Litigation regarding the payment of alimony is one of the most common in the practice of magistrates' courts. Since alimony ensures the constitutional freedoms of minor children or disabled citizens, claims for their collection are considered by the courts in the first place. Most often, the decision is made in favor of the plaintiff, but sometimes situations occur when unreasonably high amounts are withheld from the alimony payer. If this happens, you should apply for the return of alimony.
Refund of alimony payments when paternity is contested
How to avoid paying child support for someone else's child? This type of litigation is currently quite relevant in family law. Often the alimony payer turns a blind eye to the fact that he is not biologically the father of the child in whose favor the transfers are made, but continues to pay anyway.
In such a situation, there is a high probability of challenging the fact of paternity in court. Such proceedings allow you not only to refute your paternity, but also to return funds transferred in favor of someone else’s son or daughter.
The legislation protects the rights of the child as much as possible, therefore child support payments will be stopped only from the moment the court decision is made. Before this, genetic testing will be carried out and other evidence will be considered.
If it turns out in court that previously alimony was not paid intentionally, the court may decide to impose a punishment for non-payment.
It is possible to return in court the funds paid for the maintenance of someone else's child for past periods only if it can be proven that the child's mother deliberately misled the judge considering the case of alimony collection. This can be done within the limitation period.
When starting a legal battle, the plaintiff must understand that the claim for compensation for unlawful benefits will need to be sent to the recipient of alimony, and the court decision to pay this alimony must be canceled in court. The listed methods are the only options for not paying child support for someone else’s child.
Let's sum it up
It is difficult to prove the fact that the woman deliberately misled the plaintiff and used the alimony he transferred to benefit herself and her child. However, the man has a chance to get help from the court. In such life circumstances, it is recommended to seek help from a professional lawyer - a specialist will help to competently and clearly substantiate the claims, which increases the chances of a successful outcome of the case in court.
Sources
- https://pravovoiexpert.ru/alimenty/vozvrat-alimentov-pri-osparivanii-otcovstva/
- https://law-divorce.ru/vozvrat-alimentov-pri-osparivanii-ottsovstva/
- https://posobie.online/alimenty/osushhestvlenie-vozvratf-alimentov-posle-osparivaniya-ottsovstva.html
- https://ros-nasledstvo.ru/vozvrat-alimentov-pri-osparivanii-ottsovstva/
- https://glavny-yurist.ru/vozvrat-alimentov-pri-osparivanii-otcovstva.html
- https://AlimentOff.ru/alimenty/vozvrat-alimentov-pri-osparivanii-ottsovstva
- https://familegal.ru/alimenty/vozvrat-alimentov-pri-osparivanii-otcovstva/
- https://allo-urist.com/vozvrat-alimentov-pri-osparivanii-ottsovstva/
- https://SocPrav.ru/vozvrat-alimentov
Cancellation of alimony
The collection of alimony stops after the result of a genetic examination and other studies that confirm that the man is not the father of the child. Cancellation of alimony occurs from the moment the relevant court decision is made and this decision is provided to the bailiff service.
In some cases, for example, if it is not possible to establish the father of the child, the court may oblige the alimony provider to pay money for the maintenance of this child until paternity is established or the child is adopted.
How to cancel a groundless alimony award
If a fact is discovered that proves the absence of a biological relationship with the child, the parent can file a civil lawsuit in court. In such cases, the law gives the father the right to demand that the entry in the document confirming the fact of birth be changed. A child who has reached the age of 18 or his guardian also has the right to challenge paternity.
When filing a claim, the parent will need to enter a request to cancel payments before the court makes a decision. But funds for child support during this time will continue to be transferred in favor of the child.
If the defendant agrees with the demands presented in court, the claim will be satisfied without ordering an examination. Otherwise, the court will order a DNA test, which will be paid for by the plaintiff. If biological paternity is denied, legal costs will be reimbursed by the defendant.
Arbitrage practice
In theory, everything seems simple: the ex-husband proved that his wife deliberately misled him about the relationship with the child - he received the money.
But in reality, it is very difficult to confirm the fact of forgery or malicious intent on the part of the mother for the purpose of enrichment.
And, as a rule, this could not have happened without the help of competent lawyers.
For the most part, it is not possible to prove the fact of deception - at the trial, the defendant assures that she herself was mistaken and, right up to the genetic examination, was sure that the plaintiff was the father.
However, there are legal grounds for this procedure.
This means that if the claim is well-drafted and conclusive evidence is presented, there is still a chance to recover the funds spent over three years.
Theoretically, it is possible to return illegally paid alimony. However, judicial practice is not on the side of the victim. This is due to the problem of proving the plaintiff’s case. First of all, the court tries to protect the interests of the minor.
Example. Grigoriev A.V. filed a lawsuit against his ex-wife Grigorieva E.A. on the recovery of unjust enrichment. He indicated that, by decision of the magistrate’s court, he paid alimony for a minor child. The court granted his claim to challenge paternity, and therefore the court order imposing alimony payments was canceled. Grigoriev A.V. believes that the ex-wife acted in bad faith; she knew about the absence of a family connection between him and the child. The judge found that Grigorieva E.A. did not dispute the results of the genetic examination, since she herself did not know that her ex-husband was not the father of her child. The plaintiff has not proven that the defendant acted in bad faith. Therefore, the recovery of paid maintenance was refused (Appeal ruling of the Samara Regional Court dated March 22, 2016 in case No. 33-3207/2016).
Refund of paid alimony after challenging paternity
Men who begin the procedure are interested in whether alimony can be returned when paternity is contested. The answer is in Article 116 of the Family Code of the Russian Federation - the return of alimony when paternity is contested is not allowed.
This means that amounts already paid cannot be returned.
This is also important to know:
What documents are needed to apply for alimony and what is the procedure for considering the application
The court will also oblige the man to repay the debt to the “former” child if at the time of challenging paternity the man had arrears in child support. If the alimony holder deliberately evaded paying child support, the court will impose punishment for this offense.
Is there a refund of overpaid payments?
Is there a refund of paid alimony after the procedure for challenging paternity? It is possible to return excessively withheld funds in the following situations if:
- The company's accounting department made a mistake when calculating alimony.
- The organization was untimely notified by the recipient of alimony or the executive service about the fact that the child reached the age of majority or about a change in the amount of alimony payments.
- Errors were made when calculating accruals.
- When officials commit intentional actions.
Excess amounts paid are refunded based on actual circumstances. For example, if an error was made by the accounting department of an enterprise, then the money is returned to the employee by the organization, and the losses that the enterprise incurs are covered by deducting from the salary of the person at fault.
Recovery from the recipient is possible in court only if the defendant gives personal consent to such a procedure.
If the funds were transferred in excess due to the fact that the recipient did not notify about the changed conditions and circumstances, the money can be returned if:
- there are no objections from the guilty party. Refunds are made after sending the appropriate request;
- the recipient of alimony refuses. Refunds are made through legal process.
If during the trial it is established that there was a mechanical or accounting error that occurs when software malfunctions or typos in documents, it is also possible to return the overcharged funds.
Partial refund of overpaid alimony
Questions regarding alimony after challenging paternity periodically arise, therefore, in disputes about unlawful assignment, Article 1109 of the Civil Code of the Russian Federation is applied, which allows for partial return of money.
This legal act states that the payer has the right to demand the return of alimony payments in court. To do this, he must provide evidence of an error in calculating the funds collected in favor of the child. The basis for the return in this case will be unintentional overpayments of alimony that occurred due to a failure in the software or other equipment of the bank or organization responsible for transferring funds. In this case, only the excess will be returned.
List of grounds for partial refund of over-transferred funds:
- Accounting errors of the enterprise in which the alimony worker works.
- Lack of notification from the recipient of alimony or the executive service about the termination of alimony obligations.
- Arithmetic errors in calculations.
- System failures in computer programs.
- Mistakes by bank or post office employees when transferring alimony.
It must be remembered that an appeal for the return of overpaid funds is sent to the organization that is to blame for the error. This means that if a mistake is made by the chief accountant of the enterprise, the funds will be returned to the child support provider from the employee’s salary, and not from the child’s account.
Important
An overpayment that arose due to the fault of the claimant who did not notify about the expiration of the period for collecting alimony payments can be returned only with a voluntary agreement between the parties.
Court verdict on falsification of a writ of execution for alimony
If a man contacts law enforcement agencies with a statement about falsifying a court decision on alimony or an alimony agreement, a criminal case will be initiated against the child’s mother, in accordance with Article 237 of the Criminal Code of the Russian Federation. If the mother's guilt is proven, the court will impose criminal penalties against her. After this, the man will be able to claim the previously listed alimony in court.
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It should be understood that if it is proven that the child’s mother knew about the absence of a biological connection between the child and the alimony payer, then only the mother’s property will be subject to recovery in favor of the payer. The child's property is considered inviolable.
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Alimony is not returned - when and under what circumstances
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The losing party often challenges the court's decision. If a woman proves that she herself did not know that the alimony provider is not the father of her child, then Article 1109 of the Civil Code of the Russian Federation will be applied. According to this article, funds received from a person who is not a blood relative of the child are not returned. In this case, the court decides that the mother was mistaken about paternity, and the money would have been spent on the needs of the child. This rule applies if the appeal is filed in a timely manner. If the deadlines are missed, the court will oblige the child’s mother to pay the losses incurred by the plaintiff in accordance with Article 13 of the Code of Civil Procedure of the Russian Federation.
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Receiving money back is also impossible if the plaintiff and defendant entered into an oral alimony agreement. If the payer does not have documents confirming payment, then the money will not be returned. According to the provisions of the Family and Civil Codes, an agreement is considered valid if it is concluded in compliance with the law, and the document must be in writing and certified by a notary. Re-examination of a claim to challenge paternity is not accepted, since a decision has already entered into force.
There is an exception according to which, even if paternity is not recognized, the court can oblige the non-blood father to pay alimony to the child until he reaches the age of majority, adoption or identification of the real father. This happens if the child has no relatives who could support him, and the real father has not been identified.
Basic information
If a man is already included in the relevant documents as the father of the child, then to challenge the fact of paternity he will need to go to court.
If it is established that the plaintiff is indeed not the biological father of a minor child, certain legal consequences arise - for example, exemption from alimony payments and other legal obligations in relation to the child (relative, hereditary and others).
However, the legislation is aimed at protecting the child and mother, as a result of which the plaintiff will need to take into account the following factors:
- Child support payments can only be terminated when the court orders it.
- If the alimony holder evaded his financial obligations, which led to the formation of alimony debt, then establishing the absence of paternity does not exempt the person from repaying the debt even after the step-child comes of age.
- The return of child support that the parent has already transferred to the child can only be returned in exceptional situations.
What often happens is that paternity is disputed, but the child's biological father has not been identified.
If a woman lacks funds and is not able to fully provide for the child on her own (for example, he is very small, which does not give her the opportunity to go to work), then the court may oblige the stepfather to pay child support:
- until he reaches the age of 18;
- before the adoption of the child by the new spouse of the ex-wife;
- finding the biological father and establishing true paternity.
As for the return of alimony, Art. 116 of the RF IC establishes the impossibility of transferring funds back to a man, however, in exceptional situations, he can try to go to court.
Reader Questions
It turned out that I paid money to my stepchild. There was no court decision, only an oral agreement with the ex-wife. How to return alimony?
This is also important to know:
Calculation of alimony from wages: example of calculation of payments and sequence of actions
Answer: Unfortunately, not at all. The Family Code establishes a rule according to which an alimony agreement must be drawn up in writing and certified by a notary. The Civil Code considers these agreements as void (invalid)
I was previously denied in court to challenge paternity. Can I re-file a claim and request a refund?
Answer: Unfortunately, no. The Civil Code of the Russian Federation prohibits re-considering claims with the same requirements that were previously rejected.
The child is already 18 years old. Can I initiate a refund of alimony funds?
Answer: Yes, you can. There is no statute of limitations for family disputes, so alimony payments to an adult can be canceled at any stage within the limitation period.
Consequences arising from renunciation of father's rights
| A comment | Type of consequences |
| Prohibition on education | The ex-father cannot:
|
| Prohibition on protecting or representing the interests of a minor child | This is expressed:
|
| Loss of inheritance rights | The former father is excluded from the number of persons inheriting after the death of the child by law. |
| Loss of rights to government benefits or benefits | The ex-father cannot receive:
|
Additional questions
The child turned out to be step-child - what should the person who pays child support do?
The Family Code in Article 80 secures the payment of alimony to parents. It will not be possible to prove that the child is not your own based on guesswork. Article 52 of the RF IC establishes the procedure by which a man can challenge paternity. To do this, you will need to draw up a statement of claim, including a challenge to paternity and a clause to terminate child support payments. Otherwise, even if the court satisfies the claim to recognize a non-family relationship with a minor, the obligation to pay will not be lifted. Failure to recognize one's obligations when satisfying a claim by a court may result in prosecution.
To prove the absence of a biological relationship with the child, the man will need to initiate a judicial investigation. What do I need to do:
- draw up and submit an application to recognize your paternity as invalid and demand the cancellation of alimony payments;
- if the child’s mother admits the lack of relationship, ask to cancel the genetic examination.
If the defendant does not agree to the requirements or does not know who the biological father is, the court will decide to order a DNA test. The research is paid for by the plaintiff, but compensation for its cost falls on the defendant if the examination proves the absence of relationship. If the research carried out confirms the plaintiff’s guesses, he can file a claim in court and demand a refund. Such a statement must contain:
- claim for compensation for illegally obtained benefits;
- request to stop payments.
Which court should I go to?
This claim is filed at the place of residence of the child’s mother. If the amount of the claim is less than 50,000 rubles, the dispute must be considered in a magistrate's court. If the amount is more than 50,000 - in the district (city) court. Judicial practice notes that a demand for the return of funds is often made with a request to challenge paternity. In this case, the dispute will be heard in a city or district court.
If a man adopted his wife’s child from his first marriage, is he obliged to systematically pay alimony?
The law states that upon adoption, a child acquires the status of a natural one. At the same time, his biological parents are exempt from paying alimony, as well as from upbringing and maintenance, since they are deprived of parental rights.
In this regard, a divorce from the parent who adopted the child does not relieve him of the presumption of paternity and the obligation to pay child support. Challenging this obligation is difficult, so the alimony provider should soberly assess his chances.
The likelihood of success in such claims increases if it is proven that:
- The child in the ex-wife's family receives everything he needs.
- Alimony payments are spent on other purposes.
Sometimes a woman may require her ex-husband to write a notarized waiver of the child. In this case, her new husband or biological father will usually adopt the child.
In this particular situation, the child support provider needs to visit the registry office at the child’s place of residence, where he can obtain a certificate of adoption. After this, based on this extract, it is necessary to draw up and submit a statement of claim demanding release from alimony. After a positive court decision, the bailiffs should be familiarized with it so that they close the enforcement proceedings.
If a wife gives birth to her lover, who exactly will the court oblige to make alimony payments?
When a situation arises in which a man, through deception or mistakenly, recognizes a child as his own, the law takes the side of the deceived husband. Cancellation of alimony after challenging paternity will occur if you file a lawsuit in court and ask to remove the plaintiff’s data from the “father” column.
This is also important to know:
Claim for collection of child support: sample document and rules for writing it
When considering this claim, to establish the fact that there is no consanguinity between the plaintiff and the child, the court orders a genetic examination.
The plaintiff and the child undergo a study, which reveals the fact that there is no biological relationship. A man is exempt from child support payments for a minor.
Often men go to court if his wife has another lover, without collecting the necessary evidence, and try to renounce paternity and alimony.
Important
In this case, a DNA test is also prescribed, and if the blood connection is confirmed, the father may be held accountable.
He may face deprivation of parental rights, the imposition of an obligation to pay child support until he is 23 years old, and also incur other necessary additional costs for the child.
If a man was aware that the baby was not his even before birth and then registered the child in his name, then the law prohibits him from renouncing paternity.
Inflated alimony payments
In some cases, excess amounts of money are collected from the alimony provider. This overpayment can be refunded by law.
Reasons for overpayment of alimony:
- incorrect accounting calculations in the organization where the child’s father works;
- the result of blots, errors and corrections in documents;
- providing false documents.
In all cases, the refund is made by those persons or government authorities who are to blame for these errors.
How to offset an overpayment against future payments
To do this, you need to write a statement to the bailiff with a request to make an overpayment to the account of the next alimony payments. A similar statement can be sent to the accounting department of the enterprise.
Real life cases - typical examples of judicial practice
- The ex-husband paid alimony for 5 years, after which he filed a lawsuit for non-recognition of paternity. A genetic study was carried out, the result of which showed that the man is not the blood father of the child. The payment of alimony was canceled by the court. The angry husband demanded that his wife return the money that he had been paying for 5 years - the amount was about 2 million rubles. The child’s mother cannot return the money because she has nothing except the apartment. This became a reason for her concern: she thinks that they can take away the apartment. The plaintiff's claim for the funds paid was denied. The court justified this decision by the fact that the woman believed that she gave birth to the plaintiff and did not deceive him. The apartment will not be taken away from her and she will not have to return the money.
- In another case, a man suffered from infertility, so he agreed to artificial insemination in writing. The man was listed as the father on the child's birth certificate. After the couple divorced, the man filed a lawsuit to challenge paternity when the child's mother filed a claim for child support. The court rejected the man's claim, citing the fact that he knew that he was not his own and listed himself as the father on the birth certificate. The ex-wife's request for alimony was satisfied.
- The husband drew up and filed a lawsuit to challenge paternity. Before this, they received regular alimony payments for 6 years. The court ordered an examination, which showed that he is not the child's biological father. In the statement of claim, the man did not indicate that he demanded to stop alimony, but simply stopped paying it. In response, the wife filed a lawsuit because there was a stoppage in the flow of money. As a result, the ex-husband was recognized as having a debt that the man will be required to pay. Alimony must be paid before the order to cancel it.
Judicial practice shows that trials where paternity is contested and alimony is cancelled, in some cases, end positively for the plaintiff. But at the same time, it is very difficult to prove intentionality in the actions of the ex-wife. Courts often reject claims in which the mother of a child may be subject to criminal punishment for such an intentional act, because in this case the child is deprived of his sole supporter.
State duty and deadlines
The amount of the state duty is fixed in Art. 333.19 Tax Code of the Russian Federation. So, in accordance with clause 3, part 1, art. 333.19 of the Tax Code of the Russian Federation, when filing a claim to challenge paternity, the plaintiff undertakes to pay 300 rubles.
If we are talking about the return of alimony, then in accordance with clause 1, part 1, art. 333.19 of the Tax Code of the Russian Federation, the amount of the duty depends on the amount of money collected:
- Alimony up to 100,000 rubles – 800 rubles. + 3% of the amount exceeding RUB 20,000.
- Up to 200 thousand rubles – 3,200 rubles. + 2% of the size that is above 100,000 rubles.
- Up to 1 million rubles – 5,200 rubles. + 1% of the amount exceeding RUB 200,000.
- Anything more than 1 million rubles – 13,200 + 0.5% of the amount, more than 1 million rubles.
The maximum fee cannot exceed 60,000 rubles. If two demands are made within the framework of one claim: to challenge paternity and return of alimony, then the fee is summed up.
For your information
The duration of the proceedings is established by Art. 154 Code of Civil Procedure of the Russian Federation. If we are talking about district or city courts, then the process cannot last more than 2 months. If necessary, the period is extended for another 1 month by the decision of the chairman of the court.
