Alimony obligations of family members: concepts, types and features

An alimony obligation is the foundation on which the legal relationship is built between the obligated person and the person who has the right to demand monetary payments from him. In other words, the absence of an alimony obligation leads to the fact that the alimony holder legally owes nothing to the alimony recipient.

The legal regulation of alimony obligations is enshrined in the Family Code, namely in Section 5. This document is a single codified act in Russia, which contains all the rules relating to alimony. Based on the text of the Family Code, one can identify several types of alimony obligations, classify them, and find out in what cases an obligation may arise or be terminated.

Definition and mechanism of occurrence of alimony obligations

Definition

The word “alimony” has ancient Roman origins, as evidenced by the translation of this word from Latin. There are 2 known translation options:

1. Content.
2. Nutrition.

In ancient Rome, the word “alimentum” was the gratuitous provision of monetary amounts from one family member to another family member as maintenance.

In the modern world, the meaning of this word has remained virtually unchanged. As in ancient times, the alimony obligation refers to the relationship between 2 family members or close relatives, one of whom undertakes to pay money or transfer property for the maintenance of the second party to the obligation, and the second party to the obligation has the right to demand the provision of this maintenance.

How do they arise?

The legal scheme of any alimony obligation includes 3 key features, without which its occurrence is impossible:

1. Kinship or family ties must not exist in words, but be certified by documents. In the Russian Federation, the responsibility to register civil status rests with the state civil registry office. Information about civil status is recorded in special register books, and citizens receive certificates. Let's give an example: the birth certificate of a minor certifies several facts: the baby's name with surname and patronymic, the date he was born, information about his parents. Thus, this certificate is written evidence of the relationship between a minor child and his parents.
2. Certain categories of alimony recipients have grounds unique to them that allow them to demand maintenance from the alimony provider. For example, in the case of child support obligations, this is a minor; in the case of alimony obligations of spouses, former spouses, parents, incapacity for work (disability or reaching retirement age) or neediness (income below the subsistence level; need for funds for treatment). In the case of a wife or ex-wife, pregnancy or raising a common child who is under 3 years old.
3. Documentation of alimony obligations within the framework of an agreement certified by a notary, or an act (order or decision) issued by the court.

Signs

Classification of alimony obligations

Types of alimony obligations

Alimony obligations are financial support provided to disabled relatives who cannot support themselves.

According to the law in force on the territory of the Russian Federation, the following types of obligations are provided:

1. The most common type of such relationship is the obligation of parents to raise and support their child until he reaches adulthood.
2. Children with parents who are in financial need due to incapacity are also required to provide them with financial assistance.
3. Spouses, whether they live together or are divorced, should also help each other if the need arises.
4. If certain conditions arise, these relationships can arise not only between parents and their children, but also between other relatives.

Legal features of alimony collection

The law allows only 2 ways to formalize alimony legal relations between the alimony provider and the alimony recipient:

1. Alimony agreement.
2. Judgment or court order.

An agreement is a written document, the terms of which the parties to the obligation can negotiate themselves, without the participation of third parties. This fact provides greater freedom when discussing the following issues:

• How will child support be paid? Participants in the agreement can choose any period of time for payments: 1 month, 2 weeks, 1 year, 1 quarter, in a lump sum.
• How will child support be paid? In this case, the law also provides complete freedom. This could be a fixed amount, a transfer of property assets, a percentage of income, or the purchase of property necessary for the alimony recipient.
• How will the alimony holder be held responsible if he allows a child support debt to arise? The parties can agree on any types of liability independently, for example, on the amount of the penalty, on the transfer of pledged items into the ownership of the recipient of alimony in the event of late payments, on the amount of a one-time fine for late payment.
• How long is the agreement for? For example, the child was 7 years old at the time of the agreement between the parents. The parents decided that they would enter into an agreement for 5 years. Termination of the agreement in this case does not at all mean the termination of the child support obligation, since the child at this time will only be 12 years old, but not 18 years old. If the new agreement is not certified by a notary, then one of the parents can obtain payment of child support through the court.

As can be understood from what was written above, the lack of notarization means the automatic invalidity of the agreement. To certify the drawn up agreement, you can contact any notary. The main thing is that it is registered with the Ministry of Justice and the Chamber of Notaries. To draw up the text of the agreement, you need to contact lawyers specializing in family law, or use the samples below:

1. for a minor child.
2. to your spouse or ex-wife.

It is also worth noting some features that are unique to an alimony agreement:

• One party cannot refuse to fulfill the agreement without obtaining the consent of the other party.
• Termination or modification of the rules specified in the agreement can only occur with a notary. If the parties conflict with each other and cannot agree on an agreement, then the conflict is resolved by the court.
• Alimony agreement = writ of execution. This means that, firstly, if a child support debt arises, there is no need to go to court, and, secondly, it can immediately be presented to the bailiffs with a requirement to take all possible measures to obtain payments from the alimony provider.
• Minor children are protected by law, which sets a minimum limit for their provision. Parents in the agreement cannot set the amount of payments below this limit, namely, 25% of income for 1 minor; 33% of income for 2 minors; 50% of income for 3 minors.

Below we will describe the features inherent in the judicial collection of alimony.

For minor children

The payer of child support is the parent living separately from the child. His obligation to provide for the minor is unconditional and does not depend on the level of income, marital status, debt load, or the presence of obligations to other people.

Minor children are a special group of alimony recipients for whom alimony can be calculated in 2 different ways, described in the table below.

Also, it is necessary to take into account the following rule established in the Family Code: if for some reason the person who has the right to collect alimony did not file a corresponding claim in court, then it is possible to demand alimony only for the past 3 years from the date of filing the statement of claim . At the same time, the court must provide evidence that the plaintiff actually tried to obtain alimony from the defendant, for example, sent him a registered letter with a proposal to enter into an alimony agreement, or wrote by email demanding alimony, or received an order for alimony from the magistrate, but the defendant canceled it .

Further, keep in mind that as of August 2021, new rules regarding the amount of the penalty and the procedure for collecting it will apply. Firstly, the penalty has been reduced from 0.5% to 0.1 percent per day for the amount of debt. Secondly, the court received the right to reduce the penalty if it is excessively high (usually more than 50% of the debt amount).

Termination of alimony obligation, where the recipient of alimony is a minor, is possible on 3 grounds:

1. The child support worker or minor child has died.
2. The minor was adopted by another person, and the child support provider was deprived of his rights as a parent.
3. The minor has reached the age of 18, or entered into marriage before the age of 18, or was emancipated before the age of 18, i.e. acquired full legal capacity with the permission of parents and guardianship institutions due to registration of a business with the Federal Tax Service or obtaining an official job.

For a mother with a child under 3 years old

In this case, the alimony recipient is the wife or ex-wife, and the alimony payer is the husband or ex-husband. The purpose of providing alimony is to financially support a woman who is in a vulnerable position due to the fact that she is responsible for caring for a small child and cannot earn a living.

The features of the alimony obligation in this situation are that:

1. The husband or ex-husband must have sufficient funds, i.e. he needs to earn such an amount of money that after paying alimony he will have funds in the amount of 1 adult subsistence level.
2. Alimony can only be provided in a fixed amount, paid monthly.
3. The court is obliged to take into account the financial security of the alimony recipient and his marital status (the presence of other dependents who are financially dependent on the alimony payer) when calculating the amount due to the alimony recipient.
4. The obligation is unconditional, i.e. cannot be canceled until the child turns 3 years old.

For disabled spouses

The table below describes when a spouse is obligated to support another spouse and when a former spouse is obligated to support another ex-spouse.

For children over 18 years old

Parents have an unconditional obligation to provide financially for their adult children if:

1. An adult child has become disabled for any reason and has lost all or part of his or her ability to work. Accordingly, he lost the opportunity to provide for himself.
2. Along with his inability to work, he is recognized by the court as a person in need of help. The need may be not only the need for money to live, but also the need to care for an adult child, look after him or provide him with medical procedures.

As the Family Code states, child support for adult children can only be assigned in a fixed amount, which must be paid every month. In this case, the judge is obliged to take into account the financial situation of each party (what sources of income they have; the amount of earnings per month; what property they own) and marital status (the presence of dependents who are financially dependent on the alimony payer).

Alimony obligations in family law and their changes

The main signs characterizing the presence of alimony obligations are the following:

1. They have a personal character.
2. Organized free of charge.
3. They are long lasting.
4. The reasons for their occurrence are fixed at the level of current laws.

Procedure for paying alimony

Determined in the following ways:

• on the basis of mutual agreements, documented;
• by a court decision, in the event that one of the parties evades fulfilling its obligations.

Withholding and collection of alimony

The following documents can serve as the basis for this type of action:

• an agreement concluded between relatives by mutual consent;
• writ of execution issued by the court.

The presence of such documents gives the right to the following actions, after submitting them to the accounting department of the enterprise in which the alimony payer works:

1. Taxes collected by the state by law are withheld from wages.
2. The amount required to make payments is subtracted from the amount received.
3. The remaining amount is given to the payer, and the cash benefit, within the next three days, is transferred to the person in need.

Termination of alimony payments

If payments are made on the basis of a mutual agreement, their termination occurs after:

• the occurrence of the conditions described in the document;
• death of the payer or payee;
• expiration of the agreement.

Termination of payments ordered by court decision occurs in the following cases:

1. Death of the payer of the benefit or its recipient.
2. The child reaches adulthood.
3. The child to whom the cash payments were made was adopted by other parents.
4. The spouse who was declared incompetent and receiving benefits entered into marriage with another citizen.
5. The court restored the recipient's incapacity.

Sample statement of claim for alimony collection

The statement of claim or application for a court order must indicate:

1. The name of the judicial authority to which the application will be submitted.
2. Information about the plaintiff and defendant, namely: their full name, residential addresses, telephone numbers (if known to the applicant), email addresses (at the request of the applicant).
3. Description of the circumstances of the claim and a description of the facts of violation by the defendant of the rights of the plaintiff.
4. Listing of evidence substantiating the applicant's claims.
5. Calculation of the amount of alimony to be paid monthly (optional item).
6. Links to articles of law with which the applicant substantiates his words.
7. List of claims.
8. List of applications submitted simultaneously with the application.
9. Applicant's signature.
10. Date of writing the application.

A sample application for a court order, which you can use to write your own application, is here. Keep in mind that court orders are issued only for child support for minor children, when it is collected as a share of earnings.

A sample statement of claim, in which the plaintiff demands alimony for a minor, can be downloaded from here, an application for alimony for a spouse - here, for an ex-wife - here, for alimony for a parent - here.

Collection of alimony from a foreigner

If alimony needs to be collected from a foreign citizen, a number of nuances arise. It is worth noting that if a foreigner does not live on the territory of the Russian Federation, then alimony obligations in legal relations with the participation of foreign citizens are determined and regulated by the legislation of the state in which the obligated person lives.

However, citizenship of another country does not relieve parents from the obligation to support their children. The easiest way in this case would be to draw up an agreement. If this is impossible, you will have to go to a Russian court. But, having received a writ of execution, the court decision will need to be legalized in the defendant’s country of residence. The Russian Bailiff Service does not have the authority to collect alimony in the territory of another state.

Therefore, it will be necessary to file a petition with the judicial authority of the country of which the defendant is a citizen.

Find out more about collecting alimony from a foreign citizen.

Time limit for consideration of the application and adoption of a court decision

For cases dealt with by writ, the following deadlines are established:

1. 5 days from the date of filing the application for the judge to make a decision on whether the documents and information submitted by the applicant are sufficient to issue a court order or not.
2. As a rule, within 1 week from the date of issuance of the order, the judge sends a copy of it to the defendant. The defendant has 10 days from the date of receipt of the letter with the order to file an objection to it.
3. If the defendant misses the deadline for filing objections, the order takes effect.

For cases dealt with through claims proceedings, the following deadlines are established:

1. The total review period is 1 month. It is counted from the day the application is filed until the day the decision is announced at the court hearing.
2. The decision on whether to accept the claim into its own proceedings is decided by the judge within a maximum of 5 days, counting from the date of filing the documents.
3. The time to appeal the decision is 1 month, counted from the day the court decision is made in its final form.

Judicial practice on issues related to alimony

When making a decision, the courts take into account all the individual circumstances of the case, as well as court practice. These include:

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• ;
• ;
• .

The types of litigation regarding alimony obligations and the procedure for resolving them are very diverse and depend on the individual circumstances of the case.

The most common cases are related to the failure of one of the spouses to fulfill parental responsibilities for the maintenance of their child or children. However, many people know their legal rights and seek protection in court. Thus, in recent years, judicial practice regarding alimony obligations of spouses and former spouses has expanded significantly.

In the modern world, family relationships are often complicated by a foreign element, as a result of which citizens have many questions and problems. Thus, you have to delve not only into domestic legislation, but also understand international legal acts.

In such cases, you often have to seek help from experienced lawyers who can help sort out conflicting issues of alimony obligations in private international law (private international law).

List of documents for filing a claim for alimony collection

Termination of alimony payments

In accordance with family law, alimony obligations are terminated depending on the grounds on which they arose - during court proceedings or upon voluntary acceptance of agreements.

If payments are made in accordance with a court decision, they can only be terminated for the following reasons:

• the child is already 18 years old or he received full legal capacity before his 18th birthday (such emancipation is possible in situations where he himself works under an employment contract or is engaged in business with the consent of his parents, or has entered into an official marriage and created his own family);
• the child was adopted, the responsibility to care for him passed to the adoptive parents, and accordingly, such responsibility is removed from the parents by origin;
• the ex-husband or wife, who needs financial support from their spouse due to their disability, has found a new family - they have formalized the marriage, because after this fact, property obligations will pass to the new spouse;
• the recipient of alimony has ceased to be in need and has fully restored his ability to work, which is confirmed in court and by the results of re-examination to revise the assigned disability group;
• death of any of the parties - the alimony recipient or the recipient of funds.

The grounds for termination of alimony obligations when they arise within the framework of a mutual agreement of the parties - a voluntary agreement - include the following cases:

• the death of any of the parties to the agreement;
• expiration of this agreement;
• other reasons as may be set out in this document.

All other reasons for removing the obligation to provide financial assistance to family members are insignificant and are often not accepted by the court as a reason to stop collecting alimony or arrears. Details in the article child support after adulthood

Legal proceedings with the filing of a claim by the payer of alimony to terminate obligations on these grounds are required in two situations: upon cessation of need and return to working capacity, as well as upon adoption of a minor child - recipient of funds by new parents. In other cases, there is no need to separately apply to the courts to terminate such alimony relationships (Articles 364 and 366 of the Code of Civil Procedure of the Russian Federation). If enforcement proceedings are terminated due to the cancellation of alimony, it cannot be resumed; all measures taken by the bailiffs to withhold and collect funds are cancelled.

Everyone should know the general provisions on alimony obligations, since the system of family relations is multifaceted and, if necessary, you need to defend your rights by resorting to the provisions of the relevant regulations.

Arbitrage practice

First example

The case was heard at court site No. 26 of the Sretensky district of the Chita region in March 2012.

The demand for the recovery of alimony from the defendant in his favor until the child turns 3 years old, and for a small child until he reaches 18 years old, was filed by the ex-wife. She motivated her demand for maintenance by the fact that the child is less than 3 years old, and therefore she has no income, since she is on maternity leave and caring for him.

In addition, the plaintiff reported at the court hearing that she does not live with the defendant in the same territory and supports the child on her own. At the meeting, the ex-wife was forced to partially renounce her demands, namely, to refuse to collect alimony benefits for herself, because the ex-husband did not have a job. In this regard, he could not have a sufficient level of income to allow him to support his ex-wife.

For his part, the defendant said that he agreed to pay child support. Since the defendant accepted this demand of the second party, the court did not continue the proceedings. The court ordered the ex-husband to provide financially for his minor child and to allocate 1/4 of his earnings to provide for him.

Second example

The case was heard at court site No. 312 of the Ostankino judicial district of Moscow in April 2014.

The claim was filed by a former spouse who became disabled during the marriage. As she indicated in the application, she is not in a new marriage, is a disabled person of group 2 and needs financial support, because her pension is 14,000 rubles, and expenses for utilities, food, medicine and clothing are approximately 23,000 rubles. monthly. In addition, she is obliged to financially help her elderly parents. For this reason, she needs alimony in the amount of 10,410 rubles. monthly, as well as alimony for the past period, starting from February 2012.

In court, the plaintiff said that her ex-husband knew that she had a serious illness even before the marriage and promised to help, but after the divorce he stopped doing so. The defendant stated that he helped the plaintiff’s family during the marriage, and the ex-wife’s pension is above the subsistence level, so she cannot be considered needy.

In addition, the ex-wife has a son who is over 18 years old, which means he must help his mother. The defendant, in turn, has obligations to his pregnant wife and son, whom he must provide for. Also, the defendant has obligations to banks and does not have any valuable property (personal apartment, jewelry or car).

The court determined that the plaintiff cannot demand alimony payments from the defendant for the past period, because she cannot prove that she previously tried to obtain alimony from her ex-husband. In this case, the court is obliged to take into account the fact that the ex-husband is obliged to support a new family (a pregnant wife and a young son), as well as the fact that the plaintiff has an adult child who does not want to help her. Therefore, the court decided that the defendant would pay only 2,500 rubles. every month in favor of the plaintiff.

Withholding and collection of alimony

If there is a writ of execution, which is considered to be an agreement of the parties or a court decision, the recipient can at any time contact the relevant federal bailiff service with it.

The validity period of these executive documents is three years, regardless of when the recipient uses them, he will be able to receive money only for the last 36 months, not earlier. If necessary and there are good reasons, for example, the payer’s evasion from fulfilling his duties or violations (actions or inactions) on the part of FSSP employees, the statute of limitations can be extended and earlier debts on payments can be claimed.

Immediately upon receipt of this document, the bailiffs will begin the process of enforcement proceedings and will seize all available sources of income and property of the payer. They are obliged to send an executive order to the defendant’s employer company, on the basis of which regular deductions and deductions will be made in favor of the recipient of the funds. The accounting department of the organization must take all measures to comply with the law and implement these orders. Every month, when calculating wages, an authorized employee is obliged to carry out the appropriate calculations and make deductions from the payroll, and then send them to the specified details. Problems can begin if the debtor does not have a place of official employment and a “white” salary.

When collecting a debt, the bailiffs proceed in accordance with all the laws of enforcement proceedings - if necessary, the debtor’s property is seized, and restrictions on movement outside the country begin to apply. Bailiffs also carry out other measures to collect amounts of overdue debt, including from alimony workers.

During the period of searching for the debtor, the state pays a monthly child benefit, but then he will be required to reimburse 50% of these contributions - this part of the payments is added to the total amount of debt. We should not forget about indexation - a constant increase in the amount of social payments following changes in the economic situation in the country. Additionally, those who evade fulfilling their duties face other fines, penalties and forfeits, legal costs, and even the addition of the costs of searching for the debtor to the debt. Therefore, you will still have to pay much more than was originally planned by the court decision.