The birth of a child imposes a number of obligations on parents to ensure a decent standard of living until such time as he is not able to take care of himself. According to Russian law, adulthood for boys and girls begins at age 18. Until this age, they are wholly supported by both parents, even if the marriage between them has long been broken.
The right to livelihood
From the moment of birth, every child is a full citizen of his country and is protected by law. In the Russian Federation, his rights are enshrined in the Constitution - the main state document, as well as the Family Code. In addition to them, there are international laws: the Declaration of Human Rights and the Convention on the Rights of the Child. According to them, parents must provide their children with good nutrition, decent living, mental, physical and moral education in accordance with their financial capabilities.
Divorce and withdrawal from the daily life of a child of a father or mother does not remove from them the legal duty to take care of their offspring until they reach the age of 18. One of the parents has the right to bring a lawsuit to recover child support over the past period during this age range. The relevant provision is spelled out in article 80 of the Family Code. The procedure for collecting alimony is prescribed in the National Strategy approved in 2012 both on a voluntary basis by one of the parents and with the involvement of the judicial system. However, in practice, meeting the interests of minors is not so simple. And the number of deviators from their parental rights in the country is regularly growing.
Whom to pay?
In most cases, after a divorce, the child remains with the mother, and the father must pay child support. This is the most common development of events. But the law also provides for the opposite: children live with their father, and the obligations to provide them with finances are assigned to the mother. An application for the recovery of alimony for the past period, if one of the parents evades voluntary payment, is submitted by the one with whom the children live. However, the law allows the right to respect the interests of minor relatives and other family members. For example, grandparents or other persons, if the children are on their support. In some cases, employees of guardianship authorities can also use this right if the relatives themselves do not show any interest in collecting money for the maintenance of minors.
According to the law, alimony should go to the life support of a child brought up outside of marriage. But there are cases when they are completely at their discretion disposed of by their father, mother or guardians. In this case, according to article 60 of the Family Code, the alimony paying party has the right to demand that part of this money be credited directly to the child’s personal account. But this clause of the provision is extremely rarely observed, since it is extremely difficult to prove that funds are spent for other purposes.
Realization of own right
Not only trustees or official guardianship authorities can go to court for child support. The constitution gives the child the right to take care of his own security from the age of 14. If for several years he did not receive any financial support from his father or mother for his maintenance, he can personally go to court. A sample of the claim for alimony for the past period must be provided to him upon request. At the same time, it is not necessary to be in court with the teenager when drawing up the application to the trustees or to the second parent.
Not only legal children, but also those born out of wedlock can demand a penalty. A number of conditions must be met in order to secure parental support. First of all, have convincing evidence that their own rights have been infringed. It’s not easy to collect them, and not everyone decides to enter into legal proceedings with adults, but an experienced lawyer can come to the defense of a teenager. Without a solid evidence base, you can only lose time and achieve nothing. Similar precedents in judicial practice have occurred, but positive processes in favor of adolescents are also known.
Payout amount
Currently, there are several types of accrual of child support. The first - as a percentage of the total income required to pay the parent. The second - in hard cash. Debt collection for child support over the past period is also calculated according to one of these schemes. Both interest and the specific amount, depending on the number of children on whom payments are made, vary.
So, with a percentage accrual scheme per child, a quarter of the parent's monthly income is due. For two already a third. And if there are three or more children left in the former family, it is planned to pay half of the salary, prize, vacation pay, bonus and other types of cash receipts received during the month for their maintenance.
If a parent does not have a regular income or receives a salary according to the gray scheme, he has the right to charge a specific amount in favor of one or several children. It is calculated depending on the value of the minimum wage. According to the minimum wage, the amount of the recovery of alimony for the past period is also determined. The statement of claim is filed in standard form, but when calculating the amount of payments, indexation of the last three years is taken into account.
Taken care timely
Divorce is not always accompanied by scandal and finally spoiled relations between former spouses. Quite often they manage to agree among themselves on the further maintenance of common children. In this case, a contractual agreement is signed on the amount of alimony, the scheme and the timing of their payments. Russian law provides that even with the voluntary payment of money for the maintenance of children, the contractual amount should not be lower than the officially established. Otherwise, even after the expiration of the time, it is possible to demand the recovery of alimony for the past period. Judicial practice knows similar cases.
There is another option for law intervention in the presence of initial voluntary consent to pay a certain amount of money for children by one of the parents. After some time between the former spouses, initially friendly relations may deteriorate or their financial income may change. The payer may waive his obligations. The second parent at any time has the right to apply to the court to recover child support for the past period. The court decision in this case will not depend on the voluntary contract concluded between the father and mother of the child, but on Russian law. Even if the agreement was concluded in writing and notarized.
Fled - forgot
Often, parting can be quite painful for one of the spouses, and he breaks all ties with his recent second half. At the same time, children suffer because they are not only forbidden to meet with their father or mother, but also deprived of material support if the offended party does not want to financially depend on their ex-husband or wife. But over time, there may be a need for cash, the spouse recalls the second parent and proceeds to collect child support for the past period. Judicial practice proves that in this case, when providing evidence that the father or mother did not participate financially in the upbringing of the child, child support for the past three years will be collected from the non-payer.
A parent who can raise a child or several children can use this right at any time after separation. But if the period during which the father or mother did not pay child support exceeds three years, the collection will be made only in the last 36 months. Of course, there are many nuances with the evidence base that needs to be provided to the court, but with a reasonable approach it can always be collected. In this case, it is easy to recover the alimony for the past period. A sample application can be obtained in a magistrate’s court, which deals with such cases.
Given the limitation period
The concept of debt on alimony carries a different essence, contained in the legal wording "collection for the past period." The first has no statute of limitations and must be claimed in favor of the child even after ten years after reaching the age of 18. Debt accumulates provided that at a certain period one of the parents was obligated to provide materially one or more of their children, but he neglected this duty. In this case, the amount may amount to hundreds of thousands of rubles, and sooner or later be withheld from the deadbeat.
Completely different involves the recovery of alimony for the past period. Judicial practice in this case is conducted taking into account the statute of limitations and is limited to three years prior to the appeal.
The law does not provide for automatic imposition of obligations to collect alimony for one of the spouses after separation. The parent with whom the child remains must be officially declared in court about the monthly financial maintenance of the child by the father or mother who has left the family. At the same time, you should not waste time, since you can lose legitimate payments if you recall them four or more years after the separation. Collecting alimony for the past period may be required only for the last three years.
And it is also necessary to remember one important condition that will be accepted by the court in favor of the plaintiff: during these third years it is necessary to try to negotiate amiably with the defendant about making money to support the child. If the fact of a voluntary refusal to pay alimony is confirmed, the court can assign payments only from the current moment.
Evidence base
As a second parent's refusal from his financial participation in the life of his own child, correspondence between father and mother on social networks, via SMS or e-mail, in which their open statements on this issue are reflected, can serve. But the most common way to prove dialogue between parents is by eyewitness accounts. Only having a solid evidence base that such a dialogue has been going on all this time, you can go to court to collect child support for the past period. The statement of claim must be made taking into account all the available supporting facts. You should also attach to it all the collected checks, which will indicate that certain amounts have been spent on the child.
However, when deciding in favor of the plaintiff, the court will also take into account the evidence base on the other hand. That is, if the defendant documented or with the provision of audio or video records confirms that in these three years he provided his child, albeit irregularly, with the slightest financial support, then the applicant will have big problems with collecting child support over the past period. Judicial practice takes into account all proceeds in favor of a minor. In any case, within one month from the day the claim is filed with the magistrate court, it must be considered and a decision is made on it. Positive or negative. Further, the parties may appeal it within ten days if they consider it unlawful.
Arbitrage practice
Seeking justice in restoring the rights of their minor children, to the mother or father, in whose care they are, it is necessary to take care of the evidence for the court on their own. And they must be impeccable. In addition to supporting facts that over the past three years the second parent did not participate in the maintenance of the child, it is important to observe a number of other mandatory conditions when drawing up the statement of claim.
The procedure for collecting alimony for the past period begins with a statement in which all information about the defendant known to the plaintiff must be indicated. Passport data, place of residence, work, approximate or well-known and documented amount of earnings. Naturally, without photocopies of the applicant’s passport, birth certificates of children, as well as marriage and divorce, if it was formalized, the court will not accept the case for the recovery of alimony for the past period. It is also necessary to provide a certificate stating that the child is living with the plaintiff. This is the minimum set of necessary documents for going to court.
There is no uniform claim template for all, each case is individual. But, so that the court does not have reasons for its rejection, it is important to prescribe as detailed as possible your relationship with the defendant regarding the birth, upbringing and maintenance of common children throughout the marriage and after the divorce. With what means the family existed, who was the main earner of finance, for what reasons the second parent could not contribute to the general material support of the children. It is also important to keep just for such a case all the checks and receipts for which the child’s education, clothes and shoes for him and everything necessary for a full-fledged existence were paid. There are no unnecessary details for the court in this regard. The more of them, the better.
Executive - after
A malicious deadbeat can be called to criminal liability. This circumstance would be able to affect the draft-devil terrifyingly, but the responsibility for non-payment of alimony at the moment is so scanty that it has no significant effect on the negligent parents. It is easier for them to work out compulsory labor service, which we have from 120 to 180 hours, or to serve three months in custody than to keep their own children. Even correctional labor for up to twelve months does not scare them. The practice of collecting child support over the past period is even milder.
As already mentioned, it is necessary to prove that the father is not involved in the financial provision of the child. But one-time and documented receipts during the three-year period, to which the right to collect alimony for previous years extends, are able to reduce all claims of the parent with whom the child lives. Keeping this in mind, you should not postpone the appeal to the court for the appointment of appropriate financial support from the second spouse in the long box.