at one time did not provide any assistance to the defendant, although he needed it, then payments may also be denied;
• the financial ability of other family members to pay financial support, and whether the rights to financial assistance of other close relatives who are dependent on the defendant are not violated.

It is important to know that all able-bodied adult relatives are co-defendants when collecting alimony for other family members.