Trud-Center

Regulatory features of calculating alimony for a child from a second marriage

The Family Code of the Russian Federation establishes that a parent must provide children from any marriage with financial assistance by deducting a percentage of their wages.
If there is no regular income, it is permissible to pay child support in hard cash (a fixed amount). As for the amount of alimony, it does not depend on the serial number of the marriage. The amount of payments is determined based on the number of children under age the parent has.

In accordance with Art. 81 of the Family Code of the Russian Federation, the father undertakes to give a third of his income for the maintenance of two children. In this case, the amount received is divided into equal shares between the child in the second marriage and the first.

True, there are several nuances that can change the size of payments. It is worth paying attention to the following:

When signing a notarial agreement between the mother of the second child and his father, it is permissible to change the amount of payments (the amount cannot be less than that established by law).
The judicial authority can increase or decrease the amount of alimony payments for each of the children, in accordance with the financial status of the potential payer.
The maximum deduction from wages can be 70%.
The minimum amount of financial assistance for a second child from another marriage depends on the total number of dependent children of the payer.

Voluntary financial assistance for a child from a second marriage

If an individual has a child who is already receiving alimony, a child born in another marriage also has the right to receive financial assistance. The mother can enter into a notarial agreement with the father (even without a divorce), as a result of which financial support will be paid voluntarily.

Amount of alimony

How much material resources to allocate from your total income depends, first of all, on the specifics of providing alimony payments. If this happens voluntarily, then the amount will be one (usually the one approved by the parents themselves), and if it is forced, then completely different (established by a judge on the basis of articles of the Family Code, as well as some Federal laws).

Payments according to agreement

If a parent, who pays child support for two minor children, wants to provide payments for them on the basis of an agreement, then he has the right to determine their amount by mutual agreement with the second parent.

Thus, if he is already paying money under such an agreement for one child, and the amount fixed in this document completely suits him, then all that remains is to draw up an agreement on the provision of alimony payments for the second child. After this, the parent will simply have to fulfill his obligations under both agreements.

An agreement to provide alimony maintenance has the following advantages:

Gives freedom of action to the payer and recipient. When going to court, the writ of execution, which will be issued to individuals as a regulation for the procedure for calculating alimony benefits, will be drawn up clearly according to the rules dictated by law. And when concluding an agreement, the parties themselves can determine the conditions, amount, form, as well as other nuances regarding payments.
Refers to confidential documents. Since when concluding an alimony agreement it is implied that the payer voluntarily agreed to fulfill all the obligations enshrined in this document, no case is opened in court, and as a result, the employer is not asked to collect monetary compensation for the children from his employee’s wages. Thus, when concluding an agreement, an individual can easily hide the fact that he is the payer of alimony.
Quick and easy to complete. If parents want to resolve a conflict regarding the maintenance of their children as quickly as possible, then the best option would be to draw up a child support agreement. They will not need to collect a huge number of documents, appear at a court hearing and wait a long time for a decision to be made. You just need to draw up an agreement, sign it and have it certified by a notary. In addition, if there is something wrong in the agreement, the notary will help correct this defect.

Important! Be careful about the amount of child support you specify in the contract. The minimum amount of these payments should be exactly the same as the amount of alimony that would be established through the court. As for the maximum size, there are no restrictions.

Alimony payments by order

If the relationship between the father and mother of the children is extremely difficult, preventing them from coming to an agreement on alimony, or one of the parents is completely indifferent to this issue, then it is necessary to seek help from the court. This is exactly what the first part of Article 81 of the Family Code of the Russian Federation says. The same article also notes several rules regarding the amount of alimony:

For two children, 1/3 of the salary is paid. If an individual has two minor children to whom he has child support obligations, then he is obliged to give them a third (or 33%) of all types of his earnings. However, if he currently pays alimony for one child (as a rule, this is a quarter of the profit or 25%), then in the case of payment of benefits for a new child, the amount of the previous alimony will be slightly reduced. The first child will no longer receive 25%, but 16.5%, since a total of 33% must be provided for both children. The second child, in turn, also needs to transfer 16.5%.
Adjustment of the amount of benefits and regularity of payment. By law, children must receive financial assistance from the mother/father who has child support obligations to them every month. As for the amount of benefits, 33% of income is not a strictly fixed figure; in the case of an extremely difficult financial or family situation of the recipient or payer, it can be adjusted.

For example, if a father already pays alimony for his five-year-old daughter, which is collected from him according to a writ of execution in the amount of one quarter of the monthly profit, then when deducting maintenance from his income for another minor child, he has the right to reduce their amount by nine percent. To do this, you will need to write an application to reduce the amount of alimony payments in connection with the start of providing financial support for the second child and send it to the magistrate’s court.

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Collection of alimony in court

A legal or ex-wife whose child’s rights were violated has the right to file a claim to collect alimony from her husband. Alimony for a second child from another marriage will be paid, even if the man has a child already receiving payments. Most often, the court orders the father to pay 1/6 (about 16%) of the total income for each of the children.

It is worth noting that if the second spouse wants to file a claim without dissolving the marriage, she will need to collect a certain package of documents. This documentation includes:

Photocopy of the applicant's passport.
A photocopy of the birth certificate of the child shared with the potential payer.
A photocopy of the marriage certificate.
Certificate of profitability of both parties.
An extract indicating the composition of the family.
Original receipt for payment of state duty.

These documents complement the statement of claim for the collection of alimony, which a child from another marriage will have to receive. All documentation is transferred to the local judicial authority, where the case will be heard. When determining the amount of payments, the court will necessarily take into account the payment of financial assistance to the first child.

Ways to solve the problem

To formalize alimony legal relations for a minor in a second marriage, you must:

enter into an agreement on voluntary payments;
obtain a court decision.

And here the following questions arise:

Is it possible to collect alimony for a second child if his parents do not intend to divorce?
Is it possible to file not a claim for alimony, but an application for a court order?

Alimony in marriage

The RF IC does not contain a condition that money for the maintenance of a minor is paid only if the parents’ marriage is dissolved. On the contrary, it is indicated that it is possible to establish the procedure for maintaining a son or daughter by a parent both in the case when mom and dad are divorced, and in the case when the parents have not officially dissolved the marriage.

Many simply do not want to deal with bureaucratic issues that take a lot of time, continuing to remain official husband and wife, although, in fact, the family has not existed for a long time. But this should not in any way affect the child’s child support rights.

That is, the mother can at any time apply for child support to the court and recover the necessary financial resources.

Claim or order?

A court order is issued if:

the demands are indisputable;
the interests of third parties are not affected.

In the situation described, when money is recovered from a minor born in a second marriage, the interests of third parties are affected. Who exactly? A child from another marriage. There is a very high probability that the amount of payments to meet his needs will be reduced.

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Therefore, in the situation described, we cannot talk about issuing a court order.

The second wife needs to fill out a sample statement of claim and file a claim in court.

The form for this document can be found at the courthouse, usually in the reception area. You can also download it on the Internet.

After the answers to the above two questions have been found, it is necessary to figure out how best to act and what to ask the court for.

Is it permissible to reduce child support from the first union?

When a man has a second child in a new marriage, the father’s financial situation can change significantly. If a man’s salary does not allow him to continue to provide financial assistance to the first child in the previously established amount, the amount will be changed.

That is, alimony for a child from another marriage is a strong argument for recalculating payments to the first one (in such a way as not to infringe on the rights of any of the children).

You can reduce alimony by filing a claim with the court located at the place of residence of the person making alimony payments. To conduct a trial, it will be necessary to provide the judicial authority with the following documentation:

Directly a statement of claim written by the payer.
A photocopy of the marriage certificate and its annulment, certified by a notary.
Photocopies of birth certificates of children from both unions, certified by a notary.
Documentation indicating a change in financial situation, due to which alimony cannot be paid in the same amount.
A photocopy of the writ of execution on the collection of child support or a copy of the notarial alimony agreement.
Certificate of personal income tax (2-NDFL) for the last six months, indicating the amount of profitability, source and amount of deductions.
An extract from the place of residence with a photocopy of the personal account, certified by a notary inscription.

It is worth understanding that the first child will receive a smaller percentage of the father’s salary only if the court receives compelling arguments due to the impossibility of paying previously established alimony

Alimony for a second child

It often happens that a family breaks up, and a minor child left with one of the parents receives money from the other for his maintenance. Then, after some time, the alimony payer has a second child, with whom he also refuses to live. In such a situation, an individual who does not fulfill his parental duty is obliged to provide alimony compensation to both children.

If his mother is responsible for receiving financial assistance for the first minor child, then the payer must inform her that he has additional child support obligations. You will need to re-draft a document regulating the receipt of previous payments, as well as formalize the calculation of alimony compensation for a new child in need of financial support.

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It should be noted that if the alimony payer flatly ignores the recipient’s requests to record with a special document the procedure for providing alimony, but at the same time pays benefits of a similar nature for another child, it is necessary to file a claim in which this situation will be set out. After this, the conflict will be resolved by the judiciary.

What is a good reason to reduce payments?

There are several criteria according to which the court can reduce the amount of alimony payments for a child from the first union. These include:

The monthly payment amount exceeds 50% of the payer’s total profitability (for example, if the corresponding condition was specified in the clauses of the notarial agreement).
The payer, when paying alimony, is not able to satisfy personal needs.
The rights of the children were violated due to the unequal distribution of the payer's income (this option is possible, again, if a notarial agreement for alimony was signed between the first spouse and the payer, with an amount different from that established by law).

It is recommended to submit a claim for a reduction in the share of payments to the new spouse and the mother of the child from the second marriage. In this case, the court will oblige the father to pay child support for the second child, and therefore will reduce the amount for the first.