How to calculate and receive a forfeit for alimony

2024 Author: Malcolm Clapton | [email protected]. Last modified: 2023-12-17 03:44

What you need to know in order to receive the child support payments required by law from the debtor.

The problem of collecting alimony ordered by the court for the maintenance of underage children is very acute. The bailiffs are inundated with writs of execution and court orders, and the state comes up with new ways to bring debtors to justice.

So, in August 2018, the Federal Law on Amendments to Articles 114 and 115 of the Family Code of the Russian Federation was adopted. According to it, when a debt is formed through the fault of a person obliged to pay alimony, the guilty person pays the Federal Law "On Amendments to Articles 114 and 115 of the Family Code of the Russian Federation" dated July 29, 2018 N 224-FZ to the recipient of alimony a penalty in the amount of 0.1% from the amount of unpaid alimony for each day of delay.

This additional measure of family legal responsibility existed before, however, it was 0.5%. In this regard, debtors accumulated huge debts, and the amount of the penalty could be 200% of the amount of the alimony itself.

Since August 2018, the penalty for alimony for the month is approximately 3%, and for the year - 36%.

So, in order for you to be charged a forfeit for alimony, previously collected by the court in your favor, but not received until now, you must complete the following steps.

1. Obtain an order from the bailiff with the calculation of the debt for the current date. Please note that alimony was indexed, that is, increased in proportion to the growth of the subsistence level established in your region by the Federal Law "On the subsistence level in the Russian Federation" dated 10.24.1997 N 134-FZ "On the subsistence level in the Russian Federation".
2. Make the correct calculation of the penalty.
3. Collect evidence of the debtor's evasion of its obligations to support the children: documents for tracing the debtor, a certificate from the employment center, photographs and testimony.
4. Submit an application to the court.

How to calculate the penalty for the arisen debt for non-payment of alimony from August 2018

In the event that the alimony debt was formed after August 10, 2018, the amount of the forfeit will be equal to 0.1% of the amount of unpaid alimony for each day of delay.

Each monthly maintenance payment has its own delay period. So, a January payment, for example, by September will have 8 months of delay (212 days): from February to September. And the February payment is 7 months late (184 days): from March to September. Consequently, the penalty should be calculated separately for each monthly payment.

We will make the correct calculation of the forfeit for an alimony payment in the amount of 10,000 rubles, levied from September 1, 2018 to the date of this writing, that is, February 2019.

So, if you did not receive a single ruble before February 1, 2019, you should calculate the penalty for the period from October 1, 2018 to January 31, 2019, for each month. You can file claims for the recovery of the received amount of the penalty to your ex-spouse in court from February 1, 2019 and within the 3-year limitation period.

1. We take the first monthly payment that you should have received in September, it is equal to 10,000 rubles. We multiply it by 0.1%, it turns out 10 rubles per day.

2. We count the number of days of delay in September payment: from 01.10.2018 to 31.01.2019 - 122 days.

3. We multiply the number of days of delay by the amount of the forfeit per day: 122 × 10 = 1,220 rubles.

Thus, the following formula is obtained: X × 0.1% × Y, where NS - the amount of alimony awarded to you, 0, 1% - the amount of the penalty established by law from August 10, 2018, Y - the number of days of delay in the monthly payment.

4. We make this calculation for each month. With each next month, the number of days of delay will decrease, therefore, the amount of the penalty will decrease.

5. We add up the penalty for all overdue months. We will get the total amount to be collected as a forfeit for the entire period of payments.

In our example, the delay in the October payment will be 910 rubles, the November payment will be 610 rubles, and the December payment will be 300 rubles.

The total amount of the penalty will be RUB 3,040.

How to calculate the penalty for the arisen debt for non-payment of alimony before August 2018

If the delay began earlier than August 10, 2018, the amount of the forfeit before this date is calculated at the rate of 0.5%, and the part of the debt formed after August 10, 2018 - at the rate of 0.1%.

So, for example, if alimony in the amount of 10,000 rubles was collected in your favor from January 1, 2018 to December 31, you did not receive a single ruble, you should make a calculation of the forfeit for the period from February 1 to December 31, 2018. You can submit claims for the recovery of a forfeit in court from January 1, 2019 and within the 3-year limitation period.

1. So, we take the first monthly payment that you should have received in January, it is equal to 10,000 rubles. We multiply it by 0.5% (the penalty established by law until August 9, 2018), we get 50 rubles a day.

2. We count the number of days of delay in the January payment: from 2018-01-02 to 2018-09-08 (since the amount of the penalty changes from August 10) - 189 days.

3. We calculate the amount of the forfeit at the rate of 0.5%: 189 × 50 = 9 450 rubles.

4. Next, we calculate the amount of the penalty from August 10, 2018. To do this, multiply the monthly payment (10,000 rubles) by 0.1%, we get 10 rubles a day.

5. We count the number of days of delay in January payment at this rate: from 2018-10-08 to 2018-31-12 - 143 days.

6. We calculate the amount of the forfeit at the rate of 0.1%: 143 × 10 = 1,430 rubles.

7. We add up the penalty for January 2018 for both periods: (189 × 50) + (143 × 10) = 10 880 rubles.

It turns out the following formula: (X × 0.5% × Y ') + (X × 0.1% × Y), where NS - the amount of alimony awarded to you, 0, 5% - the amount of the penalty established by law until August 9, 2018, 0, 1% - the amount of the penalty from August 10, 2018, Y’ - the number of days of delay in a monthly payment from the first month of delay until August 9, 2018, Y - the number of days of delay in a monthly payment from August 10, 2018 to the last month of delay.

8. We make this calculation for each month. With each next month, the number of days of delay will decrease, and the amount of the penalty will decrease.

9. We add up the penalty for all overdue months. We will get the total amount to be collected as a forfeit for the entire period of payments.

In our example, it turns out like this:

• delay in February - 9 480 rubles;
• for March - 7 930 rubles;
• for April - 6,430 rubles;
• in May - 4,880 rubles;
• for June - 3 380 rubles;
• for July - 1,830 rubles;
• in August - 1 210 rubles;
• for September - 910 rubles;
• for October - 600 rubles;
• for November - 300 rubles.

The total amount of the penalty will be 47 830 rubles. This is approximately 40% of the total amount of alimony for the year (120,000 rubles). All in all, you can get 167,830 rubles from the debtor.

Where to make a claim for the recovery of a forfeit

The penalty is collected by the court on the basis of the submitted application. The claim is filed in the magistrate's court at the address of residence (yours or the alimony payer).

The claim must be accompanied by a decision on the recovery of alimony (a court order or a notarial agreement on the payment of alimony), an order of the bailiff with the calculation of the debt, a child's birth certificate and the calculation of the forfeit. In duplicate, the set of documents is submitted to the court, on the third copy, put a mark on delivery.

The state duty is not paid.

When the amount of the forfeit can be reduced

The amount of the penalty for late payment of alimony may be reduced by the court, taking into account the material and / or marital status of the person obliged to pay the alimony, if the penalty payable is clearly disproportionate to the consequences of the violation of the obligation. These criteria are not established by law and remain at the discretion of the court. It can be assumed that if the forfeit is equal to or exceeds the amount of the debt itself, then the court will consider the forfeit disproportionate and will reduce it.

In addition, the debtor can apply to the court for full exemption from the payment of the forfeit.

The court will pay attention to the following circumstances:

• the state of health of the debtor and his family members;
• the presence of minor children and other dependents - for example, elderly parents;
• mortgages, loans, other debts and enforcement proceedings;
• salary and income calculation for all family members;
• any evidence of financial difficulties, high expenses and personal problems.

That is, the court will find out why the alimony debt appeared: due to deliberate evasion or disability, loss of the writ of execution by the employer or disability.

It is difficult to predict how much the court will reduce the penalty. A good lawyer can help you here.

What else can you count on

The recipient of the alimony is also entitled to recover from the debtor all losses caused by the delay in the payment of alimony, in the part not covered by the forfeit. For example, if a child needs an urgent operation and the person who is dependent on him is forced to take a loan from the bank to pay for it. In case of timely receipt of alimony, which would be enough to pay for treatment, the alimony recipient would not pay interest on the loan to the bank. Their court can consider losses caused through the fault of the debtor. But the court practice knows very little of such cases.

Do not forget also that at the request of a party to the dispute, the court may refuse to satisfy the claim (in whole or in part) for the recovery of a forfeit due to the omission of the limitation period (3 years), calculated separately for each overdue monthly payment.

If the debtor has completely disappeared and his place of residence has not been known for more than a year, he can be recognized as missing. Then the parent supporting the child will be able to apply for an insurance pension for the loss of the breadwinner from the state, receive fixed material assistance and land tax relief. Sometimes this is the best solution for your kids.

A lawyer to help you!