When the collection of alimony in proportion to earnings is impossible or it is difficult for the interested party to file a claim for alimony in a fixed sum of money. We offer a sample statement of claim for the collection of alimony for minor children in a fixed amount, taking into account the latest changes in legislation.
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What is alimony in a fixed amount?
Alimony in a fixed amount is an alternative way of calculating and collecting alimony. Unlike the shared order, it is determined in a specific monetary amount, which must be a multiple of the subsistence level.
As a general rule, alimony is collected in proportion to the debtor's earnings. But this case is suitable for situations where the person obligated to pay alimony officially works. And receives a stable salary. To collect alimony in a fixed amount, it is necessary to comply with the special conditions listed in Article 83 of the Family Code of the Russian Federation:
- unless the payer has irregular, fluctuating income. For example, seasonal worker, entrepreneur, etc.;
- when there is no official income, the payer does not work;
- the alimony payer receives income from products or goods, other kind;
- if the income received is paid in foreign currency;
- in cases where collection in equity is impossible, difficult or significantly violates someone’s interests;
Another case of collecting alimony in a fixed amount would be the situation when common children remain with each of the parents (“shared”). In such a situation, child support is collected only from the wealthier parent. And in a fixed amount of money.
Please note that the collection of alimony in a fixed amount is an exception to the rule. In general, recovery occurs in proportion to earnings according to a court order. If alimony is determined in a fixed amount, a statement of claim is filed with the court.
| May be useful: Application for a court order to collect alimony |
Indexation of alimony
If the court has set alimony at a fixed amount, then it must be indexed every quarter. This requirement is specified in Article 117 of the Family Code of the Russian Federation. The indexation must be carried out by bailiffs or the organization where the payer works.
But in order for the bailiffs not to forget about this obligation, we advise you to write an application for indexation every year. The application must be submitted to the bailiff who is handling your case. Below you can fill it out yourself.
To make it easier to index alimony, they are almost always assigned as multiples of the subsistence level. This rule is specified in paragraph 2 of Art. 117 of the Family Code of the Russian Federation.
See an example of filling. Do not forget to indicate the amount that the court has assigned you and the case number.
If the bailiffs do not respond to your demands, then you need to write a complaint addressed to the head of the Federal Bailiff Service and the prosecutor's office.
How to determine the amount of alimony in a fixed amount
The plaintiff must indicate in the statement of claim the amount of alimony that, in his opinion, can provide the child with the necessary level of maintenance.
It is necessary to take into account such conditions of ensuring that there is enough money for food, clothing, everyday things, toys, educational aids and supplies for the child. If a child participates in clubs and sections, receives additional education in a music or art school, the costs of additional education should also be taken into account when determining the level of support. If the child has illnesses. requiring expenses for treatment and maintaining health, it is worth taking into account such expenses. However, you should not make assumptions about the possibility of future expenses that may arise if some additional circumstances occur; the court will not accept such arguments. In this case, the recipient of alimony will be able to file a claim for additional expenses for the child.
Be sure to check out:
New law on alimony
The plaintiff should also take into account his level of income. Since both parents must participate equally in the maintenance of their common children. However, if there is a significant difference in income, it is possible and necessary to assign the main expenses to the wealthier parent.
It will be easiest to determine the amount of alimony in a fixed amount in cases where the child’s parents previously lived as one family and fully bore all expenses for the child. In this case, the principle applies that the court tries to maintain the child’s previous level of support as much as possible.
After all monthly expenses for the child have been calculated, it is necessary to make an assessment of the current marital status and income level of the future payer and recipient. For example, when, after a divorce, the child’s father has more children from a new marriage, and his income has dropped significantly, it is obvious that he cannot provide the child with the same level of support. And in such a situation, the court will seek a balance between the father’s capabilities and the child’s needs.
The court determines the amount of alimony in a fixed monetary amount that is a multiple of the subsistence minimum for children established in the relevant constituent entity of the Russian Federation at the place of residence of the person receiving alimony. If a subsistence minimum is not established in a constituent entity of the Russian Federation, then the subsistence minimum for children in Russia as a whole is applied. The cost of living is set quarterly, with some delay. You can find out its size on the official website of the region.
When the cost of living changes, the amount of alimony collected in a fixed amount of money is subject to indexation. It is carried out independently by the bailiff or by the organization at the debtor’s place of work.
What amount of fixed alimony can you get?
So far, no amendments have been made to the Family Code regarding both the minimum and maximum amounts of alimony.
But if we are talking about a strictly established amount, then it is tied by the courts to the value of the subsistence minimum for children. then alimony can be collected in double, triple, and so on amounts in relation to this indicator.
Therefore, to understand how to calculate the amount of monthly payments, you should consider a number of things.
It is necessary to determine the child’s real financial needs:
- additional education;
- nutrition;
- cloth;
- treatment;
- child's leisure, clubs or sports sections.
Then the resulting budget should be compared with the cost of living on the date of filing the claim. In this way you can get the actual amount of monthly alimony.
It is, of course, permissible to state any figure for alimony payments in a claim. However, the court has the right to reduce it if the requirements are clearly excessive.
How to file a claim for alimony in a fixed amount
When drawing up a claim for alimony in a fixed amount of money, you should be guided by the general conditions for drawing up claims for the collection of alimony and the rules for determining their jurisdiction.
Please note: Statement of claim for collection of child support
In the text of the statement of claim for the collection of alimony in a fixed amount, it is necessary to justify why alimony must be collected in a fixed amount, and not in shares.
Attached to the statement of claim are the children's birth certificates, a certificate confirming the child's registration with the plaintiff, documents on the income of the plaintiff and the defendant (for the defendant - if possible), documents on the presence (absence) of a marriage between the parties.
The most difficult part will be to justify the conditions for receiving alimony and determine the amount of the amount to be recovered. To justify the amount, indicate 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. It would be correct to make an arithmetic calculation of the amount, attaching it to the statement of claim.
What documents should I attach?
Required applications:
- a copy of the document confirming the right to receive maintenance (a copy of the birth certificate);
- notification of sending the claim and documents to the defendant;
- document of residence (when filing a claim against a child, it is necessary to prove residence with the parent filing the claim).
Plaintiffs are exempt from paying state fees (Article 333.36 of the Tax Code of the Russian Federation).
Optional:
- copies of documents confirming the conclusion and dissolution of marriage relations;
- copies of certificates of earnings and income;
- certificates of prescribed treatment, etc.
IMPORTANT!
In 2021, amendments were made to the Code of Civil Procedure of the Russian Federation, according to which the plaintiff independently notifies the defendant of the presentation of claims, sends him the claim and the documents missing from the defendant. Another item is added to the application, which indicates a notice of notification or a receipt for sending documents by mail.
Submission and consideration of a claim for alimony in a fixed amount of money
A claim for alimony in a fixed amount is filed with the district court. The plaintiff has the right to choose a court at his place of residence, at the place of residence of the defendant (alimony payer). The plaintiff is exempt from paying state fees when filing such a claim.
After accepting the statement of claim for proceedings, the court will schedule a court hearing in which the validity of the requirements to establish alimony in a fixed amount will be established. If there are no grounds for this, the judge will make a decision to collect alimony in shares of earnings.
The consideration of a claim for alimony in a fixed sum of money takes place at a court hearing, where the court will invite the plaintiff and the defendant. The plaintiff will be asked to justify the demand for alimony in a fixed amount, provide evidence of necessary expenses for the child, and show his income. The defendant will be asked to explain his evasion of child support and provide evidence of his financial and marital status. Based on the results of the consideration of the case, a court decision is made. The parties have the right to appeal the decision within 1 month through the appeal procedure. After the expiration of the appeal period, the decision enters into legal force and is subject to execution.
Please note: appeal against a court decision
How does collection occur?
To do this you need to take a few very simple steps:
- After the decision is made, you will need to write an application for a writ of execution. You can obtain this document from the court office.
- Then you need to draw up an application to initiate enforcement proceedings. Along with this application and sheet, you need to contact the bailiff service.
- The bailiffs will open enforcement proceedings and begin to collect funds from the debtor in your favor.
Bailiffs can make collections from any income of the defendant. Here are some of them:
- funds in bank accounts;
- wage;
- income from individual entrepreneurs;
- from fees and other payments.
Collection of alimony in a fixed amount
Collection of alimony in a fixed amount of money is possible only upon filing a statement of claim. The writ procedure is not applied in this case, which means that the magistrate will not issue a court order for alimony in a fixed amount.
The decision to collect alimony in a fixed amount will indicate from what and for how long alimony is collected (usually from the day the claim is filed until the day the child reaches adulthood). A specific amount in rubles will be determined, and it will be indicated how this amount is a multiple of the subsistence level. The frequency of collection of alimony has been determined. In this case, monthly payments are usually indicated.
Who is entitled to
Any recipients can apply for “fixed alimony”:
- Children under the age of majority.
- Disabled but adult children.
- Disabled spouses (and former spouses).
- Parents of adult and able-bodied children.
- Other recipients of alimony in accordance with the law.
To establish alimony, the potential recipient goes to court (if it is not possible to reach an agreement with the payer). Further collection is carried out forcibly.
Switching to alimony in a fixed amount
There are often situations in life when citizens’ financial or marital status changes. And alimony established by a judicial act in shares of earnings can no longer ensure a decent existence for a child. How to switch from one type of alimony to another?
There is nothing complicated here. Such cases are often heard in court. It is enough to draw up a new claim for alimony in a fixed amount and submit it to the court in the general manner. Additionally, the application indicates the previous collection of alimony and the change in life situation, attaching a copy of the court decision as an appendix to the statement of claim. In all other respects, the procedure for preparing, filing and considering a claim will be similar to that considered. As well as the grounds for establishing a fixed monetary amount.
How to file a claim
You can personally submit your application to the Magistrates' Court. To do this, you must register an application with the court registry department. It is necessary to prepare two copies of the statement of claim: one is submitted to the court, and your copy is marked with a note indicating its receipt and further consideration.
The document can be submitted by registered mail. In addition to the application, the envelope should include a list of attached documents. Once the court receives it, you will be sent a notification that it has been accepted for consideration.
Sample statement of claim for alimony in a fixed amount
When preparing a claim, you can use the provided sample application for alimony in a fixed amount, filling it out in writing or in printed form. Enter your details and describe the entire situation in detail. If you have any questions about filling out the sample, please contact the site’s lawyer.
| IN ___________________________ (name of the court) Plaintiff: _______________________ (full full name, residential address) Defendant: _____________________ (full full name, residential address, date and place of birth, place of work (if known), one of the identifiers (if known to the plaintiff), such as SNILS, TIN, passport details, driver's license) Statement of claim for alimony collectionin a fixed amount of moneyI am the mother (father) of the minor(s) _________ (full name of the child(ren) "___"_________ ____ year of birth. The defendant is his (their) father (mother). The marriage between the plaintiff and the defendant was not concluded (dissolved on _______ (grounds ) "__" ______ ___) The child (children) lives with me at the address: _________ (indicate the address of residence), is on my full financial support. The defendant does not take part in the maintenance of the child (children), it is not possible to voluntarily resolve the issue of paying alimony, an agreement on the payment of alimony has not been concluded. I believe that the defendant should pay alimony for the maintenance of a minor child (children) _________ (full name of the child) in my favor in a fixed sum of money, since _________ (indicate the circumstances provided for in Article 83 of the Family Code of the Russian Federation, giving the right to determine the method of payment of alimony for minor children in a fixed amount of money). Determining the amount of alimony in a fixed monetary amount will ensure stability in the maintenance of the child (children) and will avoid difficulties in determining the amount of alimony to be paid further. Only in this case will the principle of proportionality between financial assistance to the child and the capabilities of the alimony payer be observed. When living together, we spent an average of _______ rubles per month on a child (children). After a divorce, I can spend _______ rubles on child (children) support. My monthly income is: _______ rub. Please take into account the marital status of the parties when deciding the amount of alimony to be paid _________ (indicate the marital status of the plaintiff and defendant, the presence of obligations to support other persons). The size of the subsistence minimum for children in the territory of _________ (indicate the name of the subject of the Russian Federation where the child lives) is _______ rubles, which is established by _________ (indicate by what regulatory act the size of the subsistence minimum is established in the corresponding subject of the Russian Federation, if not established in the subject, indicate in general for RF, with reference to the relevant resolution of the Government of the Russian Federation). Taking into account the need to maximally preserve the level of his previous support for the child (children), the amount of alimony in a fixed amount should be determined in the amount of ____ (indicate the size of the fixed monetary amount in shares of the subsistence level (for example, ½ or 1.5 or 2), since _________ ( indicate the grounds for collecting alimony in the amount specified by the plaintiff).Taking into account possible changes in consumer prices during the period of collecting alimony by court decision, it is necessary to determine a mechanism for indexing alimony collected by the court in a fixed amount of money, based on changes in the size of the subsistence level. Based on the above, guided by Articles 83, 117 of the Family Code of the Russian Federation, Articles 131-132 of the Civil Procedure Code of the Russian Federation, Ask:
List of documents attached to the application:
Date of application “___”_________ ______ Signature of the plaintiff _______ |
statements:
Statement of claim for alimony in a fixed sum of money
Peculiarities
Collecting alimony in a fixed amount has its advantages and disadvantages, so the choice of payment calculation method should be approached carefully, assessing all the circumstances.
Advantages and disadvantages
The advantages of this method are obvious:
- Possibility of collecting a larger sum of money than when collecting a share.
- The amount of alimony will not depend on the payer's changing earnings.
The second plus can partially be attributed to the minuses. If the payer’s income increases, then the same amount can be recovered.
The collection of alimony in a fixed amount is carried out in accordance with the procedure of claim proceedings. This process is long and requires serious preparation.
Alternatives
The main alternative is to collect alimony as a percentage of earnings.
If payments were determined in the amount of a certain share of income, and the person has no income, then the amount can be determined based on the average salary in the country.
Is it possible to change the amount
Alimony is set in proportion to the cost of living, so the amount will change depending on changes in this value.
Also, the parties can submit applications to increase or decrease the amount of payments based on changes in their status (property, health, etc.).
Regulatory framework for alimony in a fixed amount
Family Code of the Russian Federation:
Article 83. Collection of alimony for minor children in a fixed amount of money
- 1. In the absence of an agreement between the parents on the payment of alimony for minor children and in cases where the parent obligated to pay alimony has irregular, variable earnings and (or) other income, or if this parent receives earnings and (or) other income in whole or in part in kind or in foreign currency, or if he has no earnings and (or) other income, as well as in other cases, if the collection of alimony in proportion to the earnings and (or) other income of the parent is impossible, difficult or significantly violates the interests of one of the parents. parties, the court has the right to determine the amount of alimony collected monthly, in a fixed sum of money or simultaneously in shares (in accordance with Article 81 of this Code) and in a fixed sum of money
- 2. 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.
- 3. If there are children with each of the parents, the amount of alimony from one of the parents in favor of the other, less wealthy one, is determined in a fixed amount of money, collected monthly and determined by the court in accordance with paragraph 2 of this article.
Article 117. Indexation of alimony
1. The indexation of alimony collected by a court decision in a fixed sum of money is carried out by the organization or other person to whom the writ of execution (a copy of the writ of execution) was sent in the cases established by part 1 of article 9 and clause 8 of part 1 of article 47 of the Federal Law of October 2, 2007 year No. 229-FZ “On Enforcement Proceedings”, or a bailiff within the framework of enforcement proceedings in proportion to the increase in the cost of living for the relevant socio-demographic group of the population established in the relevant constituent entity of the Russian Federation at the place of residence of the person receiving alimony, and in the absence in the corresponding subject of the Russian Federation, the specified value is proportional to the increase in the cost of living for the corresponding socio-demographic group of the population, established for the Russian Federation as a whole.
2. The amount of alimony collected by a court decision in a fixed sum of money, for the purpose of indexation, is established by the court as a multiple of the subsistence minimum, determined in accordance with the rules of paragraph 1 of this article, including the amount of alimony can be established as a fraction of the subsistence minimum.
Additionally, you can study the Resolution of the Plenum of the Supreme Court of the Russian Federation dated December 26, 2017 No. 56 “On the application of legislation by courts when considering cases related to the collection of alimony.”
Grounds for application
According to Art. 80 of the RF IC, parents must equally bear the burden of financial support for their children. Based on Art. 83 of the RF IC, alimony can be recovered for a child in a fixed amount if one of several conditions is met:
- It is not possible to determine the exact income of the payer.
- The ex-spouse does not work or receives a salary in foreign currency.
- Salaries are paid in whole or in part in kind.
- The payer is not employed, but has unofficial income.
- The amount of payments as a share of income (Article 81 of the RF IC) does not correspond to the interests of the minor and does not cover half of the costs for him.
- The payer is unemployed, but is not registered with the Employment Center (otherwise payments are usually collected as a share of the unemployment benefit).
In other cases, alimony is collected as a share of the salary. For one minor, 25% is paid, for two – 33%, for three or more – 50%.
Alimony for other relatives
If we are talking about payments for the maintenance of spouses, parents and other relatives, then they are collected only in the TDS. When determining the amount, the court will take into account the financial situation of the plaintiff and defendant, but the amount is indicated in the statement of claim. There are no guarantees that the requirements will be satisfied in full, but if there are grounds, you can recover at least 0.3-0.5 regional PM.
For example, alimony is collected for the maintenance of a former spouse if she is pregnant or on maternity leave for up to three years; cares for a disabled child and needs financial assistance; retired no later than five years from the date of divorce and is considered to be in need (Article 90 of the RF IC). Men can also demand payments from their ex-wives in the same way.
Questions and answers
Ordinary citizens are often faced with the question of in what cases fixed alimony is paid. Here are the answers to the most common problems.
Is it possible to receive fixed alimony with an individual entrepreneur?
My former husband is an individual entrepreneur, can I demand from him a deduction for a child in a specific amount?
Expert commentary
Roslyakov Oleg Vladimirovich
Lawyer, specialization civil law. More than 19 years of experience.
Ask a question
Yes it is possible. After all, an entrepreneur often does not have a constant income. Therefore, the court may meet you halfway.
What to do if the husband does not pay alimony according to the agreement
The former spouse does not pay alimony. We signed an agreement regarding them. What should I do?
Expert commentary
Roslyakov Oleg Vladimirovich
Lawyer, specialization civil law. More than 19 years of experience.
Ask a question
You just need to apply with the agreement for the support of the bailiffs located at the debtor’s residence address. There is no need to go to court to award alimony.
How to calculate the size
I'm going to go to court. By what principles is the amount of payments calculated?
Expert commentary
Roslyakov Oleg Vladimirovich
Lawyer, specialization civil law. More than 19 years of experience.
Ask a question
Emphasis should be placed on the cost of living applicable in a particular Russian region in relation to children. Its figure is easy to find on the Internet. You can declare half, one and a half, two minimums. You also need to make a calculation of the actual costs for the child and attach it to the claim. However, the court will indicate a specific figure in its decision.
What if your husband doesn't help?
The husband does not pay a penny, although there is a court decision to collect alimony in a fixed amount. Despite persuasion, he does not want to pay alimony in favor of his daughter according to the court. What to do?
Expert commentary
Roslyakov Oleg Vladimirovich
Lawyer, specialization civil law. More than 19 years of experience.
Ask a question
Contact the bailiffs to bring the debtor to administrative liability. If this measure of influence does not help, it makes sense to insist on initiating a criminal case.
What does judicial practice say?
When issuing decisions regarding fixed alimony in favor of children, courts take into account a number of nuances.
These include:
- Property status of the recipient of payments and the debtor.
- Age of the child.
- The son's (daughter's) financial needs.
If alimony is awarded in a fixed amount, the magistrate's court may eventually waive its payment.
An example of this is the appeal ruling of one of the district courts of Vladivostok dated July 25, 2017. This happens, for example, when a child moves to live with his father and, therefore, no longer needs outside support.
The courts also analyze how the payer’s income level has changed. Therefore, when calculating the amount of alimony, the financial support of the payer is examined.
We recommend! Alimony from an individual entrepreneur: in what amount and how much alimony should an individual entrepreneur pay?
When there are several children in a family, the court determines the amount of payments for each child.
In the operative part of the decision, the courts determine not only the amount of payments, but also link them to the subsistence level (for example, ½). Also in the final section of the decision it is indicated until what time the awarded value is valid. This could be the coming of age of a son or daughter, or changes in the financial situation of the parties concerned.
