Reducing the amount of alimony upon the birth of a third child in a second family

Author of the article: Lina Smirnova Last modified: January 2021 9211

Parents are obliged to support their own children under any circumstances, including if they do not live with them. If children are born in different marriages, they have the same rights to financial support from a common parent, regardless of the marriage in which they appeared. Child support from a first marriage depends only on the total number of children born to their father and is subject to the general rules of calculation established by law.

Let's consider how the amount of alimony is determined for children born in different marriages, how it is distributed and how it can be reduced for the first child when children are born in another marriage.

General legal provisions on alimony:

• the sequence of the process of receiving payments to ensure normal living conditions for children is determined by Chapters 13, 16 and 17 of the RF IC, as well as other norms;
• Legislative acts establish payment at the birth of a child in any marriage in the appropriate parts of the payer’s total income in accordance with Art. 81 RF IC;
• If the payer’s earnings are unstable, it is appropriate to pay benefits in a fixed amount - the established amount in monetary terms in accordance with Art. 83 RF IC.

Alimony payments for the second, first child, etc. father or mother receive by transfer to a card or account, as well as by mail. If the benefit is issued in person, the payer is recommended to take a receipt from the person who cares for the child.

Judicial collection of alimony

If an agreement on the payment of alimony has not been concluded, one of the parents may go to court to collect alimony from the other (Article 106 of the RF IC). The provisions of Article 108 specify the period during which the funds due to the child can be recovered. Based on paragraph 1 of this article, alimony can be collected even before the court decision comes into force.

When determining the amount of the penalty, the court is guided by the provisions of Article 81 of the RF IC, as well as the financial and marital status of the parties. The maximum period for which alimony can be collected from a parent of a minor is three years.

Alimony for a child from a second marriage

The amount of the benefit depends on the total number of children. This is not affected by the number of official or civil marriages.

Of all the parent’s income, a quarter is calculated for one child in the family, a third for two, and half for the birth of a third child. By law, each of the children must receive an equal share of the payments.

Alimony for a child from a second marriage can be changed by agreement of the parties, but cannot be less than the limit established by the court, most often the subsistence level in accordance with paragraph 2 of Art. 103 SK:

“The amount of alimony paid under an agreement on the payment of alimony

1. The amount of alimony established under an agreement on the payment of alimony for minor children cannot be lower than the amount of alimony that they could receive if alimony was collected in court.”

If the court orders alimony in a fixed amount, the previous usual standard of living of the children must be taken into account in accordance with Art. 83 SK:

“Collection of alimony for minor children in a fixed amount

1. The amount of a fixed sum of money is determined by the court based on the maximum possible preservation of the child’s previous level of support, taking into account the financial and marital status of the parties and other noteworthy circumstances.”

The amount of alimony at the birth of a third child can be changed taking into account whether the paying spouse has other family members to support him without taking into account children.

The maximum amount of alimony payments that can be recovered from the paying parent is 70% of the total possible income for minor children of the total number of marriages.

The minimum amount of payments for a child from a second marriage will be regulated by the number of children the payer has.

How much will payments be reduced?

In the case where there is a redistribution of alimony between children, it is clear that the total amount of payments will not decrease. But 1/3 of the income will remain in the family, and 1/6 will be transferred to the ex-wife.

If the reduction is not related to the emergence of child support obligations for the 2nd and 3rd children, then the court reduces the retained share at its discretion, based on the actual circumstances of the case. Therefore, it would be incorrect to name the specific value of the new share. Moreover, no two cases are absolutely identical. And there are not many similar ones. In one case, the payer receives a high income, and the recipient struggles to make ends meet. In another case, the payer does not have enough money to live. In the third, there are some persons, not children, who also have to be supported by one side or another. Everything is very individual.

Duration of payment of child support at the birth of a child

Alimony payments must be transferred to the mother's account (most often the children remain with her) with a certain frequency. The regularity of the amount of alimony at the birth of a child is determined by the court or a voluntary agreement of the parties.

The payer of the benefit in a fixed amount is also obliged to make payments with the established frequency. Payments for the third child from the second marriage or alimony for the birth of the first child in the third are transferred to the mother’s account until the date set by the court.

If child support for the third child in the second family is paid by agreement of both parties, then the parents can set the date.

If the payer delays payment of child support in the second family, then penalties will be applied to him - 0.5% of the amount of payments for each day withholding payments.

Alimony upon adoption

If a parent was obligated to pay child support to one or several children born in the first marriage, it is necessary to continue making payments even after it is dissolved and the parent enters into a new union. Even depriving a parent of his rights to raise a child will not terminate the obligation to support him. However, the fact of deprivation of parental rights excludes the possibility in the future to receive alimony from your child or require him to provide any other assistance (Articles 87-88 of the RF IC).

If children born in a first marriage are adopted by another citizen, the responsibility to support them passes to him. In this regard, parents who previously bore obligations and had to support the child will be released from such obligations.

Voluntary child benefit

Concluding a voluntary agreement between former spouses regarding payments for the maintenance of common children is the best option for a transaction between citizens during first and subsequent marriages (second, third, etc.).

The alimony agreement is concluded by the parents and notarized. A document that is in writing will have the same force as a court decision. The document will specify the timing of receipt of benefits, the amount, conditions of delay, if any, penalties and other ways to regulate payments for child support.

If disagreements arise regarding individual points, you can go to court to resolve the dispute legally.

Submitting a claim to court

Print out four copies of the claim. Sign each copy. Make copies of documents (attachments) in triplicate and attach them to three copies of the claim. Attach a receipt with paid state duty to one of these three copies. The claim can be brought to court in person or sent by registered mail.

If you carry it in person, the court office will put a stamp on your copy (without attachments) indicating receipt of the claim, and three copies with attachments will remain in the office. If you send by registered mail, then send only three copies with attachments. You leave the fourth one without applications for yourself.

If you brought the claim in person, then after 5 days you can start calling the court and find out if a court hearing has been scheduled. You can find the telephone number of the assistant judge on the court website.

Receiving payments for children by court decision

Legislative authorities recommend applying to special bodies to establish payments for children if the spouses cannot amicably resolve this issue.

A former parent who currently supports children together can seek help from the court to assign child support payments at any time, for example, after the birth of a third child. The custodial parent has the right to file an application with the court both while married and after a divorce.

If a formal application is submitted, the paying spouse is obligated to pay benefits from the date of its filing. Recovery is possible for the time before the filing of the claim, but not more than 3 years, if the spouses were no longer living together at that time.

Voluntary agreement

The possibility of amicably reaching an agreement and drawing up an agreement between parents is provided for in Article 86 of the RF IC. Such a document must reflect the amount of child support that the parent is required to pay, the frequency in which payments must be received, as well as other conditions. The form in which it should be determined by Art. 100 IC RF:

• For this type of agreement, only written form is acceptable;
• the absence of notarization of the agreement leads to its invalidity;
• The legislator has endowed the agreement with all the functions of a writ of execution, which is issued to the other party after a decision has been made to collect child support from one of the parents.

If the parent who intends to sign the agreement does not have full legal capacity, he has the opportunity to sign such a document with the help of his representative, subject to his consent (Article 99 of the RF IC). The amount of alimony may differ from that established by Article 81 of the RF IC only in a larger direction.

Reduction of alimony for the third child from the second union of spouses

Is it possible to reduce child support for a third child or is it impossible to change the amount? If the payer’s situation has significantly worsened, then the court may revise alimony for children from a second marriage or even change the amount for all children, even if this is contrary to the interests of the children. Is the birth of a child in a second family a reason to reduce child support payments?

Reasons for regulating child support may be as follows:

• the birth of a second child already in the third union (even more children);
• appearance of dependents (sick relatives);
• deterioration of the payer’s health or financial condition.

At the birth of a third child already in the 3rd or 4th union, both registered and civil, provided that the child has an entry in the line about the paying parent, the amount of alimony can be reduced. Adjustment of payments is also possible as a result of the appearance in the payer’s family of a dependent who is financially dependent on him, or a serious illness of loved ones that requires expensive treatment.

Alimony for a third child or for children of a second marriage is regulated by court orders. However, the amount established by the settlement agreement can be changed by agreement of the spouses. At the same time, the notary makes appropriate changes to the new document.

A child support reduction does not occur automatically upon the birth of a third child in a third marriage. To reduce child support in the first and second marriage, it is not at all necessary for the third wife to file a lawsuit to receive benefits. However, the payer will still have to apply to the judicial authorities. Only by proving the reasons for the deterioration of his situation, be it the birth of a third child in subsequent marriages or a serious illness, will the paying spouse be able to qualify for a reduction in alimony payments.

In addition, it is possible to regulate the amount of the benefit if the payer proves that the guardian is spending the money transferred by him to provide for joint children for other purposes. To do this, the payer must write an application to the guardianship authorities, who are obliged to come to the place where the child lives and check where and how the monthly payments of the ex-spouse are spent. There is also the possibility of accumulating a sum of money for children - monthly payments that will be accumulated in a special personal account for the children, for example, to pay child support for their studies in the future. Children can withdraw money from such an account only when they reach the age of majority.

Results

1. Is it possible to reduce payments in the interests of minors if a third child is born? Yes, the legislator has developed mechanisms that give the right to do this. The main thing is to implement them correctly.
2. How to reduce alimony? The Family Code of the Russian Federation clearly states that reduction is carried out only in court and only if there are compelling reasons: deterioration of financial condition, some changes in the family. Less significant circumstances cannot be stated as grounds for reducing payments of funds in the interests of a minor.
3. How much can payments be reduced? It is impossible to speak about this clearly. It all depends on the circumstances of a particular case. In some cases, the judge may order minimum payments if the alimony provider is doing really poorly. In some situations, a request to reduce payments will be denied.

Each real situation must be considered separately. Therefore, before taking any steps, it is recommended to consult with a child support lawyer who can correctly identify all legally significant circumstances of the case, analyze them and develop a course of action leading to success. You can deal with the issue yourself, but with the help of a lawyer it is much easier and ultimately cheaper.

What documents are needed to initiate a court case?

Basic documents for going to court:

• statement (claim);
• a copy of the document on the second marriage and divorce, notarized;
• a copy of documents on the birth of children under the age of majority, copies must also be certified by a notary;
• documentary evidence that the defendant’s financial condition has changed;
• a copy of the writ of execution obliging the father to make payments to the children;
• a copy of the court order;
• a copy of the agreement on the payment of alimony for children who have not reached the age of majority;
• if necessary, a certificate from the hospital about the defendant’s health status;
• certificate 2-NDFL for the previous 6 months;
• copy of personal account at place of residence
• extract from the house register.

Let us remind you that all copies of documents submitted to the court must be certified by a notary.

Payment deadlines

According to the general provision, a child has the right to child support until he reaches adulthood. If, for example, a child is a disabled person of group 1 or 2, then financial support is assigned to him for life.

Therefore, the payment period in each specific case will be a different amount of time.

The question remains controversial whether the payer is obliged to support a child who is already 18 years old during the period of his studies at a university. As a rule, courts do not satisfy such demands of plaintiffs. The only grounds for paying alimony to an adult child can be his incapacity and need.

The period of alimony payment may end before reaching adulthood. If the payer applies to the court to cancel alimony and there is a legal basis for this, the government agency has the right to remove this obligation from him.

The basis for canceling alimony may be, for example, challenging paternity or refusal of it, or adoption of another child.

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Is it possible to challenge a court decision?

If the ex-wife is not satisfied with the court's decision for any reason, she has the right to challenge it. In this case, the court will take into account the change in the financial status of not only the wife, but also the husband. If the ex-wife still decides to challenge the court’s decision, she will need to prepare the following documents:

• child's birth document;
• marriage document;
• certificates of income from both the husband and wife;
• the first court decision to assign monthly alimony;
• a document stating that the ex-wife is on maternity leave;
• certificate of family composition;
• other documents that could confirm a change in financial situation.

It should be noted that the court decision will be made taking into account the interests of both children.

When will a reduction be denied?

The birth of a second child does not always guarantee a reduction in the amount of payments. The court will refuse if:

• will consider the alimony payer to be sufficiently wealthy to support all his children in equal conditions: he has a high salary, his wife works despite the birth of a baby, etc.;
• the level of income and expenses of the payer and recipient is too different: for example, the payer’s new family belongs to middle-income families, and the first child lives below the poverty line;
• the legal representative of the alimony recipient will find more weighty arguments in his defense than the arguments of the payer.