Grounds for termination of enforcement proceedings for alimony

Legal consequences of revocation of a writ of execution

First of all, you need to focus on the fact that the revocation of the writ of execution is not a waiver of alimony! The court decision to collect them is still in force; no one can cancel the obligation to support a minor child. The revocation of a writ of execution is only a replacement for the forced collection of alimony according to an existing court decision - a voluntary one .

This means that funds for child support must be paid by the payer in the same amount, with the same frequency, from the same income as established by the court. More and more often is possible, less and less often is not.

Revocation of the writ of execution and termination of proceedings prevents further growth of debt. That is, if the payer does not keep his word of honor and does not voluntarily make alimony payments and repay the debt, the amount of debt that existed before the writ of execution was revoked will not increase.

At any time after the writ of execution is revoked, the recipient can again apply to the SSP with the same writ. From the date of filing the relevant application, the proceedings will be resumed. Current alimony payments and old debt will be forcibly collected under it.

Is it possible to recover alimony for the period during which the writ of execution was revoked? The law provides for this possibility. If the recipient manages to prove that during this period the money was not paid voluntarily, the bailiffs will calculate the debt for this period (but not more than 3 years). If funds were received from the payer, the collection of alimony will begin only from the moment the enforcement proceedings are resumed.

How to get a writ of execution?

What needs to be done to revoke a writ of execution?

1. Submit an application to the bailiff

It is necessary to contact the SSP department, which is in charge of the production. The bailiff who is handling the case of collecting funds for child support must submit an application to revoke the writ of execution.

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This application is drawn up in any form indicating the following data:

Name of the SSP department;
Data of the parties to the proceedings (collector and payer);
Grounds for collecting alimony (court decision or alimony agreement);
Request for revocation of the writ of execution indicating the reason;
Date of application;
Applicant's signature.

The application must be written in two copies, one of which remains with the bailiff, and the second with a mark of receipt is returned to the applicant.

2. Resolution of the bailiff

Within 5 working days after receiving the application from the claimant, an employee of the SSP department issues a decision to complete the paperwork and return the writ of execution to the claimant.

3. Receipt of the writ of execution

Receiving (in person or by mail) a writ of execution and a copy of the bailiff’s decision on the completion of the collection of funds for child support.

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Reasons for revoking a writ of execution

The list of reasons allowing a bailiff to suspend or terminate proceedings on the collection of regular payments without an application from the recipient of the money can be found in Art. 40 No. 229-FZ. To do this, the bailiff’s decision must indicate that the reasons for termination or interruption in the case were:

the death of the payer (in the case of alimony, continuity is not provided) or his unknown absence (during the period of searching for the person);
incapacity or long-term hospital treatment of the parent who was obliged to pay the funds;
declaring him bankrupt (only suspending the case until his solvency is restored);
participation in a military conflict (provided that the person is in the ranks of the Russian Army);
consideration of the debtor's claim for termination or revision of the amount of payments.

The claimant is not obliged to justify and document the reasons for filing an application to revoke a previously filed writ of execution, Art. 46 No. 229-FZ. It will be sufficient if the recipient indicates in his request that:

the former spouses agreed on a different method of fulfilling obligations (expensive property is transferred at a time, the parties themselves established a new amount of payments, an agreement was concluded between the parents on the repayment of obligations on a voluntary basis);
it was decided to resume family relationships and joint management (including further maintenance of children);
the child is handed over to be raised by the spouse who previously paid maintenance for him;
The review is made for personal reasons.

Important! The claimant may revoke the writ of execution for any reason, even if by law it cannot be recognized as valid.

How to revoke a writ of execution for alimony?

Alimony legal relations are formalized voluntarily and compulsorily. In both cases, if the payer fails to fulfill his obligations, the recipient has the right to turn to the bailiffs to enforce the instructions of the agreement or court decision. Sometimes parents reach an agreement, and then the question arises whether it is possible to take the writ of execution from the bailiffs or whether this is prohibited by law.

Family law establishes the right of the recipient of alimony to voluntarily terminate the collection of funds for child support by revoking the writ of execution. The claimant can at any time apply to the bailiff to resume proceedings if at the time of the application the recipient of alimony is under 18 years of age.

Is there still a debt for alimony?

If the recipient has submitted an application to revoke the IL, the payer remains obligated to repay the existing debt. However, if previously there was a penalty for the amount of the underpayment, then with the submission of the application the “counter” will stop.

According to an oral or written agreement concluded between the parties, payments can be made during certain periods when the alimony provider has the opportunity to repay the debt.

During the break, the parent living separately is not relieved of responsibility for the financial support of the child. If the mother or father raising a minor evades obligations, they can contact the bailiffs with an application to collect the debt. If the payer does not have evidence of providing assistance to children, the amount of alimony debt is determined, but for a period not exceeding 3 previous years.

Cash flow statements received from a financial institution can be provided as evidence of child support; receipts from the second spouse for receiving money for the child.

Evidence of financial support must be taken care of in advance. It is advisable that all agreements be secured by a notarized agreement. Otherwise, acquired material assets or cash transfers may be regarded as voluntary gifts and it will be difficult to prove their involvement in alimony payments.

Reasons for revoking a writ of execution for alimony

Revocation is a voluntary decision of the recipient of alimony. The decision to refuse should not be made due to any illegal actions of the alimony obligee.

Reasons for terminating enforcement proceedings for the collection of alimony:

Having achieved reconciliation between the spouses, they independently determined the obligations of each of them towards each other and the child. An agreement has been concluded to pay alimony and/or debt on a voluntary basis.
The recipient of alimony refuses funds to provide for the needs of the dependent, because he is independently able to provide comprehensive care for the child. In this case, the recipient’s earnings must be significantly higher than the earnings of the alimony obligee.
The negative psychological impact of receiving child support on the parent caring for the child. A feeling of dependence and fear when receiving money, in particular due to reproaches or humiliation by those obligated for alimony.
The alimony payer agrees to transfer real estate into the ownership of the child, the market value of which exceeds the alimony obligations for all years of validity of the enforcement documents.
The alimony obligee transfers to the alimony recipient a large amount of money to meet the needs of the child, if it is equal to or exceeds the hypothetical amount of alimony obligations for the entire period of collection.
The alimony payer works unofficially, but invites the recipient to transfer funds to support the child depending on his income. A corresponding application is drawn up addressed to the manager so that the company independently transfers the amount of payment established in the application to the alimony recipient.
Reaching an agreement on mutual claims. The recipient refuses enforcement proceedings for the forced collection of alimony, while the payer gives permission to take the child abroad or agrees to transfer the rights of the parent to third parties.
Other circumstances that do not contradict current legislation. Any circumstances contrary to the rules of law are grounds for the resumption of enforcement proceedings without the consent of the claimant. The initiator may be the guardianship and trusteeship authorities.

Everything about the revocation of the writ of execution for alimony

Let's start with the fact that the refusal of enforcement proceedings to collect alimony can be resumed in accordance with Part 3 of Art. 43 Federal Law No. 229 dated October 25, 2007. This means that no one can refuse alimony, since it is the direct responsibility of the parent to support their children until they reach adulthood.

Also, according to Part 4 of Art. 21 Federal Law No. 229, writs of execution received on the basis of court decisions can be again presented to the FSSP body for execution throughout the entire payment period, and within 3 years for the restoration of the missed deadline.

Download Federal Law dated October 2, 2007 N 229-FZ “On Enforcement Proceedings” (2.8 MiB, 393 hits)

Revocation occurs only at the request of the alimony recipient, but it is also worth considering that it is possible to suspend the collection procedure, which can occur at the initiative of the payer, bailiff or court. These norms are regulated by Art. 39 and Art. 40 Federal Law No. 229.

Quite often the suspension occurs by the bailiff carrying out the proceedings rather than by the court. Since the bailiff, when carrying out measures to collect n-th amounts from the debtor, is in direct contact with him, and therefore observes his lifestyle and ability to pay the debt.

Reasons for suspension may include:

limited legal capacity or incapacity of the payer;
performance by the debtor of any tasks during a state of emergency or martial law as part of any military formations created accordingly. with the legislation of the Russian Federation;
the payer is on a business trip (mandatory for a long period);
applying to the court for clarification of the points of the writ of execution (the alimony recipient, the payer, the bailiff can apply to the court).

A more complete list of reasons for suspending alimony collection proceedings can be found here and here.

How to collect a writ of execution from the bailiffs?

The alimony claimant must contact the FSSP department with an application to revoke the writ of execution. Documents are attached to the application and the basis for termination of enforcement proceedings is indicated.

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Contents and sample application for revocation of a writ of execution:

About the territorial body of the FSSP to which the applicant applies.
Personal data of each party.
The name of the document submitted to the bailiffs.
The start date of forced collection of alimony.
Grounds for termination of enforcement proceedings.
Agreements between the payer and the recipient of funds, if any.
Date of compilation.
Applications.

The procedure for terminating and resuming enforcement proceedings

Within one day from the moment the claimant applies, the bailiff must make a decision to satisfy or refuse the recipient’s application to revoke the writ of execution. If the requirements are satisfied, the enforcement proceedings are terminated or suspended, and the writ of execution is transferred to the recipient of the alimony.

Repeated presentation of a writ of execution for the collection of alimony is allowed throughout the entire validity period of the document. The period of validity of child support obligations ends when the child reaches the age of 18 years or in the period from 16 to 18 years of age upon emancipation. Forced collection of alimony during the period when the writ of execution was revoked at the initiative of the recipient of the funds is not allowed.

What to do if the writ of execution is revoked, but alimony is withheld?

The employer is fully responsible for any violations when withholding alimony from an employee. Collections must be carried out only on the basis of the original writ of execution, otherwise it is a violation of the rights of the alimony obligee.

In case of transfer of alimony by mistake, when the writ of execution is revoked, the accounting department of the enterprise must:

Provide explanations on retention to the employee of the organization. Sometimes alimony is transferred for a partial period before the document is revoked: not for 30 full days, but for 15, when the document was still in force.
Contact the recipient of alimony with a request for a refund of overpaid funds. Forced return of alimony is not permitted. If the recipient agrees, he can independently return the money to the payer, but he cannot be forced.
Pay the alimony-obligated employee the entire missing amount.

Forced return of alimony is possible only if a calculation error is detected. Counting error - an arithmetic error in the calculation and transfer of alimony to the recipient. In the case of alimony payments under a revoked writ of execution, the accounting error is not an accounting error, so the recipient has the right to refuse to return the money, and the employer is obliged to repay the wage arrears to the employee.

Consequences of revocation of a writ of execution

Revocation of a writ of execution is a temporary termination of enforcement proceedings. While the document is in the hands of the claimant, the bailiffs do not collect funds for the maintenance of children. Before presenting the IL again, the payer is not obliged to financially help the child and participate in providing for his needs.

If at the time of withdrawal of documents the payer had a debt, then it is retained in full. The claimant has the right to demand fulfillment of obligations for the past period even if alimony payments are terminated in the future.

How to get a writ of execution for alimony?

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Receiving maintenance from the parent who left the family is the right of any minor, however, there are cases when the second spouse, for one reason or another, does not want to forcibly collect alimony or does not want to accept help at all, voluntarily refusing to receive alimony payments.

There may be the following reasons for this:

the former spouses reached reconciliation and resumed de facto marital relations;
the mother refuses support due to psychological factors - she does not want to feel dependent on the second parent;
the father received unofficial income and will pay a large sum in one lump sum to the family he left behind, exceeding the alimony from wages;
an agreement has been concluded between the spouses regarding mutual actions - the mother refuses to support the child, and the father transfers some property to her, or agrees to issue a notarial permit for the child and mother to travel abroad;
other situations permitted by law.

How to get a writ of execution for alimony?

Since the purpose of the funds paid by the second parent is solely to ensure a decent standard of living and development of the child, the law formally does not allow even voluntary refusal of financial assistance, considering it nothing other than a violation of the interests of the children. Therefore, any receipt or other document drawn up as confirmation of refusal to receive money does not have any legal significance and does not deprive the claimant of the opportunity to again demand payment of alimony.

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However, in fact, refusal of maintenance is still possible and is formalized through the withdrawal of the writ of execution for alimony by the claimant.

Is it possible to withdraw a writ of execution?

If a court decision on the issue of receiving alimony was made, after which the enforcement procedure began, the recipient of alimony, who does not want further transfer, must contact the relevant bailiff department with a statement expressing his desire to refuse further receipt of the amounts.

Article 46 of the law “On Enforcement Proceedings” describes in detail the procedure for returning a writ of execution to the claimant and names the end of the proceedings as its consequence.

PLEASE NOTE: two different concepts in enforcement proceedings should not be confused - termination and termination.

Termination occurs either due to the occurrence of unconditional and statutory grounds (death of the parties, for example) either by the bailiff or on the basis of an appeal from one of the parties. In the application for termination, it is necessary not only to state your desire to terminate the proceedings, but also to justify it, citing specific arguments, and also to attach documents confirming what has been said to the application when submitting it. Such a court decision will forever deprive the collecting parent of the right to re-collect alimony, making it possible to restore it only in court and only subject to a significant change in the situation.

Example: In relation to A., the collection of alimony was stopped in connection with the adoption of a minor, S., the recipient of alimony. Subsequently, in connection with the cancellation of the adoption, S.’s mother again filed a lawsuit to collect alimony from A.

The end of the proceedings is carried out by contacting the bailiffs with a statement containing only a demand to return the sheet and a reference to the above-mentioned provisions of the law. Thus, the revocation of the writ of execution DOES NOT prevent the forced collection of alimony in the future if the agreement reached with the second parent is violated.

What is a writ of execution for alimony

A writ of execution for alimony is an official document with legal force, on the basis of which the plaintiff has the opportunity to initiate a procedure for the forced collection of money for a minor child through the FSSP.

As practice shows, parents who are obliged to pay child support by court decision quite often try to evade this obligation. To have an effective influence on the debtor, the plaintiff must seek help from the bailiffs. In this case, you will definitely need to first obtain a writ of execution.

REFERENCE. IL for alimony can be transferred not only to the FSSP. This document can also be taken to the organization where the debtor works. In this case, appropriate deductions will be made from the latter’s salary.