I’ll raise it myself: 5 reasons why mothers don’t file for child support in vain

The Petrovs divorced. The man had already prepared to pay alimony for his son, but for some reason his ex-wife did not file for it. Petrov himself is ready to allocate money to the child, but he does not know how to do it correctly - what if one fine day the bailiffs begin to demand alimony for the period when he was already paying?

We will tell you what a spouse should do if his ex-wife does not file for alimony. For advice on calculating alimony, amounts of payments and necessary documents, contact a professional family law lawyer.

Method 2 – bank account in the child’s name

The ex-husband can make payments to his wife’s card. But it is better to create a separate bank account in the child’s name and transfer money there.

In this case, the fact that the spouse provides for the son or daughter will be precisely proven. In addition, a sum will accumulate that can be spent on something significant.

This method is also good if the father is afraid that the mother will not spend the money she receives on the child. When opening an account, ask your bank how to limit withdrawals.

Verbal agreement

Some parents reach a verbal agreement on the amount that the ex-spouse will transfer monthly. This eliminates the additional hassle associated with legal proceedings. It should be understood that such an agreement, if it is not recorded on paper, is worth nothing in the eyes of the law.

Even if the parents have reached an agreement on the amount of monthly payments without the participation of the court, it is better to document the agreement notarially. Then he will have weight in the eyes of the law if cash flows suddenly stop. Moreover, the court will also collect the amount that the late payment party was supposed to pay under the contract. Oral agreements have no such force. But the most reliable thing is a court decision on collection.

Method 3 - voluntary alimony agreement

If your ex-spouse does not file for alimony, invite her to draw up a voluntary agreement to make payments. To complete the agreement you will need:

1. Agree on terms with your ex-wife: how much to pay, in what time frame, additional payments, etc.
2. Go to the notary with the child’s birth certificate, passports of both spouses and a document on the termination of the marriage.
3. Find out from the notary whether the conditions described in the agreement comply with the law. Remember that the prescribed payment should not be less than the one established by the court.
4. Wait for the document to be produced.
5. Apply signatures.
6. Pay for the notary's work.

After this, the spouse is obliged to pay alimony according to the approved procedure. If the agreement is violated, the ex-wife will go to the bailiffs. Then they will forcefully collect alimony.

On a note. If the wife does not go to court to legally obtain alimony, the child’s father cannot do this for her. The law does not provide for filing a claim against oneself.

Options for formalizing relationships

There are several ways to secure your father’s insurance if his wife does not file for alimony but wants to help his son or daughter.

Option 1

You don’t have to transfer money to your spouse, but buy something yourself for the benefit of the child. For example:

• pay expenses for attending kindergarten;
• buy food and clothing;
• pay for clubs and sections;
• participate in other expenses.

Naturally, you will need to save all receipts and receipts.

Option 2

If you still want to transfer money, then the best way is to open a bank account in the child’s name and transfer funds there. Firstly, the fact of making payments will be absolutely confirmed. Secondly, a certain amount will accumulate with which it will be possible to purchase something significant.

Option 3

If the ex-spouse did not file for alimony, then she may want to enter into a voluntary agreement to make payments. We need to discuss this issue with her.

To draw up an alimony agreement you need:

1. Reach agreement on all essential terms: amount of payments, terms, additional payments, conditions for termination of obligations, etc.
2. Appear before the notary with documents: about the birth of a child, about the termination of a marriage, with passports.
3. Discuss with the notary how all the conditions that you want to be recorded in the contract comply with the law. In particular, the amount of voluntary payments should not be less than what the child would receive under a court decision. You need to remember this.
4. Wait until the document is prepared.
5. Place your signatures on the document.
6. Pay the notary fee required by law.

From the moment the notary certifies the document - puts his stamp and signature on it, we can talk about the beginning of the agreement. Now it will no longer be possible to deviate from the terms of the agreement. If something happens, the wife can go with him to the bailiffs. The wife who submitted the agreement to the FSSP will have the right to receive forced payments.

Thus, on the one hand, concluding an alimony agreement is the most legal way to formalize an obligation. On the other hand, there are some disadvantages:

• firstly, as already noted, the spouse, if something goes wrong, can initiate enforcement proceedings;
• secondly, it is not a fact that she will even want to draw up an agreement on the payment of alimony, but each party must sign it.

What happens if the wife does not file for alimony?

If your ex-spouse refuses to sue for child benefits, you shouldn’t relax. According to Article 107 of the Family Code, a wife can apply for alimony at any time. In this case, alimony is awarded from the day the ex-wife applies to the court. If the application for payments occurred on October 20, then from that day the ex-husband begins to pay.

Alimony may also be demanded for previous periods if the wife tried to receive payments before filing a claim in court, but the husband avoided providing for the child. If you did pay, then you can try to prove it to the court - present checks, receipts, witnesses.

For your information. The wife has the right to demand alimony for the previous 3 years.

What is the complexity of the situation?

It would seem why any questions arise at all. If there is a desire to support a child, especially since such an obligation is enshrined in Art. 80 of the Family Code of the Russian Federation, then you just need to allocate funds and transfer them to your spouse so that she can manage them in the interests of her son or daughter.

Men are confused by the following points:

1. If you simply transfer funds for the needs of a minor, this will not be reflected anywhere. After some time, the spouse may declare that the father is bad, does not help the child, and has never allocated a ruble.
2. It is worth paying attention to the financial part of the issue. Funds in the interests of children are paid, according to the RF IC, from the moment the claim is filed in court. But there is an exception to this rule: if the wife proves that she wanted to receive payments from the child’s father and applied for payments, but the ex-husband refused, then the money can be received for 3 years prior to filing the application with the court. Simply put, the following situation may arise: the father of the child, if the ex-wife does not sue for alimony, begins to make voluntary payments. Next, the spouse goes to court and, if successful, recovers funds for the past three years. That is, the husband will have to pay twice for the same time period.

To prevent the situation described in paragraph 2 from happening, you need to correctly arrange voluntary transfers.

Why does the child's mother not want to file for child support?

There are several reasons why an ex-wife does not want to receive alimony. Here are the most common:

1. The mother of the child is controlled by a sense of pride - a reluctance to receive anything from her ex-husband. Here it is worth clarifying that alimony is intended to support a common child, who is not to blame for the fact that the parents separated. By law, both mother and father are required to support their children.
2. The woman believes that it is pointless to file a lawsuit. She is sure that the child's father will evade child support.

Legal payment of alimony benefits both parties. You can always contact a lawyer if you don’t want to deal with the issues yourself. Read our article about what threatens persistent alimony defaulters.

Sources:

Parents' child support obligations

In what cases will the court refuse to collect alimony for previous years?

Alimony is awarded from the moment you apply to the court. The period before going to court is not included in alimony obligations, except in cases where the ex-wife proves that she applied for alimony to her ex-husband. In this case, the burden of proving these facts lies with the ex-wife. Such evidence may be telegrams, SMS messages, letters with an offer to support the child and pay for his needs.

If the wife does not have this evidence or it is not convincing for the court, the ex-wife will be denied alimony for the previous 3 years. In addition, the basis for refusal to collect alimony “retrospectively” will be the documented incapacity of the spouse for work during the specified period. Lack of income due to illness will also be grounds for refusal.

Is it possible to change the terms of the agreement?

How to pay child support if it is not required

But transferring children to the mother’s card is not alimony. Even if the parents have maintained friendly relations and no one has any complaints about the money for the children, this is still not alimony. A verbal agreement means nothing. Judicial practice knows many examples when good relationships ended after years of litigation. And fathers, who had given money for their children for several years, were suddenly recognized as debtors through the courts and had to pay again.

What guarantees does the agreement provide?

How can you pay alimony? An agreement on payment of alimony is a document required by law. It must be written and certified by a notary. If the parents signed the agreement without a notary, then payments under it are not officially considered child support. Most likely, such a document will somehow help in court, but this is not a fact. The text can be drawn up by a notary. State duty - 200 rubles.

Also in the agreement, you can formalize a waiver of alimony in exchange for a one-time transfer of a large sum of money or registration of valuable property (usually real estate or a car) in the name of a minor (Article 104 of the RF IC). In fact, this is the only case when the refusal to receive alimony extends to the entire period of their payments. The parent’s obligations to the child are fulfilled in full in advance, and child support requirements will not be satisfied in the future.

Procedure and mechanisms for collecting alimony debt

The collection of alimony in the literal sense of the word is carried out within the framework of civil relations. But if you look at this issue more broadly, from the position of the alimony recipient, then the legal formulations and nuances do not matter. The main thing is to ensure that the debtor pays the required maintenance funds. With this approach, the mother’s ability to force her ex-husband to fulfill moral and family responsibilities is much wider.

Failure to pay child support may result in imprisonment

Guilty failure to pay child support, depending on the circumstances, constitutes an administrative offense or crime. Court proceedings and fines will bring pleasure to few people, and the opportunity to get a criminal record out of the blue can completely discourage a negligent father from neglecting the interests of the child. Practice shows that the initiation of a criminal case is a powerful incentive for the father to fully pay off his debts as soon as possible. In addition to punishments, the legislation provides for other specific measures of influence that can effectively “awaken” paternal feelings.

Administrative responsibility

An administrative offense (Article 5.35 of the Code of Administrative Offenses) occurs when the father fails to fulfill or improperly fulfills his obligations regarding:

• content;
• education;
• training;
• protection of the rights and interests of minors.

Evasion of alimony is clearly considered as a violation of children's rights and parental obligations to support the child.

Evasion of child support is a gross violation of the rights of the child

The offense is considered committed from the first day of delay. The powers to identify the offense in question, draw up a protocol and initiate an administrative case are vested in police officials, and specifically:

• head (deputy heads) of the department (department) of local police commissioners;
• head of the department of local police commissioners;
• senior district police commissioner;
• local police commissioner.

Members of commissions on affairs of minors and protection of their rights are vested with similar rights.

Referring the case to the competence of the police or commission does not mean that the mother should wait for information about the defaulter to reach the official. The reason for initiating the process will be a complaint submitted to her or an oral statement.

The protocol with explanations of the participants and other documents is transferred within 3 days after drawing up to the court, which considers the case within 2 months. There is no investigation into such cases, so all arguments and evidence must be presented directly to the judge.

The punishment for the offense in question is set as follows:

• warnings;
• a fine in the amount of 100 to 500 rubles.

For information.

A warning is a rather specific type of administrative punishment, expressed in official censure of the violator. Appointed for first-time offenses that do not have significant consequences. It is documented as an ordinary court decision; the operative part states approximately the following: find citizen N. guilty and sentence him to a warning.

The violator is considered to be brought to administrative responsibility on a general basis with all the ensuing consequences.

A relatively mild punishment was established due to the general nature of the article. The most significant violations by a parent of their duties will result in criminal penalties (Chapter 20 of the Criminal Code). In addition, “administrative punishment” for non-payment of alimony is a condition for criminal prosecution. A person is considered subject to punishment in an administrative sense for 1 year from the date the court decision comes into force, and it is during this period that criminal liability for repeated non-payment is possible.

During enforcement actions, the person liable for alimony may be brought to administrative responsibility under another article of the Administrative Code. The composition is formed when the alimony worker violates the norms and rules of enforcement proceedings (Article 17.14 of the Code of Administrative Offenses), expressed in:

• failure to comply with the legal requirements of the bailiff;
• providing false information about your rights to property;
• failure to report dismissal from work, a new place of work, study, place of receipt of a pension, or other income;
• failure to provide information about place of residence.

Identifies such violations and considers the FSSP; the participation of the alimony recipient in the initiation or proceedings is not required. Punishment for the offense is established in the form of a fine from 1000 to 2500 rubles.

Criminal liability

Failure by a parent to pay, without good reason, in violation of a court decision or a notarized agreement, funds for the maintenance of minor children, as well as disabled children who have reached the age of eighteen, if this act is committed repeatedly, is punishable by correctional labor for up to one year, or forced labor for the same period. , or arrest for a term of up to three months, or imprisonment for a term of up to one year.

Art. 157 of the Criminal Code of the Russian Federation

Failure by a parent to pay child support without good reason in violation of a court decision or agreement may be classified as a crime

The crime is expressed in the inaction of the alimony obligee. A prerequisite is the presence of a judicial act on the collection of alimony or an agreement between the alimony obligee and the alimony recipient, certified by a notary, and the article does not refer to the mandatory transfer of the document for execution. The obligation to pay arises not on the basis of a writ of execution or a bailiff's order, but on the basis of a decision (order) or agreement.

Repeatability manifests itself in the repeated failure to fulfill obligations to pay funds during the period when the alimony obligee is considered subject to administrative punishment for a similar act. Thus, a harmless warning for non-payment of alimony can turn into criminal prosecution, even leading to actual imprisonment.

Important!

There is some confusion online regarding the jurisdiction of alimony cases. For unknown reasons, cases under Art. 157 of the Criminal Code, the authors of many online articles on similar topics refer to the competence of either the prosecutor’s office or the investigative committee. In fact, since 2008, FSSP investigators have been dealing with alimony workers. Previously, indeed, such cases were the responsibility of police investigators.

Internet users are often misled about the elements of a crime. Many materials posted online and even dated 2021 speak of malicious evasion of payment as a sign of a crime. This wording existed until 2021. Since July 2021, the crime looks like what is reproduced verbatim above.

The FSSP investigator is a special official in the bailiff service system, performing functions that are not entirely typical for this structure. At the local level, the investigator reports to the senior bailiff, who simultaneously serves as the head of the investigation department. The activities of the FSSP interrogator are regulated by the Criminal Procedure Code in the same way as the activities of interrogators and investigators of the police or prosecutor's office.

The case of non-payment of alimony is under investigation by FSSP investigators

Inquiry is one of the forms of preliminary investigation. The inquiry is conducted in simple cases that do not require a full trial, within 30 days from the date of initiation of the case. General supervision of the proceedings is carried out by the prosecutor.

The grounds for initiating a criminal case are:

• reporting a crime;
• confession;
• a message about a committed or impending crime received from other sources;
• the prosecutor's decision to forward the relevant materials to the preliminary investigation body to resolve the issue of criminal prosecution.

The alimony recipient's application to the police or prosecutor's office will ultimately entail the transfer of materials on the consequences to the FSSP and the initiation of a case, but the transfer will take extra time. The issue of bringing the defaulter to criminal liability should be addressed directly to the FSSP and only on the condition that during the previous year the alimony obligee was punished for non-payment in an administrative manner. The initiator of criminal prosecution may be the bailiff conducting the proceedings.

Algorithm of actions

Thus, the following algorithm of actions is built to force the debtor to repay the debt outside of civil law mechanisms:

1. Collect alimony through the court or draw up an alimony agreement.
2. At the first delay, contact the local police officer or the commission for minors with a complaint against the child support obligee. If necessary, provide explanations and present available evidence.
3. Participate in the administrative court, support the position.
4. If there is a repeated delay within a year after the imposition of an administrative penalty, submit an application to the FSSP.
5. Participation in the inquiry, giving explanations, presenting available evidence.
6. Participation in a criminal court as a victim (there are opinions that the mother acts as a representative of the victim - the child, or simultaneously as a victim and a representative, but these are legal nuances of little importance for practical purposes).

All applications are written arbitrarily; there are no special requirements for content and formatting. Lawyers and investigators sometimes even advise not to resort to professional assistance in preparing such documents, since an independent presentation will better reflect the attitude and position of the applicant. However, some recommendations should be followed:

1. The header indicates the addressee: the district police officer, the commission or the FSSP, the full details of the applicant with address and telephone number are provided.
2. In the descriptive part of the applications, you should indicate the existing marital relationship or provide other evidence of paternity, provide the details of the alimony obligee (full name, address, telephone number), and inform about the period of delay.
3. It is enough to formulate the request part as follows: I ask you to check this fact. You should not point out that someone obligated to pay alimony has committed a crime or ask to bring him to criminal responsibility - liability for false denunciation is theoretically possible.
4. Copies of documents on marriage, divorce, birth of a child, paternity, and also, if available, evidence of delay, can be attached to the application. You must have the originals with you.

Criminal proceedings for non-payment of alimony may end in reconciliation of the parties if the debtor pays off the debt

In the vast majority of cases, the mother’s goal is not to sentence her ex-husband, but to receive the funds due. Alimony crimes are crimes of minor gravity, which allows the participants to reconcile at the stage of inquiry or trial. A prerequisite for reconciliation is making amends, that is, in our case, paying off the debt. If there is a real danger of “earning” the article, the debtor usually looks for an opportunity to solve the problem differently.

Judicial collection

Legal proceedings for the collection of debts and/or penalties for alimony do not have any special features and are carried out in accordance with the general procedure. A sample application for debt with the necessary attachments can be viewed here, for a penalty - here. If claims for debt and penalties are presented simultaneously, a joint application is prepared.

The amount of the claim is determined based on the amount of the principal debt and the penalty. The price determines where the claim should be filed and how much state duty must be paid. If the cost of the claim is up to 50,000 rubles, the case is considered by the magistrate court within 1 month, over 50,000 rubles - by the district court within 2 months. The state duty is determined depending on the cost of the claim as a percentage or as a flat amount plus interest:

• up to 20,000 rubles - 4 percent of the claim price, but not less than 400 rubles;
• from 20,001 rubles to 100,000 rubles - 800 rubles plus 3 percent of the amount exceeding 20,000 rubles;
• from 100,001 rubles to 200,000 rubles - 3,200 rubles plus 2 percent of the amount exceeding 100,000 rubles;
• from 200,001 rubles to 1,000,000 rubles - 5,200 rubles plus 1 percent of the amount exceeding 200,000 rubles;
• over 1,000,000 rubles - 13,200 rubles plus 0.5 percent of the amount exceeding 1,000,000 rubles, but not more than 60,000 rubles.

The state duty can be calculated using a convenient calculator. The claim is filed at the place of residence of the alimony obligee in person or by mail, but direct application is preferable. At the stage of accepting documents, the secretary will first check the correctness of execution and completeness of the submitted documents.

Let's look at some important aspects.

Debt calculation

If enforcement proceedings are being carried out against the alimony-obligated person, the amount of the debt is determined by the bailiff at the request of the alimony recipient. The calculation is drawn up in the form of a resolution.

Resolution on the calculation of alimony debt

In other cases, the amount of debt will have to be determined independently. It is easier to do this in the form of a table with a monthly breakdown.

If there is no information about the income of the alimony obligee, the necessary information should be requested in the statement of claim or in a separate petition submitted simultaneously with the claim. The state duty in such cases is paid in the amount of 300 rubles, with subsequent adjustment after the price of the claim is clarified.

From the moment the claim is filed until the decision is made, a certain amount of time passes, during which the debt increases. The alimony recipient has the right to clarify the requirements and recalculate the debt and penalty as of the day of the decision. It should be borne in mind that if the claim was filed with a magistrate, and as a result of clarification of the requirements, the price of the claim exceeds 50,000 rubles, the case will be transferred to the district court. This takes some time. The trial in the district court will begin all over again. To save time, you should not change jurisdiction if the difference in amounts is not significant for the recipient.

Calculation of penalties

The bailiff is not obliged to calculate the penalty, although information to the contrary is often found. The calculation is carried out for each month independently according to the formula:

Neust = Amount of alimony x days of delay x 0.5%.

Days of delay are counted from the first day of the following month. The results should be summarized in a table (for example, the calculation of the delay from 12/01/2017 to 01/17/2018 is given):

Proof

The evidence is documents confirming paternity, the initial act establishing the alimony obligation (decision, order or agreement), the bailiff's decision on the amount of debt and calculations. Confirmation of non-payment is the order of the bailiff and the very fact of the stated demand. The alimony payer has the responsibility to prove that payment was made. If he does not have such evidence, the decision is made in favor of the alimony recipient.

Sometimes it is necessary to prove that the payer is hiding his real income and standard of living in order to establish a fixed amount of debt or incorrectly calculate alimony, as well as complicate the collection procedure. This is especially convenient for entrepreneurs with taxation that does not reflect income and expenses. You can prove non-compliance by:

requesting documents confirming income directly from the employer;

requesting information about deductions from the tax office, pension fund;

obtaining information about property from the registry office, traffic police;

clarifying the conditions of business activity (where and for how much an office, retail outlets are rented, who the contractors are and for what amounts the contracts are concluded, etc.);

tracking information on social networks (photos from resorts and vacation spots are often published, travel impressions are described, etc.).

Photos from places of recreation and entertainment on social networks and personal impressions may prove to be evidence of concealment of the debtor’s real income

The main thing in such cases is to raise doubts in the court’s mind. If there are sufficient grounds to believe that the real situation is being concealed, the court itself will take measures to reveal the truth.

Execution and some features

The execution of the court decision is entrusted to the bailiffs. Requirements are satisfied at the expense of the debtor’s income and property in the following order (one by one if there are insufficient funds from the source of the previous priority):

1. From earnings or other alimony income.
2. At the expense of funds located in credit structures (banks, pawnshops, funds, etc.) or transferred to legal entities.
3. From any property belonging to the person liable for alimony, on which a penalty can be imposed.

When collecting debt, it is important to remember that it is not allowed to offset alimony claims with other counterclaims. Due to the fact that alimony obligations are inextricably linked with the personality of the child and the alimony recipient, assignment of claims for them is also not carried out. Excessively paid alimony is not refundable unless:

• the court decision to collect alimony was canceled in connection with the communication by the recipient of alimony of false information or in connection with the submission of false documents;
• the alimony payment agreement was declared invalid due to its conclusion under the influence of deception, threats or violence on the part of the alimony recipient;
• a court verdict established the fact of falsification of a court decision, agreement on the payment of alimony or a writ of execution, on the basis of which alimony was paid.

In these cases, collection is carried out from the alimony recipient (father or mother) who represented the interests of the child.

If you do not enter into an agreement and pay alimony voluntarily

For example, now you can pay 30 thousand rubles and are ready to indicate this amount in the agreement until the children reach adulthood.
If after five years your income decreases and your ex-spouse does not agree to review the alimony, you can reduce it through the court. Provide a certificate of salary, about the birth of other children - you can pay less. How to do this so that later it does not turn out that this is not alimony? I know of cases where fathers gave money for children, and the ex-wife then filed a lawsuit and recovered the money for several years. It was impossible to prove that he had been paying anything all this time.

Appointment of alimony

Is it necessary to apply for alimony during a divorce?

Refusal to file a claim for alimony during divorce proceedings does not deprive the right to do so later (Article 107 of the RF IC). If a woman’s position on this issue changes, she can at any time apply to the court with a request to issue a court order or writ of execution. There are no statutes of limitations in this case. The only limitation is that the right to receive alimony lasts until the child turns 18 years old. The court will accept this application and order payments.

Is it possible to collect alimony later?

Voluntary payment of alimony After a divorce, the parent with whom the children remain has the right to financial assistance from the ex-spouse. However, for various reasons, some people do not want to receive it. Therefore, they are interested in whether it is possible not to file for alimony during a divorce. What consequences will such a decision have and can it be changed in a few years?

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