Reducing child support upon the birth of a second child

The leader of advisory and legal forums remains the question of how to reduce the amount of alimony in connection with the birth of a second child. I would like to give the most extended answer to this.

Unfortunately, the topic related to divorce and the nuances regarding child support payments does not lose popularity. Marriages break up, and parents eventually enter into new relationships in which children are born together. Automatically, the parent, in most cases this is the father, must support both the children from the previous marriage and the current one. Material wealth is significantly reduced due to increased expenses, and hence the need arises to reduce the amount of alimony paid. The question of how to reduce child support for the first child at the birth of the second is regulated by law under Art. No. 119 IC of Russia.

General information

In such situations, the mothers of the first child feel indignant due to the fact that the amount received earlier may be less, and it is unknown how much. Many women are incompetent in this matter and show zealous dissatisfaction, the ex-husband did not change jobs, the salary was not reduced, why is alimony less? Of course, they can be understood, because the interests of minors suffer. Fathers who pay alimony very rarely take a direct part in teaching, raising or spending joint leisure time with the child, “dry” alimony and that’s it. Despite this, the situation is ambiguous and is regulated by law. The laws stipulate that the interests of not only the first child, but also the father himself and the second child in particular must be taken into account. This applies to moments when the second child also receives child support payments. Fair redistribution of material resources between children born in different families is regulated by legislative acts.

Options for reducing alimony

1. Reducing the amount of alimony in the presence of shared standards.

Let's consider a way to reduce child support from a first marriage with shared alimony. As you know, Article No. 81 of the RF IC regulates shared alimony payments. For the first child, 1/4 of the payer’s total income is provided. For the second child, this part will be 1/3, respectively, for two children it is 1/6 for each. The calculations are elementary in nature and are based on the fact of a consistent decrease depending on the number of children to whom alimony is paid. Preference is not given to any one child in particular, but child support payments are distributed proportionally. Even in court proceedings, there is a 98% guarantee that a reduction will be decided based on the relevant facts and laws. Although it is not excluded that decisions may leave the issue without consideration and changes.

Another important factor influencing the reduction of alimony in connection with the birth of a second child is the presence (provision) of a writ of execution for the collection of alimony for the first. In principle, the Family Code spells out absolutely all the responsibilities of a parent (in case of divorce) regarding the maintenance of their children, and the payer is obliged to provide financial support regardless of the presence of a court decision. In the courts, this is explained by the fact that documentary evidence of these actions on the part of the parent is necessary. In fact, in order to reduce child support for the first child at the birth of the second, and for the second at the birth of the third, and so on, you need to provide documentary arguments. Depending on the number of children and the alimony paid for them, the number of trials is determined. To obtain a writ of execution for a second (third) child you need:

• have a writ of execution or a court decision;
• order from the court;
• an agreement made between parents regarding child support payments.

Although a court order is not entirely correct in these situations, its execution, nevertheless, can take a maximum of 5 days. As for the voluntary agreement, it is equal in legal force to a court decision. During legal proceedings, it is perceived critically, because it was drawn up on a voluntary basis, and when considering the issue of reducing alimony, the father’s reputation looks tarnished.

2. How to reduce child support for the first child when paying in a fixed amount.

The situation is regulated by Art. No. 83 of the IC of Russia, taking into account the need to preserve children’s primary standard of living. From a procedural point of view, the whole process is practically the same. The wife and mother of the second child files a claim for alimony, proving the deterioration of the debtor’s financial situation, a change in family composition, etc. Next, a claim is filed against the mother of the first child in order to reduce child support. This is a more serious task than with equity payments and the results may be unpredictable. Important evidentiary factors are:

• individual calculations of the parties;
• evidence base of the reality of the calculations performed.

It is within the competence of the court to establish the correctness of the study and assessment of the level of income of both parties, taking into account the present needs for alimony, the amount of which is indicated in the claims. Typically, the proceedings concern an insignificant level of alimony, which is close to the subsistence level, and sometimes less. Strong arguments on the part of the debtor-alimony payer may be:

• the total amount of contributions for two children is more than half of the income, which is unacceptable by law;
• the remaining amount in the payer’s hands is less than the subsistence minimum;
• violation of children's rights due to uneven distribution of funds.

Sometimes, even with all the legality and validity of the arguments, the court may ignore them or be skeptical. To a greater extent, the attention of court representatives is focused on the submitted documents from places of official employment and data on legalized income. On what basis is the balance determined to establish specific amounts for payments.

3. How to reduce alimony if there is an agreement.

The cardinal difference between a court decision and an alimony agreement is its voluntary origin, since its opposite is forced. In accordance with legislative norms, changes to the agreement between the parties are allowed by drawing up a new sample or making additions to the old one.

As life practice shows, it is very rare that the mother of a child voluntarily goes to a notary to officially certify the fact of a reduction in alimony upon the birth of a second child in another family. Therefore, in such a case, consideration of the issue of termination of the agreement through judicial proceedings is provided. The very birth of a second child is a compelling fact for making appropriate changes.

Sample application for reduction of alimony

A statement of claim to reduce the amount of alimony is filed with the district court at the place of residence of the defendant - the recipient of alimony. The statement of claim is accompanied by a copy of it, a receipt of the state duty, a court order or a court decision on the collection of alimony subject to reduction. As well as documents confirming a change in financial or marital status, the presence of another basis for changing the size.

A sample statement of claim to reduce the amount of alimony has been drawn up taking into account the latest changes in family law.

IN _______________________

(name of district (city) court)

Plaintiff: ________________________ (full full name, residential address) Defendant: ______________________ (full full name, residential address, date and place of birth,

place of work (if known), one of the identifiers,

if it is known to the plaintiff - SNILS, INN, passport)

Cost of claim __________

(the amount by which alimony is reduced per year)

Statement of claim to reduce the amount of alimony

Based on the court order of the magistrate of court district No.____ dated "___"_________ ___ in case No.______, alimony for the (minor(s)) child(ren) _________ (full name, date of birth of the child) is being collected from me in favor of the defendant(s) (children) in the amount of _______ (specify shares or the amount of a fixed sum of money) wages.

Since the decision No. ____ was made, circumstances have changed, namely: _________ (indicate the circumstances influencing the reduction in the amount of alimony).

Based on the above, guided by Article 119 of the Family Code of the Russian Federation, Articles 131-132 of the Civil Procedure Code of the Russian Federation,

Ask:

1. Reduce the amount of alimony collected from me in favor of the defendant(s) by decision of the magistrate of court district No. ____ dated "___"_________ ____ in case No. ____ for the maintenance of the child (children) _________ (full name, date of birth of the child (children) to _______ share of salary monthly.

List of documents attached to the application:

1. Notice of sending (delivering) a copy of the claim and documents to the defendant
2. Document confirming payment of state duty
3. A copy of the court order of the magistrate No.____ dated “___”_________ ____ (or court decision)
4. Certificate 2-NDFL about the plaintiff’s salary (declaration, service agreements, etc.)
5. Evidence supporting the grounds for reducing the amount of alimony

Date of application “___”_________ ____ Signature of the plaintiff _______

statements:

Statement of claim to reduce the amount of alimony

Statement of claim to reduce the amount of alimony from 1/4 to 1/6

Other methods for reducing alimony payments

There are other ways to reduce alimony payments upon the birth of a second child in a second family.

1. The defendant has the right to prove that the alimony paid to him for the first child is not spent in accordance with its intended purpose. According to this, a special application is submitted to the guardianship and guardianship authorities, on the basis of which they are obliged to conduct an appropriate check in order to clarify this fact.
2. The defendant can transfer the money to a specific bank account, which children can use when they reach adulthood.
3. There is a documented fact of disability of a family member.
4. Obtaining disability by the defendant-alimony payer.
5. Identification and diagnosis associated with a serious illness and, as a fact, the inability to receive official income (documentary evidence).
6. The first child reaches adulthood.
7. The defendant has other dependent family members (disabled parents, etc.).
8. The child receives full support from state funds.

How much can a child from his first marriage receive alimony?

In accordance with the RF IC, parents are obliged to support all their children. They are obliged to pay child support to those children with whom they do not live together or do not participate in their upbringing. Payments are assigned as a share or percentage of the payer’s earnings or in a constant amount, which should not be less than the minimum established by law.

The amount of alimony for one child is influenced not only by the number of children in the former family and the father’s earnings, but also by the number of children born to him in a remarriage. Those. The amount of deductions for a child born in a first marriage is influenced by how many children under age the parent has in general, and not by the order of marriage in which they were born or whether they were born out of wedlock. According to the law, alimony is required to be withheld from all income of the payer for one child - 25%, for two - 33%, for three or more - 50%.

If there is a child from a second marriage to whom the parent is obliged to pay alimony by law, then together with the child from the first marriage he has two children, and 33% will be collected from his earnings for them, in the case of alimony being calculated as a percentage.

Expert commentary

Kamensky Yuri

Lawyer

The total amount of alimony payments is divided equally among all the payer’s children, regardless of the marriage into which they were born. This is what the law established. The child from the first marriage will be assigned half of the percentage amount of alimony due to two children, i.e. 16.6% of father's income.

Child support calculator

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Rules for filing claims

A statement of this kind requires the following information:

• personal data of the plaintiff and defendant;
• a brief summary of the issue;
• contact details of both persons (addresses, telephone numbers, email addresses);
• information necessary to consider a specific situation.

A claim to reduce the amount of alimony can be filed by a person who is married or who is officially divorced at the time of filing.

The application is submitted to the judicial authorities located directly at the place of registration of the person who is entrusted with the obligation to pay alimony. If for some reason this is not possible, then the filing on behalf of the plaintiff can be made to the court at the place of his own residence. This can be done either in person or by mail (regular, or better yet, registered mail).

There is a simplified form created by the legislation of the Russian Federation for the collection of alimony payments using a court order. The person concerned must apply to the local judicial authorities to obtain such an order against the person obligated to make such payments. The review of such a document is much faster and the response to it is also faster. If the defendant receives any objections, the process of considering the court order will be canceled, and the final outcome of the case will be decided within the framework of the lawsuit.

Alimony for an older child, paid by agreement

When the payer has children in different marriages, alimony payments rarely occur in the free will of the parties. But such situations also happen. The parent, being in a trusting relationship with the first family, can draw up an Agreement with the child’s mother in writing and in good faith pay the amount that was mutually agreed upon by the parties to the agreement. The document cannot contain an amount of alimony less than the minimum amount required by law.

Agreement on payment of alimony (sample)

Important! Alimony may also be tied to the payer's earnings and amount to a legally established percentage of his salary. The agreement is drawn up in writing. Without a notary's certificate, the document has no legal significance.

If a parent has children in a new marriage, then by mutual agreement with the first spouse, the Agreement can be adjusted to reduce payments to the eldest child. True, in real life the recipient rarely agrees to a reduction in the amount of payments. Therefore, the issue also has to be resolved in court. To do this, you need to apply there with a claim to reduce the amount of alimony assigned by agreement and submit to the court:

• a copy of the Agreement of the parties;
• certificate of earnings from the place of work;
• birth certificates of other children;
• a certificate from the place of work of the new spouse to assess the budget of the second family;
• Proof of the former family's financial well-being will also be required.

In court, he must prove the impossibility of paying alimony in the amount indicated in the Agreement. It is important for the judge what amount of alimony the plaintiff demands after reducing its size and whether this will not contradict the preservation of the child’s needs, worsening his financial situation. At the same time, he must also take into account the need to provide for the newly born child.

Temporal order of reduction

In accordance with Article 209 of the Code of Civil Procedure of the Russian Federation, Part 3, the reduction in the amount of alimony is made from the moment the court decision takes legal force. It is sometimes confusing that this process begins when the claim itself is filed. This is incorrect; this formulation concerns the collection of alimony, and not the change in its size. In fact, the mother of the first child can independently delay the period for reducing alimony by not filing an appeal.

In these cases there are some nuances:

1. The birth of a third child cannot influence the process of reducing child support payments for the previous two. The calculation is elementary in nature - exactly half of the total income is allocated to three children and 1/6 is distributed to each;
2. The birth of a fourth or subsequent children will change the amount of payments. Alimony can be either reduced or redistributed in the following order:

• for 4 children (50% of total income) – 12.5% ​​for each child;
• for 5 children (50% of income) – 10%.

Since exactly half of the earnings is considered the maximum extreme amount, all deductions are based on this indicator.

Alimony for the birth of second and subsequent children in another marriage

As noted, alimony due by law is distributed equally among all children of the payer, regardless of marriage. The amount of child support for each child depends on how many children their father has. Let's consider the situation, what will be the amount of alimony due to the eldest child if his father has two children from his second marriage. The payer will have three children in total under such circumstances.

Expert commentary

Kireev Maxim

Lawyer

According to the law, if there are three or more children, a citizen is charged 50% of his earnings. Each child will receive 16.6% of their income. That is, when the payer has a second child in a new family, the eldest child will receive the same amount of payments as if the father had one child in another family. The father himself will feel the difference because half of his earnings will now be deducted from him. And this is the maximum amount of deduction for alimony that is allowed by law. Only in exceptional situations can the amount of alimony contributions be increased to 70% of the payer’s earnings.

The situation regarding the amount of alimony for the payer’s children will change upon the birth of his subsequent children. Since the maximum deduction from his earnings will still be 50% of his earnings, this means that this amount will have to be divided equally not among three children, but among four, five and the next children. It turns out that with the birth of each subsequent child to a parent, payments to previous children are reduced. This also applies to the very first child.

Paying taxes when filing a claim

Almost any legal proceedings involve the payment of certain types of tax. In this situation, this is a state duty. There is no clear indicator, and its size depends on various factors:

• the real cost of a claim to reduce alimony;
• the price of a claim of a property nature (not subject to assessment);
• the specific value of the claim based on a non-property issue.

The issue is regulated by Article No. 333 (19) of the Tax Code of the Russian Federation, and calculations are carried out on an individual basis based on the current situation.

Submitting an application

With the advent of a child in the current marriage, the amount of alimony payments for the first minor will not automatically decrease. You need to go to the world court. Official marriage is not a prerequisite. An application can be submitted if the payer is recognized as the father, which is confirmed by an entry in the birth certificate.

Required documents

The plaintiff must provide evidence of changes that have occurred in his life that affect his ability to pay child support. Required:

• plaintiff's passport;
• a copy of the youngest child’s birth certificate;
• certificate of income of the plaintiff (copy of the work record book for an unemployed person);
• certificate of registration of the second marriage (if available);
• checks and receipts confirming the increase in expenses for the maintenance of children from a second marriage;
• receipts confirming treatment expenses (if available);
• evidence of the plaintiff’s dependents;
• evidence of a decrease in family income due to the wife going on maternity leave;
• document confirming payment of the state duty.

It is also advisable to attach copies of birth certificates of older children.

Drawing up an application for a reduction in child support due to the birth of a third child

The procedure for drawing up a statement of claim is described in the Civil Procedure Code of the Russian Federation (CCP RF). There is no exact form of address. The plaintiff must submit an application for a reduction in child support upon the birth of a third child, including in the text of the appeal:

• full name of the judicial authority;
• Full name and contact information of the recipient and payer of alimony (registration address, telephone number);
• passport details and place of residence of the plaintiff;
• Full name of the child for whom child support payments are made;
• the number of the court decision on the basis of which previously assigned alimony is deducted, and the amount of payments;
• the reasons that prompted the plaintiff to file an application;
• references to Articles 81 and 119 of the RF IC;
• a list of documents attached as confirmation of the plaintiff’s words;
• signature and date of writing the application.

A sample application is shown in the figure. Sample application for a reduction in child support for the birth of a third child in a second marriage.

The application must be submitted in triplicate. On one, the secretary will mark acceptance and return it to the plaintiff. The second copy will be sent to the defendant, and the third copy will be given to the judge.

State duty

When submitting an application to reduce child support for three children from different marriages, the plaintiff must attach a receipt for payment of the state fee. The payment amount is not fixed. The calculation rules are established by Article 333.19 of the Tax Code of the Russian Federation (clause 1.1). The amount of state duty is determined based on the assessment of claims according to Table 2.

Table 2. Amount of state duty.

To determine the amount of state duty paid, you need to add up the calculated and fixed parts. The assessment of the claim is the amount of payments for a period of no more than 12 months for which the plaintiff wishes to reduce alimony.

Which court is considering

If a third child is born, you must submit an application for a reduction in child support to the judicial authority that determined the previous child support payments. Usually this is a magistrate's court located at the place of residence of the alimony payer.

Terms and procedure for consideration of the application

The period for consideration of claims is established by Article 154 of the Civil Code of the Russian Federation. The magistrate considers requests for the possibility of reducing alimony if a third child is born in a second family, within 1 month.

The parties can appeal the verdict within a month, after which the court decision will come into force.

Examples of refusal to reduce the amount of alimony

Every situation has its pros and cons. Even in this case, there are options when child support for the first child may not be reduced due to the birth of the second. The court may not satisfy the claim in the following cases:

• the defendant-alimony payer has a source of income that significantly exceeds the approved subsistence level;
• During the trial, evidence was provided confirming the fact that the debtor lives together with his new wife, their official marriage and the existence of a joint budget;
• the court will establish that the defendant has an official income that will allow him to provide for both the first and second child without the need to revise alimony downwards.

If such facts exist, then the official recipient of alimony has the right to submit the necessary documents, which include:

• original statement of claim with evidence base;
• copies of marriage and divorce certificates, notarized;
• notarized copies of children's birth certificates;
• documents confirming the fact of a change in the financial situation of the alimony payer;
• copies of writs of execution for the collection of child support payments;
• a copy of the court order itself;
• if available, a copy of a voluntary agreement on child support payments for minor children;
• necessary certificates from medical institutions about the defendant’s health status (if necessary);
• original certificates of official sources of income, certified by the management of enterprises/organizations;
• extracts from the house register and copies of personal accounts (all notarized).

It is worth noting that the child’s mother has the legal right to challenge the application for a reduction in child support based on compelling reasons and evidence. Depending on the volume of evidence, the judicial authorities will either make a new decision or refuse in favor of the previously issued one.

Reasons to reduce the amount of alimony

You can submit a petition to the court to reduce the amount of deductions for alimony obligations not only after the birth of the second (and each subsequent baby), but also under other circumstances. The main ones include:

• the emergence of dependents requiring financial support from the alimony provider (these may be close relatives, spouses and children), namely minors and incapacitated relatives;
• a violation of the health status of the citizen obligated to pay alimony, which must be accompanied by the assignment of a disability group (together with the preferential status of a disabled person, the person loses the opportunity to work fully, and the costs of treatment and maintaining health only increase, which excludes the possibility of continuing payments as before);
• minor children begin to earn money on their own (depending on the type of employment, children in Russia can work as early as 10 years old, if this does not interfere with the learning process);
• registration of a child - a recipient of alimony - as an individual entrepreneur, but only if the amount of income from such activities compensates for the basic needs of the child;
• receiving income from personal property (for example, a child owns real estate that is rented out on the basis of a commercial lease agreement);
• a significant increase in the income of the child support provider (when the required 25% of the profit completely covers all items of expenses for the child, and there is still enough money left to pay for the needs of his legal representative);
• transfer of the child to full state support, for example, education in boarding schools and closed sports schools.

This is not a complete list of requirements, therefore, if the alimony provider believes that he needs a reduction in the amount of deductions, then you can safely prepare a statement of claim (for this it is better to use a sample in order to avoid legal errors and ambiguous phrases).

Reducing child support for the first child upon the birth of the second child is a common practice. It is not necessary that the parents of the second child live together or are officially married. It is enough to display information about the father on the baby’s birth certificate.