Family law provides for the responsibilities of divorced parents in relation to their children. This mainly concerns the one who lives separately from the child. In this case, he must pay alimony to meet the needs of his offspring. This can be done through a voluntary agreement. If this is impossible, the matter is decided through the court. Sometimes ex-spouses quickly come to an agreement. But often the parent (usually the mother) expects the former spouse to finally change their minds and take care of their child. If this does not happen, then the first thinks about whether it is possible to recover child support retroactively, and not just get the current amount.
The main provisions in relation to alimony adopted in the RF IC
To understand this issue, you need to study the main provisions determined by the current Russian legislation. They are as follows:
- If the payer of the alimony did not pay the required amount, then you can submit a second statement of claim to the court. However, first you need to find out the necessary information on the case from the bailiffs.
- If the conditions of payments are established by agreement (voluntarily drawn up and certified by a notary), but the father does not commit them, then the mother can file a lawsuit against him with a request to transfer the debt retroactively. It doesn’t matter what the statute of limitations for concluding an agreement.
- If the alimony payments were not paid, and the ex-spouse did not demand them, she nevertheless has the right, after some time, to sue the alimony to receive the money retroactively.
- If the ex-husband avoided payments, not wanting to make them, and did his best to avoid communicating with the ex-wife, she has the right to file a lawsuit against him demanding payment in the last three years. In this case, the wife will have to prove the fact that on the part of the former spouse there really was a deviation.
- If the recipient of alimony voluntarily refused the payments, he has the right at any time to change his decision and demand the money; and if the other parent does not want to support the child, then apply for it to the judicial authority.
- If the claim for alimony is filed after the divorce, then the period of the corresponding paternal obligations begins on the date of divorce.
Is it possible to recover child support retroactively
Frequent are situations where the husband promises the ex-spouse to provide for their children on a voluntary basis. This obligation is not reflected in the documents in any way or an agreement is concluded through a notary public. However, over time, he forgets about duties and seeks ways to avoid communication with his ex-wife and child. In this case, the mother may file for child support after the divorce retroactively. This is done through a statement of claim demanding payment of the necessary compensation for the last three years. If by this time the child is eighteen years old, then the statement is drawn up personally by him.
Procedure
The parent raising the child sues the former spouse at any time before the child comes of age. The limitation period is three years. Thus, the longest period in hindsight that a child support recipient can count on is thirty-six months.
For this purpose, a statement is written to issue a court order or a statement of claim for child support in retrospect. In addition to this document, other papers will be required.
Required documents
Preparing for the court, you should collect the following package of documents:
- Statement of claim.
- Documents confirming the identity of the mother and child.
- Documents proving the fact of living together with a child.
- Income statements of the plaintiff and defendant.
- Evidence of failure to receive child support earlier.
If the parent submits alimony backdating, court practice shows that if there is a good evidence base, the court is more likely to decide in favor of the plaintiff. But if the ex-husband paid alimony, and the spouse nevertheless filed a lawsuit against him, he has a chance of an acquittal of the judge. But for this you should first obtain evidence that he supported the child. For this, it is important to record all the amounts that went to material support. If this is not the case, then you will have to pay alimony backdating.
Statement of claim
According to Art. 131 Code of Civil Procedure of the Russian Federation, a statement setting forth the requirement to pay the corresponding alimony payments should include the following information:
- The name of the court.
- Information of participants (their name, address of residence, contact details).
- The essence of the dispute, namely the presence of a child, non-payment of alimony, lack of agreement.
- Description of measures taken to recover money.
- Evidence of the plaintiff’s position, namely evidence of payment evasion.
- Calculation of the application price (for the previous three years).
- Claim for recovery.
- Date and signature.
Filing Conditions
In order to collect alimony backdating, the following conditions must be met:
- Before applying to the court, various measures were taken to obtain financial support from the other parent for the maintenance of children under the age of majority.
- Alimony was not paid because the alimony payer shied away from it.
Submit a claim to the court to compensate all child support for a child retroactively can a person who has the right to receive them. As such, legal representatives of minors act. These are parents, trustees or guardians.
How is the amount determined
The general rule states that the amount of alimony payments is calculated from the defendant's income based on the following provisions:
- ¼ earnings for one child;
- 1/3 of earnings - for two children;
- ½ earnings - for three or more.
This is indicated in Art. 81 of the Family Code of the Russian Federation. The calculation in this case is carried out for the previous 36 months. Typically, the amount of money earned is established on the basis of a statement of income, which is received at the work of the alimony. But the full list of income subject to deduction of alimony payments can be found in the RF PP No. 841 of July 18, 1996. The basic principles for calculating the amount are as follows: if the defendant did not work in the relevant period or there is no certificate confirming his employment, then the amount is established based on the average salary in the region at the time of calculating the debt. This is stated in the letter of the FSSP of the Russian Federation No. 00011/16/19313-AP.
If the determination of the amount of maintenance payments significantly violates the rights of one or the other party involved in the process, then you can file for child support retroactively in a solid amount. Then, according to paragraph 4 of Art. 113 SK RF, the court decides on the basis of the situation of the parties (both material and family), and also takes into account other circumstances of the case.
If alimony is fixed, then they must be indexed in accordance with the provisions of Art. 117 SK of the Russian Federation.
Collection features
Parents raising children on their own, as a rule, have very little free time. In this regard, they are wondering whether it is possible to file for child support retroactively in such a way that then does not spend a lot of time attending court hearings. It turns out there is such a way. In addition to the lawsuit proceedings of the Code of Civil Procedure of the Russian Federation, it is possible to recover alimony payments through a court order. It can be obtained in the presence of conditions such as:
- minority of the child in whose favor child support is paid;
- fatherhood is not questioned;
- the requirement does not involve third parties.
- collection amount does not exceed 500 thousand rubles.
If at least one of the conditions is not met, then backdating on alimony will need to apply to the court in order of action. The advantage of a court order is that it does not require proceedings and additional appearance in court. The court issues an order within the time limits established by law. However, if an objection is received from the defendant, the order is canceled, and the recipient of the alimony will have to go to court in the usual manner.
Terms of consideration
Usually, cases considered in the lawsuit are processed within one month. At the first hearing, the court verifies that all participants in the process are present. In principle, a case may be considered in the absence of either party. This takes place in case of their notification and non-reporting of good reasons for their absence. However, if it turns out that the court does not have supporting evidence to notify the absent party, the hearing is adjourned. This may slightly increase the time for consideration of the case.
If an application has been filed for a court order, then the order of consideration is even less. The court must issue a document within five days from the receipt of the relevant application.
Re-appeal
According to clause 2 of Part 1 of Article 133 of the Code of Civil Procedure of the Russian Federation, the courts are ordered to not accept claims if, in a previous dispute, the court issued:
- a decision that has entered into legal force;
- determination to terminate proceedings due to refusal by the plaintiff;
- the same definition adopted in connection with a settlement between the parties.
Based on this provision, we can conclude that a repeated application for alimony in retrospect is allowed if it has changed:
- defendant (paternity of another person established);
- subject of application;
- grounds (for example, an alimony payer got a good job, in connection with which it is possible to establish alimony as a share of income, if previously the amount was a fixed amount).
If the alimony simply does not fulfill the obligations, then the recipient needs to contact the FSS to initiate enforcement proceedings.
Avoiding retroactive claim
The only option that allows the child payer to be sure that the recipient will not be able to sue him is to faithfully fulfill his duties as the father of the child. Otherwise, there is always a risk of litigation on this basis.
Even if the payer of alimony works unofficially, and also does not live at the address of registration, he will not be able to avoid alimony. Moreover, in this case, if the mother of the child submits an application for a court order to the court, he may not be able to raise objections so that the document is canceled. Bailiffs today have many powers to identify debtors. You can learn more about this in the law on enforcement proceedings No. 229- dated October 2, 2007.
In addition, a penalty in the amount of 0.5% for each delayed day may be recovered from the debtor. Prolonged non-payment of alimony can lead to the sale of property belonging to the debtor.
Conclusion
As you can see, the answer to the question of whether it is possible to file for alimony backdating will be positive. But it must be borne in mind that they can only be received in the last three years, and also if the recipient of the alimony has taken active steps to do this, for example, went to court for a court order and sent the debtor claims by mail and so on.