Recovery of child support in shares: judicial and non-judicial means of dispute settlement
We all know that parents are obliged to support their minor children. In the Russian Federation, this form of maintenance is alimony. Due to the fact that the issues related to the amount of alimony, the order of recovery and the method of execution of the judicial act constitute the main block of questions of family law, which are asked to us by citizens, we decided to devote a separate article to this topic. Since the issue related to the payment of alimony is very informative and voluminous, in this article we will discuss only one topic related to the payment of alimony in shares.
According to part 1 of article 81 of the RF IC in the absence of agreement about payment of the alimony the alimony on minor children is collected by court from their parents monthly in size: on one child - one quarter, on two children - one thirds, on three and more children - half earnings and (or) other income of parents. In this case, alimony of this size is subject to recovery, provided that the parent's income is fixed and determined (for example, he works under an employment contract and has a stable salary). If the income of the parent obliged to pay alimony is not determined (for example, he is an individual entrepreneur), then in this case alimony from him must be collected in hard cash, or combine the above shares and hard cash (article 83 of the RF IC).
Moreover, it should be taken into account that according to part 2 of the same article, the size of these shares may be reduced or increased by the court taking into account the material or family situation of the parties and other circumstances deserving attention. According to item 20 Of the resolution of Plenum of the Supreme Court of the Russian Federation of 26.12.2017 No. 56 "about application of the legislation by courts at consideration of the cases connected with collecting the alimony" to such circumstances, in particular, can be carried:
other minors and (or) disabled adult children, as well as other persons whom he is obliged by law to maintain; low income of the alimony payer; health status of the alimony payer (for example, disability due to age or health condition), as well as the child for whose maintenance alimony is collected (for example, the presence of a serious illness requiring long-term treatment). Types of earnings and (or) other income from which alimony is withheld for minor children are established by the Decree of the Government of the Russian Federation of 18.07.1996 No. 841 "on the List of types of wages and other income from which alimony is withheld for minor children".
In society, there is a perception that alimony can be recovered from the second parent only after the divorce, however, this is not true. The family code does not connect the legal relationship of parents in the form of marriage and alimony, i.e. it is quite possible to collect alimony from one parent to another and during their marriage (in our practice this has been repeatedly).
As a rule, the issue of recovery of child support is decided by the court in the case of divorce of his parents (article 24 of the RF IC). However, as we have already pointed out, this is only a General rule, in practice, there are a variety of options for the recovery of alimony.
For example, alimony in shares can be recovered by filing an application for a court order to the magistrate's court. This statement is made by one of the parents at a private residence in the magistrate's court (paragraph 1 of part 1 of article 23, part 3, article 29, article 122 of the code of civil procedure of the Russian Federation) and not subject to state duty. It is necessary to attach documents confirming the relationship with the child. After the court finds that the jurisdiction has been respected, as well as all the necessary documents have been attached to the application, it will issue a court order on Your application within five days from the date of receipt of the application for a court order. The peculiarity of writ proceedings is that the court order is issued without trial and call the parties to hear their explanations.
If, within ten days of the receipt of the court order, the parent against whom it was issued appeals to the same magistrate's court (the reasons for the complaint are not examined by the court, only the fact of filing such a complaint is of legal significance), the judge cancels the court order, and notifies the applicant. After that, the applicant has the right to apply with a similar claim to the district court at the place of residence (the state duty is also not paid) already in the order of the claim proceedings. If the court order is not appealed, after the deadline to appeal, he shall come into force and becoming an Executive document, on the basis of which the bailiffs-performers (usually the district Department of the Federal bailiff service of the Russian Federation at the place of residence of the debtor) will recover the said judicial order of the share of the income of the debtor in favour of the applicant(the applicant).
It should be noted that the child's parents can decide on the payment of alimony and outside the court. Thus, Chapter 16 of the Family code of the Russian Federation is devoted to the agreement on payment of child support. It should be taken into account that alimony under the agreement may not be less than the amount established by law (part 2 of article 103 of the RF IC), and this agreement must be notarized, otherwise it is invalid. This agreement, despite all the nuances of family-
of a legal nature, has a civil nature, in connection with which it can be challenged by the interested person under the General rule of the Civil code on challenging transactions (for example, if the person who concluded the agreement acted under the influence of a material error, fraud or threat, and at the time of signing the agreement was not expressed his true will). After signing and notarizing the agreement on payment of alimony will have the force of the Executive document, on the basis of which, as previously stated, bailiffs will retain alimony from the income and earnings of the parent obliged to pay alimony.
Having considered the main aspects of recovery of alimony for children in shares in court and out of court, next time we will focus on the issue of recovery of alimony in hard cash, as well as describe in detail the main issues that occur among citizens in the process of recovery of alimony, and propose ways to solve them.
Sincerely, assistant attorney Mukhin Dmitry Andreevich