2023 Author: Melissa Kennedy | [email protected]. Last modified: 2023-05-24 13:57
Despite the fact that the constitution has long proclaimed the inviolable right of children to special protection and assistance from their parents, litigation over the recovery of alimony does not subside. The number of questions on the Internet on the topic “how to collect alimony” is equal to the number of requests “how not to pay it”. Elena Martynova, a family lawyer with 10 years of private practice, who is on opposite sides of the barricades, has collected 5 main mistakes that prevent parents from providing a decent life for their children.
It has long been known that any peace is better than war. In matters of alimony, this rule reflects the truth as best as possible, because both sides have one goal: a decent standard of living for children. However, most disputes are still referred to the court for resolution. And the reason for this is the unwillingness to pay alimony "on principle".
How often in court I hear the phrase: "Until she lets me communicate with the child, she will not see the money." And in response: "Yes, what a father he is, he did not buy a single toy for the child."
Of course, it is wrong to make the financial issue dependent on the mood of the ex-spouse, just like the father's love depends on the amount of alimony. And this mistake is made by both women and men.
Today, as a rule, alimony is collected from men in favor of children living with their mothers. Nevertheless, the trends are changing, fatherhood is becoming more conscious, and more and more often the courts transfer children to the upbringing of fathers with the assignment of the obligation to pay alimony to women mothers.
No matter what tricks the spouses do, no matter what fees they pay to lawyers, so long as nothing goes to the ex-spouse. Women are ready to deprive their fathers of parental rights and to manipulate the child in every possible way. Men are even more angry about this and the only leverage for them is the wallet.
And children suffer.
However, it is one thing to get a court decision, and another thing is to execute it. There are many levers of influence, but each of them can lead to a break in relations not only between the former spouses, but also between the child and the parent living separately.
Much depends on how successfully the former spouse took a defensive or offensive position: who quickly managed to get hold of strategic resources, who psychologically influences the child, who prepared in advance for the battle, provided reliable rear in the form of relatives, educators and friends. Sometimes the battle is not for life, but for death. And the parties no longer understand what they are fighting for. Therefore, the best way out of this situation will always be the voluntary signing of an agreement on the payment of alimony between the parents.
In accordance with Art. 80 of the Family Code of the Russian Federation, parents have the right to conclude an agreement on the maintenance of their minor children (an agreement on the payment of alimony) in accordance with Chapter 16 of the Family Code of the Russian Federation.
An agreement on the payment of alimony is concluded in writing and must be notarized. This provision guarantees their size not lower than that established by law. In it, both parties can write down their wishes regarding the upbringing of joint children, living and communication. And men are ready to increase the amount of alimony for the maintenance of children in return for agreeing with them their intended use. Such an agreement has the force of a writ of execution, which means the compulsory collection of funds in the event of failure to fulfill the obligations undertaken by one of the parents.
Complain about lack of money in the family
Every second wife in court accuses the former spouse of low income. This is not surprising, since financial claims are becoming the main reason for divorce. So, by devaluing your spouse's contribution to the family budget, through the prism of your expectations, and not his real merits, you are making a big mistake.
In accordance with Art. 83 of the Family Code of the Russian Federation “the amount of alimony is determined by the court, proceeding from the maximum possible preservation of the child's previous level of support”. That is, if in a complete family the children were fully provided for by the ex-spouse: they flew on vacation abroad 4 times a year, and even with their beloved nanny, the court will try to keep this level for the children even after the divorce, even if the official “white” salary of the ex-spouse is low …
If you are disingenuous in court, attributing the merits to “your parents,” “random fees,” “unknown sponsors,” and yourself, then the court will have no reason to impose a high amount of alimony. At least until the financial situation of the former changes. In accordance with Art. 83 of the Family Code of the Russian Federation, the court takes into account the financial situation of the party when appointing the amount of alimony, assesses the real possibilities of the ex-spouse to pay a high amount of alimony.
Your task is to prove the solvency of the child's father. That, being married, he provided children with serious material support, and without it, the situation of your child after the breakup of the family will noticeably deteriorate. Therefore, save your dissatisfaction with your husband's salary, do not discount his contribution to ensuring a high standard of living together, do not belittle his merits.
Hide their income
Until now, I often come across cases when women, when collecting alimony from their ex-husband through court, focus on their low income. They say that they cannot feed a child without the help of a spouse, and they are deliberately cunning. Many believe that the lower the income of the alimony recipient, the more they will be required from the ex-spouse to support their children. This is not true.
In accordance with Art. 80 of the Family Code of the Russian Federation, parents are equally obliged to support their minor children. In practice, judges regard the lack of income as a way to live off child support. And nobody will like it.
Both parents should be involved in providing for the life of their offspring. If this is impossible, the court has the right to raise the issue of transferring the upbringing of the child to a more wealthy parent. Also, going back to the previous point, the higher your income, the higher your child's standard of living. The more both parents should invest in ensuring this level, according to the judge. It makes absolutely no sense to hide your income.
Lawyer Elena Martynova Go to court at once
We talked about the peaceful settlement of the dispute in the first paragraph. If, nevertheless, a trial is inevitable, it is necessary to prepare for it in advance.
In accordance with Art. 12 of the Civil Procedure Code of the Russian Federation, justice in civil cases is carried out on the basis of the adversarial nature of the parties. This means that each party must prove the circumstances to which it refers as the basis for its claims and objections. In this case, the judge acts as an independent arbiter.
Therefore, before going to court, you need to carefully prepare for it. To begin with, send your spouse a pre-trial claim, in which you indicate the desired amount of alimony. Perhaps, thanks to this step, you will be able to avoid a lawsuit and agree peacefully (see paragraph 1 of the article). In any case, with such a letter you will fix the date from which the court will charge alimony in your favor.
Collect all documents related to the life of your child: receipts for payment of educational services, receipts for teachers, fees for matinees, gifts for teachers, spending on clothing, food, entertainment. If the child is seriously interested in some hobby: ballroom dancing, gymnastics, football, etc., bring photos, certificates, awards for achievements to the court. Doctors' recommendations, spa or massage referrals, sports clubs, medical treatment abroad, receipts for medications, everything should be carefully collected for the court.
And don't forget about your spouse's income. What salary did he indicate in the questionnaire when he took out a loan? And in the pictures in social networks from which beach is he waving his hand? Flies exclusively in business class? Use all sources of information: friends, acquaintances, relatives, social networks.
In the age of high technologies, the court accepts evidence on electronic media: SMS correspondence, dictaphone records, website pages, business accounts - all this evidence is on guard for child support.
Do not require alimony
This is perhaps the biggest mistake. This is not about when a parent pays voluntarily or otherwise participates in the child's life by agreement of both parties. It's about when they think that real money cannot be achieved: lack of work, irregular earnings, living in another country, etc. Or even worse, out of pride, they say, I can handle it myself.
I always remind my clients that this is the child's money, not yours. If you don’t want to spend them, put them in your account, at the age of 18 the child will decide for himself how to spend them. Today there is nothing to take from him, but tomorrow it will be, but for the past period you will not be able to collect, if you have not previously demanded them.
So, in accordance with Art. 107 of the Family Code of the Russian Federation, alimony is awarded from the moment of going to court. Alimony for the past period can be recovered within a three-year period from the moment of applying to the court, if the court established that, before going to court, measures were taken to receive funds for maintenance, but the alimony was not received due to the evasion of the person obliged to pay alimony from their payment …
In many foreign countries, alimony payments belong to children, so a parent with whom the child stays with has no right to refuse to receive alimony, even if his financial situation allows it.
It will not be difficult to write out a court order for the recovery of alimony. But you may have to make excuses to adult children for your inaction.
In any case, if you go to court, you have a chance to get money. If you do not apply, then even this chance is not there.
And in conclusion, I would like to remind you that according to the law, the maximum amount of alimony paid voluntarily by a written or oral agreement by a parent may be limited only by his desire and ability to provide a decent life. The collection method depends on the situation.
The reason for non-payment determines the further course of action.
The court, of course, will take into account the amount of the alimony payer's wages, the material and marital status of the parties. As well as other noteworthy circumstances that can be used as a tool for collecting alimony in an amount that corresponds not to the minimum subsistence level, but to the child's normal habitual standard of living.
A lawyer to help you!