Alimony arrears are formed when the established amount is not paid on time or when funds are transferred in a smaller amount than was provided for by the court decision.
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There is a need to calculate the amount of debt to recover from the defaulter. Consider how to properly implement this procedure.
The reasons for the emergence of debt obligations can be various factors and circumstances. It is generally accepted to divide reasons into valid and disrespectful. The final decision on the nature of the occurrence of circumstances is made by the judicial authority.
The most common causes of debt are:
The list is not exhaustive. Various life situations and circumstances can cause the formation of debt.
Regardless of the reason that served as the formation of the debt, it is necessary to correctly calculate the amount that the debtor will have to pay according to the statement of claim.
The calculation is within the competence of the bailiff, who is assigned the execution of the court decision on recovery.
On the basis of the submitted application, the bailiff carries out the calculation and acquaints the alimony claimant with it.
According to the provisions of the RF IC, as well as the Federal Law “On enforcement proceedings” There are three ways to calculate.
Let's consider them in more detail:
The first method is applicable if alimony is collected in solid monetary terms. Regardless of the income of the payer, the cost of living, which is established in the constituent entity of the Russian Federation, is taken as the basis for the calculation.
Depending on the circumstances, a special coefficient is assigned (for example, 0.6), which is multiplied by the size living wage. The resulting value will be the amount of maintenance deductions per month.
The formula for calculating child support debt for this method looks like this:
Since the cost of living changes every quarter, the bailiff needs to recalculate the amount of debt according to the change in this indicator.
In this case, two situations may arise:
In the first case, the amount of debt will be calculated according to the last value of the subsistence minimum.
In the second case, the amount of deductions must be indexed. What is it and how to implement indexing, we will consider below.
The second calculation method is applied if:
This technique also finds its use in the event that alimony is paid according to the shares of wages.
For the entire period during which no payments were made, bailiffs calculate the monetary debt based on the value of average earnings.
The share determined by the maintenance agreement or court decision must be multiplied by the value determined by the state average salary, after which the result is multiplied by the number of months in the billing period.
The third method of calculation is used when the debtor has official sources of income, but deductions for alimony were not made for any reason.
Under such circumstances, the bailiff needs to determine the sources of income from which it is possible to withhold financial resources for the maintenance of minor children.
After that, you need to subtract personal income tax and multiply the resulting value by the number of months in the period. Examples of calculation for each method will be considered below.
Consider how the bailiff calculates the amount of debt according to the level of the living wage.
Example #1. Pankratov S.I. lives in the Saratov region. According to the court decision, he needs to pay alimony for the maintenance of his 15-year-old daughter.
The court set the rate of monthly payments - 1.1 of the subsistence level in the region. Pankratov became obligated to pay alimony on February 1, 2013. From March 1, 2020, Pankratov stopped alimony payments for reasons unknown to the claimant.
Question. It is required to know the amount of debt for the period from March 1, 2020 to December 31, 2020 as of the end of the year.
Solution. For the Saratov region for 2020, the following values of the subsistence minimum were established:
In case of non-payment of debt for the period accepted for calculation without indexation, the last value of the subsistence level is taken, that is, for the 4th quarter.
Consider how the bailiff calculates the amount of debt based on the average salary.
Example #2. Matistov V.V. had to pay financial resources for the maintenance of a minor son by a court decision in the amount of a quarter of the level of income received. Alimony was due on October 1, 2013.
Until the end of 2013, Matistov regularly transferred funds, but from the beginning of 2020 he stopped paying. The bailiff has no information about Matistov's sources of income and the level of monthly income.
Solution. Medium wage for the first quarter of 2020 was 30,092 rubles.
Let's make the necessary calculations:
Consider how the bailiff calculates the amount of debt for monthly income debtor.
Example #3 Pankratov S.V. works in an organization and receives a monthly salary of 25,000 rubles.
According to the court decision, from May 1, 2020, a citizen must pay child support for the maintenance of his daughter in the amount of 25% of income.
However, deductions from the accounting department of the enterprise are not received, although the debtor works and receives a salary. Question. How to calculate the debt in this case for the period from May 1 to December 31, 2020?
Solution. For the calculation, we will perform the necessary calculations:
In order for the bailiff to draw up a calculation of the debt on maintenance payments, it is necessary to submit an application to the territorial bailiff service. The document can be drawn up in free form.
In order to avoid mistakes and correctly draw up an application, we recommend using our sample. You can download. After downloading, you can edit the document and substitute your own data.
The Family Code of the Russian Federation regulates that indexation is carried out in relation to alimony, which are collected in a fixed amount of money.
The percentage by which the amount of maintenance obligations should be indexed is calculated bailiff according to the living wage.
Let's look at an example of how alimony is indexed.
Example #4 Gorbunkov I.V., who lives in the Saratov region, by a court decision, must pay alimony in the amount of 1.4 of the subsistence minimum from March 1, 2013.
The citizen did not pay alimony from the beginning of their appointment until May 1, 2020. After that, payments started coming in. Gorbunkov did not repay the previously formed debt. Question. How to calculate the amount of debt, taking into account indexation for the given period?
The law provides equal obligations for parents to support their children, even if they are divorced. But the issuance of a court decision on the payment of alimony does not mean at all that the prescribed amounts will flow uninterruptedly to the recipient. The reason for the delay or reduction of established payments can be a variety of circumstances, from financial difficulties to the banal unwillingness to support your child. So over time, alimony debt is formed. How to calculate the amount due to be received, as well as the amount of the penalty? We propose to look into this issue in more detail.
Issues related to the payment of maintenance are regulated by the RF IC, more precisely Art. 107 this document. There are two ways in which spouses can come to an agreement after a divorce: by contract or by judicial recovery. If a written agreement is concluded between the parents, in case of violation of obligations, it will become the basis for opening court proceedings.
Judicial practice shows that the reason for non-payment of alimony does not always lie in the defendant's unwillingness to part with his finances. Due to some life circumstances related to illness or difficult financial situation, timely deductions become impossible. It is not uncommon for an accountant of an enterprise to make a mistake in calculating the amount, underestimating it.
Depending on the reason for the formation of debt, it is applied, determined by Art. 107 and 113 UK, term limitation period. According to the above articles, the deduction of the amount to be recovered can be made at any time before the child reaches the age of majority. It is allowed to assign alimony not only at the time of filing the application, but also for the previous period, which is limited to three years.
Important! The statute of limitations does not apply if the payment was not made due to the fault of the recipient. If the spouse deliberately concealed her whereabouts, she will not be able to claim backdated payments.
Whatever the reason for the debt on alimony, the payer is obliged to pay it
Bailiffs calculate the amount of debt in several ways:
The choice of methodology is individual and depends on the designated form of payment. Let's talk a little more about how the bailiffs calculate the debt for alimony. If the court decides to assign payments as a share of income, the data provided by the tax service, the payer himself or the accounting department will be taken into account. In the absence of such information, the calculation is carried out taking into account the current average wage. For cases when it comes to a certain amount of alimony, the subsistence minimum established by region is taken into account.
In accordance with FZ-229, child support payments are determined based on the defendant's total income. As a rule, if you have one child, this is a quarter of the salary, and if you have two, it is a third. When in former family there are three or more children left, the defendant has to send half of the earnings for their maintenance every month. If there are debts on payments, the amount can reach 70%.
If the defendant fails to confirm his income, the bailiffs have the right to use the scheme for calculating the debt on the average salary. Consider an example of how to calculate the amount of alimony arrears in this case. The court decision established that a citizen is obliged to deduct 25% of earnings as alimony. However, the demand was not fulfilled, and the payment was delayed by 5 months. Average level salaries in the Russian Federation adopted for February 2017 are 36 thousand 200 rubles. A quarter of this amount will be 9 thousand 50 rubles. This will be the amount of the monthly debt. The total amount will be 45 thousand 250 rubles.
This technique is applied to those cases where payments are determined by the court or are assigned in a fixed amount. When calculating the debt, the currently accepted indicator for the region is used, which is reviewed quarterly. Accruals are also subject to indexation, depending on the changes.
We give an example of such a calculation. Suppose the court determined the amount of debt at 1.5 living wages. The defendant evaded payment for 9 months. At the time of recalculation, the level minimum income reaches 9 thousand 957 rubles. Based on this indicator, the amount of debt will be 89 thousand 613 rubles.
If the payer is officially employed, but did not make payments on time for any reason, the bailiffs calculate the debt taking into account income. In this case, all possible income items are taken into account:
It should be noted that the recovery of alimony cannot be applied to unemployment benefits.
Note! First, from the earned funds, a deduction is made to the treasury, that is, personal income tax is paid. The remaining amount is multiplied by the number of months.
Alimony debt is calculated depending on the procedure for collecting payments
Often there is such a situation that the parent is not employed and does not fulfill the obligation to pay maintenance for the child. In this regard, let us explain how the alimony debt is calculated if the debtor does not work. In this case, the method of calculating the amount of the average salary or in a fixed amount is also used. Only the court can set the minimum amount. However, after the payer finds a job again, the recipient can apply with a larger amount of payments.
A parent raising a child after a divorce has the opportunity to demand money from the former spouse for his maintenance. In this case, accruals can be made taking into account the statute of limitations. This is possible if there is no written agreement between the parties on the maintenance of the child, and the plaintiff himself made any attempts to obtain Money.
Note! The defendant may well prove that he carried out the maintenance of a minor child all this time if he presents checks or transfers.
Alimony must be paid regardless of your employment status.
The bailiffs carry out the calculation of debts for alimony for the past period after the court verdict is issued. The amount of the payment determines the amount of the debt, to which 0.5% penalty is added for each day of delay. This also includes execution costs, which are 7% of the accrued payment.
The procedure for collecting a debt depends on how it was formed. On the basis of the writ of execution, the SSP determines the income of the payer, after which a notice of the need for collection is sent to his main place of work. If the debts were already formed during the enforcement proceedings, since the money was not transferred on time or in a smaller amount, you need to contact the bailiff involved in this case directly.
Performers, in the absence of money in the accounts of the defendant, may seize the property, with a view to its subsequent sale to pay off the debt. In addition, the defaulter is limited in the right to travel abroad. When the SSP does not take sufficient measures to ensure effective collection, the recipient applies to the justice of the peace, having documents in his hands indicating the amount of the debt. The court determines the measures to ensure the receipt of funds. The amount of monthly payments can also be increased.
The objective impossibility of paying off alimony debts may well become a reason for reducing the amount of debt or its complete elimination. Usually, the amount of the payment is reduced if the claimed penalty does not match the income level of the payer. Moreover, a citizen has the right to challenge the amount of deductions through the court if the specified amount significantly affects his financial situation.
To achieve the cancellation or reduction of penalties, you need to provide documentary evidence of the impossibility of repaying the debt. These include certificates of illness, composition new family(if there are other children). The application is sent to the magistrate's court, which will make the final decision if the parties fail to agree. The decision must be handed over to the bailiff who is involved in the recovery. Based on it, the amount of the debt will be adjusted. The courts accept for consideration not only documentary evidence, but also the testimony of witnesses.
The law provides for the obligatory fulfillment of obligations for alimony. Their non-fulfilment entails the forced collection of debts. Withdrawal measures apply not only to the income and bank assets of the payer, but also to his property. For persistent non-payers Art. 157 of the Criminal Code provides for more severe punishment associated with deprivation of liberty.
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Any parent living with a child has the right to receive maintenance for his maintenance from the second - mother or father. But if the court ordered him to pay, but there are no transfers or they do not reach the indicated amount? How can I find out the debt?
Dear readers! The article talks about typical ways to solve legal issues, but each case is individual. If you want to know how solve exactly your problem- contact a consultant:
APPLICATIONS AND CALLS ARE ACCEPTED 24/7 and 7 days a week.
It's fast and IS FREE!
The Family Code of the Russian Federation states that alimony is funds allocated for the maintenance of a minor child. They can be transferred in various - agreed in advance - periods of time.
The amount may vary - depending on changes in the debtor's income or due to an increase in the subsistence level, if the payment is assigned in hard cash.
So, the payment period may be different, but the funds must be transferred within the specified time frame. A good reason for their absence can only be the termination of income - for example, upon dismissal from work, if alimony is assigned as a share of earnings.
If a person continues to receive income, but does not make transfers, his debt grows.
Such an unscrupulous payer risks:
To solve the problem, the recipient of alimony can choose one of the options:
Do not forget that the debtor may have made a calculation.
The calculation of the amount of debt can be carried out by the following persons:
The calculation is carried out in the following order:
The requirement to calculate the amount of debt should be presented in a certain form.
Child support debt can be calculated in a variety of ways.
The calculation method is chosen depending on the form of payment of alimony:
So, alimony must be paid in a fixed amount of money. Its size is set by the court as a multiple of the subsistence level in force in the country at a particular point in time.
This amount should be automatically indexed - after all, the indicator periodically increases - 1 time per quarter.
Accordingly, the amount to be transferred each quarter will be different. Therefore, bailiffs calculate alimony by periods - quarters.
But this situation is possible if the payer makes deductions more or less regularly. Otherwise, the debt will be calculated based on the level of the subsistence minimum at the time of the last transfer.
The choice of the subsistence level is made when a court decision on the recovery of alimony is made. That is, for various cases, options are possible - either it will be the federal level, or - regional, which is fixed in writ of execution.
As a rule, this is the calculation of alimony arrears for non-working citizens, whose financial situation at the time of consideration of the alimony claim was fragile and remains so at the moment.
The calculation of alimony arrears in accordance with the level of average wages is carried out when the payer does not have officially confirmed income.
For example, he opened his own business, receives income in kind. Sometimes a person simply does not officially get a job.
Then, if the writ of execution reflects the form of payment in shares of income, then the average wage in Russia will be taken into account.
The calculation according to this method is made according to the same wage indicator that is valid at the given time when the recipient of the alimony applied.
Since the form of payment is a share of income, the corresponding part of the average will be taken:
There is a List of types of earnings and income from which alimony can be collected. This is established by the Government of the Russian Federation ().
If the debtor has official income - wages or is an entrepreneur and reports income to tax authorities, then the calculation for the period of non-payment will be based on the amount of money earned.
Income tax individuals when calculating, it is taken into account, that is, the amount of income to be calculated is taken minus it.
There is a nuance - if the payment could not be made for reasons beyond the control of the debtor, then it is impossible to collect alimony for this period.
In the case when there were no transfers due to the fault of the payer, after 3 years the limitation period will expire - if it is not possible to receive the debt. That is, after that it will be impossible to recover any amounts.
Video: child support defaulters
Example 1
In the writ of execution, the father is obliged to pay alimony from January 1, 2020. The amount of deductions is 2 subsistence minimums in Sverdlovsk region. Alimony was not paid from the 1st quarter of 2020 to August 2020.
The calculation will be like this:
Example 2
Alimony must be transferred from February 2013. The amounts were not received in January and February 2020, as well as in March 2020. The writ of execution indicates the level of the subsistence minimum in the Moscow Region, the size is 1.5.
The calculation will be like this:
The amounts were periodically transferred, that is, bailiffs will pay attention to the cost of living in a particular quarter:
We calculate:
Example 3
The court ordered the payment of alimony from 2012 for two children in shares of income. My father made transfers until 2020. No funds were received from February to August. The application for payment was submitted in August 2020.
The calculation will be done as follows:
Definition of required indicators
In August 2020 average earnings in Russia amounted to 27339 rubles. Debts accumulated over 7 months. Two children are supposed to transfer a third of the income.
The total debt will be:
27339 x 1/3 x7 = 63791 rubles.
Example 4
The father must pay alimony for 3 children, that is, 50% of the income should be directed to their maintenance. Obligations arose from July 2020.
For the period from July 2020 to August 2020, the payer did not change his place of work, his official salary was 24,000 rubles per month. No contributions were made between April and July 2020.
The calculation will be like this:
After the calculation of the debt, the bailiffs issue a decision, which is received by both parties - the recipient and the payer of alimony. If it seems to the debtor that the calculation was made incorrectly, he has the right to challenge it.
The appointment of maintenance payments by the court or the signing by the child's parents of an agreement on the payment of alimony is not a reliable guarantee that the child will regularly receive maintenance payments for his maintenance until reaching the age of majority. Due to a number of circumstances, personal unwillingness of the father or mother of the child, payments can be made in violation of the regular monthly schedule and in smaller amounts than was established by the court or the contract. Also, in practice, there are situations when deductions for the maintenance of a child stop altogether.
Arrears in child support payments may arise in cases related to non-payment of alimony or the transfer of alimony amounts in smaller amounts than established by a court order, alimony agreement or a court decision in a family dispute. There are many reasons for such situations:
In each of these and many other cases, the determination of maintenance debt is regulated by the relevant chapter and article of the Family Code. Russian Federation, as well as federal law"On Enforcement Proceedings" and a number of other regulatory legal acts of the Government of the Russian Federation.
The calculation of arrears in maintenance payments for the maintenance of a child is provided by the bailiff service, in the enforcement proceedings of which the case for the recovery of maintenance amounts is located, or the accounting department of the enterprise, which makes deductions of maintenance for the child from the debtor's salary.
After the necessary action according to the calculation of the debt of alimony payments, the bailiff is obliged to issue an appropriate decision, which is sent to the payer and recipient of alimony payments, as well as to the accounting department at the place of work of the alimony payer. The bailiff is subsequently obliged to check the correctness and timeliness of the implementation of maintenance deductions for the maintenance of the child from the debtor's earnings.
To find out the debt on alimony, the payer can:
The methods for calculating debts for maintenance payments are based on the norms of Articles 113 of the Family Code of the Russian Federation and 102 of the Law “On Enforcement Proceedings”. According to the norms of these articles, there are three main methods for calculating arrears in maintenance payments:
The first method is used in cases where maintenance payments are assigned on the basis of a special agreement between the parents of the child or are appointed by the court in a fixed amount of money. Regardless of the income of the alimony payer, the calculation of the amount of debt for alimony payments is based on the cost of living indicator established by the government every quarter. The specific amount of mandatory monthly maintenance deductions is calculated in multiples of this indicator and depending on specific circumstances, for example, 0.75 of the subsistence minimum.
The bailiff calculates the debt for alimony payments every quarter with a change in the cost of living. At the same time, if the payment of alimony for the maintenance of a child was not made by the debtor, then the amount of debt on alimony payments is calculated each time based on the last value of the subsistence minimum. In those situations where the alimony payer makes payments regularly, when the subsistence minimum indicator changes, the amount of monthly alimony deductions is indexed.
Monthly maintenance payments in the amount of 1.5 living wages have been established since January 01, 2013. The bailiff, who calculates alimony on September 30, 2013, receives data from Rosstat on the subsistence minimum, which in the III quarter of 2013 for a particular region is 6432.00 rubles. To calculate the debt on alimony payments, the bailiff uses the following formula:
The amount of debt on alimony payments \u003d (1.5 x 6432.00 rubles) x a specific period of non-payment of alimony (9 months) \u003d 9648.00 rubles x 9 months \u003d 86832.00 rubles.
The second method of calculating alimony arrears is used in cases where the alimony payer for a certain period does not have documentary evidence of the specific amount of income received by him or if the debtor did not receive income in an official way.
In addition, the second method for calculating the amount of alimony debt is applied in cases where the debtor is individual entrepreneur and refuses to provide the bailiffs with their primary financial records.
This calculation procedure is used when establishing maintenance payments as a percentage of the debtor's earnings. The debt calculation mechanism is the same as in the first method. For the entire period during which child support payments were not made, accruals bailiff are carried out on the basis of the indicator of average earnings, which is valid at the moment. At the same time, from the indicator established by the government, the share established by the maintenance agreement or the court is calculated, which must be sent monthly to support the child, after which the amount of maintenance payments is multiplied by the number of months for the billing period.
An example of calculating debt using the second method
The value of the average wage in the Russian Federation for the I quarter of 2013 is 27339.40 rubles. Alimony payments for a child in the amount of 1/4 of the income of the father of the child were appointed by the court from June 1, 2012, however, the debtor did not provide the bailiff service with any maintenance payments or data on his earnings. Based on the circumstances of the case, the bailiff on February 1, 2013 calculated the debt using the following formula:
Amount of alimony arrears \u003d Amount of monthly alimony deductions (27339.40 x 0.25) x number of months of the billing period (8 months) \u003d 6834.85 rubles x 8 months \u003d 54678.80 rubles.
The third method of calculating the maintenance debt is used in cases where the maintenance payer has official sources of income, however, he did not make maintenance payments for a certain period of time.
The bailiff, in accordance with the List of types of earnings and income, approved by Decree of the Government of the Russian Federation of July 18, 1996 No. 841, from which maintenance payments for minor children are withheld, determines the debtor's sources of income from which alimony should have been withheld. Then the bailiff subtracts the mandatory deductions of personal income tax (13%) from this amount and multiplies the amount received by a specific number of months in the estimated time period.
An example of calculating debt using the third method
The court assigned maintenance payments to the employee from March 1, 2013 in the amount of 1/3 of his income. According to the documentation of the tax service and the documents of the debtor's employer, the employee's monthly salary is 35,000 rubles, including the bonus and salary according to the position. In the period from March 1 to October 1, 2013, the enterprise did not make maintenance deductions. The bailiff will calculate the debt according to the following formula:
35,000.00 rubles - 13% = 30,450.00 rubles (earnings after taxes).
30450.00 rubles x 0.33 = 10048.50 rubles (the amount of monthly maintenance payments).
10048.50 rubles x 7 months = 70339.50 rubles (debt for the billing period).
Exemption of the debtor from the payment of arrears on alimony
The alimony payer may apply to the court for relief from the debt (full or partial) in the presence of one of the following circumstances:
- Illness of the debtor.
- Severe family or financial situation debtor that prevents him from fulfilling his obligations.
The judge decides on the release of the debt, if he considers the evidence provided sufficient and convincing.
