How to avoid alimony penalties, how to reduce alimony penalties: judicial practice

14.10.2018

Alimony debt, like any other, falls under the provision of a penalty, applied as punishment for untimely transferred payments. For the recipient, this is additional income. The penalty for alimony is calculated by day until the date of repayment of the entire debt. In case of partial repayment, the penalty will be charged from the balance.

When can you collect a penalty for alimony?

The right to collect a penalty for alimony arrears is provided by the following conditions.

• Actually arrears of alimony. A penalty, like a fine, is calculated specifically on the debt, and not on the monthly payment. The obligation to repay it is imposed on the payer under Art. 115 RF IC.
• Significant delay. The period for paying alimony is considered to be one month. The specific date of transfer is determined in an agreement of the parties or a court decision. The debt is formed from the first day following it when a payment is missed. But you shouldn’t immediately run to court; it is recommended to wait a few months - this will allow you to collect a more significant amount to cover legal costs and damages caused.
• Forced collection. The court for alimony penalty will satisfy the claim only if the alimony was initially assigned by its decision. The penalty for alimony under a voluntary agreement is calculated and repaid in accordance with its terms. If there is no such clause in the agreement, then it will not be possible to award a penalty. This norm is provided for in paragraph 2 of Art. 115 RF IC.

How to determine the amount of penalty for alimony

The above article of the RF IC determines the amount of the penalty for alimony. This is 0.1% of the outstanding amount. It is awarded for each day of delay. Below is an example of how to calculate alimony penalties.

Alimony penalty calculator:

With alimony of 5,000 rubles. (1/4 of earnings of 20,000 rubles) the penalty for late payment will be 5 rubles. per day or 150 rub. per month. With alimony of 15,000 rubles. the amount of the penalty is 15 rubles. per day or 450 rub. per month.  

It is precisely because of the small fines that it is recommended to go to court only in case of a long delay.

How to initiate collection of alimony penalties?

What penalty is due for alimony depends on its basic size and type of payments - voluntarily or through bailiffs.

The first option involves a clause in the agreement regarding a penalty in percentage or a fixed amount. In the second, the recovery is completely subordinated to the RF IC. This is done in court.

The size is mentioned above. The procedure for judicial collection involves filing a statement of claim justifying the following facts.

• Payer's fault. If no documents confirming the regular receipt of income by the alimony holder can be found, it is enough to indicate in the application his place of work. The court will make its own inquiries.
• Calculation of penalties for alimony. It is done in accordance with an agreement or law and is drawn up on paper - separately or in the text of the application.
• Actually debt. Its amount and period of non-payment are the basic elements of calculating the penalty. The claim must indicate both the amount of the debt and the period of non-payment.

Judicial practice on alimony penalties

Filing a claim does not guarantee its satisfaction. To impose a penalty, the court must establish the guilt of the debtor. Deliberate evasion of alimony payments is recognized on the basis of the following facts.

• Lack of contact with the payer. He deliberately does not communicate with the recipient and bailiffs, does not answer calls and notifications.
• Hiding the move. The cessation of alimony payments may be due to the relocation of the payer. He is obliged to inform the bailiff or alimony recipient about this fact.
• Deliberate concealment of income. Alimony workers often work without registration or under a gray scheme. The latter pay alimony only from their official salary. The rest of it remains entirely at their disposal. When filing a claim based on this fact, it is necessary to indicate the actual place of work, position and the amount of the payer's expected income.
• Debt for more than 1 month. It is not advisable to file a claim within a shorter period due to small fines.
• Voluntary dismissal and long-term unemployment. Many alimony providers practice this scheme as an escape from obligations. Working without registration in a new place gives them the opportunity to earn income without deductions.
• Deliberate avoidance of official employment. The reasons here are similar to the previous point. Collecting alimony penalties is difficult, as well as the principal debt.

When considering a claim for the recovery of alimony penalties, the judge takes into account all of the above circumstances. In addition, the payer has the right to initiate a claim for review of alimony and penalties for it.

It can act as counter or parallel.

 If non-payments are related to its consideration, then the court for alimony penalties will take into account this circumstance as mitigating and refuting the defendant’s guilt.

Why is the claim for a penalty rejected?

An application for the collection of alimony penalties is subject to satisfaction only if the debtor’s guilt is proven. But the court may find him not guilty due to the following circumstances.

• Ill health of the alimony worker or his dependents, requiring serious expenses for care and recovery.
• The emergence of new dependents. The birth of a child, relatives requiring care - this affects the budget and, accordingly, the ability to pay child support.
• The fault of the employer who delays payment of wages.
• An error by a bank or accounting employee when processing a transfer.

The establishment by the court of the above-described facts gives the right to reduce the alimony penalty or even refuse to pay it. Under the same circumstances, the payer may recalculate the amount of debt and cut monthly payments. If he correctly links the non-payments with the deteriorating financial situation and provides documents, then the claim for a penalty will be rejected.

Preparation of a claim for a penalty

The claim for alimony and penalties begins with the following procedures.

• Visit to the FSSP for a debt resolution. The calculation of the amount must be officially confirmed - a self-extracted debt is not enough.
• Calculation of penalties for alimony. It is made on the basis of the amount specified in the resolution by the bailiff.
• Collection of documents. The statement of claim for the recovery of alimony penalties is accompanied by supporting documents.
• Filling out an application.
• Registration of a claim in the magistrate's court. Its plot is selected according to the place of residence of one of the parties.

Documents for the statement of claim

The claim for alimony and penalties is made with copies of the following documents attached to the application.

• Passport of the plaintiff-recipient.
• Birth certificate of the child(ren).
• A court order or writ of execution for alimony (agreement on voluntary provision of a child).
• Resolution of the FSSP on the resulting debt and its specific amount.

The penalty for alimony - a sample calculation is presented in our article - may be reflected in the text of the application. It is not required to be drawn up on a separate sheet - the main thing is to make the calculation correctly and confirm it in documents with references to the above standards. Our website provides sample documents for collecting penalties.

Limitation period for alimony penalties

A penalty for alimony that has already expired can be filed for three years prior to going to court. In cases of alimony collection, the statute of limitations does not apply, that is, an application can be filed at any time.

The amount of debt, along with penalties, can be claimed through the court by an adult child. Three years is the maximum for which in 2018 you can receive a penalty for alimony, provided that the defendant has filed an appropriate application for a reduction in penalties. If such an application is not received by the court, then the three-year period does not apply.

How is a claim for a penalty processed?

Judicial practice on alimony penalties shows that no more than three meetings are sufficient to make a decision if all the necessary documents are available. There are no long breaks between them. The exception is when documents from archives and employers from another region are requested or the defendant files a counterclaim.

• Preliminary hearing. The court hears the parties and offers reconciliation - voluntary satisfaction of the plaintiff's demands.
• The actual review. It takes no more than three meetings.
• Decision on penalty for alimony.
• Issuance of a writ of execution.

Penalties for alimony are often encountered in judicial practice - writs of execution can also lie without movement, as well as for alimony themselves. It all depends on the position of the defendant. For some of them, the increase in debt and the award of punitive damages, unfortunately, does not matter.

It’s just that another unfulfilled sheet will appear in the FSSP database. The powers of the bailiffs are limited - they have the right to send a writ of execution to the place of work only if the defendant is officially employed.

Much attention is paid to searching for child support workers, but bailiffs do not have the right to force them to work, earn income and support children.

How to guarantee the collection of alimony penalties: from calculation to execution Link to main publication

How to avoid alimony penalties: is it possible to reduce the fine and cancel the court decision?

Delay in alimony payments by even one day gives the right to collect a penalty. Its size is determined by a notarial agreement between the claimant and the debtor, or by a court under Art. 115 RF IC. When collecting penalties, he must also have the right to defense, so he can try to reduce its amount. In this article, we will look at how to avoid alimony penalties and to what amount the penalties can be reduced.

Legal grounds

Article 115 of the Family Code of the Russian Federation is the main rule for calculating and collecting penalties and deciding on its reduction. The court will also take into account the provisions of Article 333 of the Civil Code of the Russian Federation, since it specifies the criteria for disproportionate sanctions. The penalty for alimony can be reduced on the following grounds:

• directly in court proceedings when collecting penalties, it is possible to present grounds for reducing penalties;
• after the judicial act is issued and the materials are transferred to the bailiff service, you can submit a separate petition indicating the grounds for the reduction;
• at any time you can agree with the collector to reduce the amount of the penalty, or negotiate a complete exemption from payment.

If the claimant (plaintiff) does not compromise and refuses to resolve the issue voluntarily, the court has the right to refuse to collect sanctions only for good reasons. If the fine is clearly disproportionate to the amount of the main alimony debt, or for other valid reasons, its size can be reduced.

If the case has reached the court, or the decision has already entered into force, grounds for reducing the pension under Art. 115 RF IC:

• obvious disproportionality of the main obligation for alimony to the amount of the calculated penalty;
• family and (or) financial status of the defendant (debtor).

We will talk about the criteria of disproportionality below, since they will be determined according to the Civil Code of the Russian Federation. The easiest way to challenge the amount of the fine is based on your financial or marital status. Judicial practice refers to the following circumstances:

• an increase in family composition, as a result of which new dependents appear (for example, minor children are born, alimony is collected from other family members);
• permanent or temporary loss of ability to work, as a result of which the debtor does not have income for his own subsistence (for example, if the debtor’s father has become disabled);
• loss of property due to natural disasters or emergencies; loss of a job due to forced circumstances, inability to find a job to resume child support payments.

Even under such circumstances, it will not be possible to completely get rid of the payment of debt and penalties. However, if you can confirm illness or other valid reasons under Art. 114 of the RF IC, you can try to completely cancel the penalty.

The concept of a disproportionate penalty

The rules of the RF IC do not define the disproportionality of a penalty, so the court will apply the RF Civil Code. Disproportionality means that the penalty obviously and much exceeds the amount of the main alimony debt. This situation is a violation of the payer's rights. The rules of disproportionality can be applied as follows:

• the debtor must declare disproportionality during the proceedings, since after the decision is made this is no longer allowed;
• if the debtor has not filed an application, the court cannot itself apply such a rule;
• disproportionality is a subjective factor, so the court is not obliged to grant the application.

For example, if the main alimony debt is only 1,000 rubles, and the penalty exceeds 50,000 rubles, the principle of disproportionality is obvious. If the debt and penalties are approximately equal in amount, the disproportionality is not confirmed.

It is quite difficult to prove the disproportion of the principal debt for alimony payments and the amount of penalties. The fine is 0.1% for each day of delay, i.e. 3% for the entire month of debt existence.

Sanctions are accrued until alimony is paid in full for each monthly payment. Therefore, only after 33 months the amount of the penalty will be equal to the amount of the debt, which is not recognized by judicial practice as disproportionate.

Therefore, to apply such a basis, the alimony debt must accumulate for a very long time.

How to challenge a decision on a penalty

To appeal the amount of alimony penalties, you need to know its amount. The plaintiff is required to submit to the court a calculation of the fine, and a certificate of the amount of alimony debt will be issued by the FSSP. The court will send a copy of the claim and the calculation of the fine to the defendant by mail. Copies can also be obtained from the case materials directly during the legal proceedings.

Where to contact

A petition to reduce the penalty can only be considered by the court. If enforcement proceedings have already been initiated, contacting the FSSP is useless. Depending on the grounds for reducing the amount of fine payments, you need to contact:

• to the court that is considering the plaintiff’s application (in this case, you can file a written objection to the collection of a penalty);
• to the court, which made a decision and issued a writ of execution.

When considering objections or petitions from the debtor, the court may reduce the percentage of the penalty or reduce the entire amount of the amount collected. Cancellation of a fine is allowed only on the grounds of Article 114 of the RF IC.

Objections to the claim can be filed in advance (by mail or through the court office) or presented directly at the hearing. A counter-calculation can be attached to the objections if a violation is identified in the final amount. It is advisable to seek help from a lawyer, since the burden of proving the grounds for canceling or reducing the penalty rests with the debtor.

What documents are needed

Oral objections alone will not be enough to challenge the amount of the penalty. To prove his position, the debtor can use the following documents:

• written objections (if a decision has not yet been made);
• counter-calculation of the amount of the sanction;
• a petition to reduce the amount of fine compensation if a decision is made and transferred to the FSSP for retention;
• documents on unsatisfactory property status (certificates of fire, dismissal, ITU conclusion on disability);
• documents on marital status (marriage certificate with a new spouse, certificates for children, etc.);
• other materials confirming the grounds for objections.

You will be able to determine the exact set of documents to go to court at a legal consultation. This is appropriate for any amount in dispute.

State duty

If objections to a claim for a penalty are filed before a decision is made, there is no need to pay a state fee. If the application is submitted after the decision has entered into force, you must pay a fee of 300 rubles, since the claim is of a non-property nature.

How to file a claim

An objection to the collection of a penalty can be made in simple written form. The document must indicate:

• information about the court hearing the case;
• information about the participants in the process;
• reference to the grounds for reducing the interest or penalty amount;
• link to evidence.

Objections are signed by the parent himself or his representative by proxy. You can also refer to valid reasons for non-payment of the principal alimony debt. If the debt is completely cancelled, you will not have to pay a penalty.

Sample application

If you submit a petition to reduce the penalty, the form and content of the document must comply with the Civil Procedure Code of the Russian Federation and the RF IC. The sample application must include the following items:

• name of the court;
• information about the applicant and the claimant (if the penalty is reduced after the child reaches the age of majority, his details as the defendant are indicated);
• details of the judicial act and writ of execution confirming the collection of the penalty;
• the amount of penalties unpaid at the time of application;
• reference to the grounds for reducing the interest or penalty amount;
• link to evidence;
• list of documents.

We recommend entrusting the drafting of the document to a lawyer or lawyer to avoid problems when considering the case. If the court returns the documents, you can file a private complaint.

Procedure and terms for consideration of the claim

There are no statutes of limitations for filing applications to reduce penalties. Naturally, if the entire amount of the fine has already been paid, the court will refuse to reduce it, since recalculation of alimony obligations is not allowed. The trial will take place according to the following rules:

• the debtor must prove the grounds for reducing the amount, since the court is not obliged to do this;
• consideration of cases cannot exceed 1 month if the dispute is within the jurisdiction of magistrate courts;
• if the petition is submitted to the district court, the period for consideration cannot exceed 2 months.

Even if you indicated in your objections or petition a requirement to reduce the penalty by a certain amount, the court is not obliged to agree with it. The final decision will be made after studying all the circumstances of the case and the arguments of the parties.

If you do not agree with the decision, you can appeal it to higher authorities. The complaint will be considered in appeal, cassation, and supervisory authority. You can challenge the refusal until the Supreme Court of the Russian Federation puts a final point in the dispute.

How to avoid paying a penalty

In order not to pay penalties for arrears of alimony, you can refer to the grounds under Art. 114 RF IC. These include illness of the payer or other valid reasons.

Another option to cancel the penalty is to cancel the amount of the debt itself.

Even after the child reaches the age of 18, the right to collect penalties for the last 3 years remains.

Going to court to cancel or reduce the amount of alimony penalties is a complex, but very real process. To count on a positive decision, you need to correctly formulate an objection or petition and present evidence. It is better to protect your interests in court with the support of an experienced alimony lawyer.

How to reduce alimony penalties, how to avoid penalties in 2023

› Family Law › Alimony › How to avoid alimony penalties or how to reduce alimony penalties in 2023

02/28/2022 531 views

This article will help the reader understand questions about how to reduce alimony penalties, as well as how to avoid alimony penalties.

Penalty for alimony

A penalty for alimony is the amount of money that the alimony payer must pay to the recipient in the event of a violation of the deadlines for making alimony payments.

How is the amount of the penalty determined?

Contractual penalty

When alimony is established by an agreement on its payment, the amount of the penalty for violating the deadlines for making alimony payments is determined by the parties voluntarily and is fixed in this agreement.

In order for an alimony agreement to have legal force, it must be drawn up according to the rules established by the RF IC and must be certified by a notary.

Legal penalty

In the absence of an agreement concluded between the parties, and alimony is established by a court decision, the amount of the penalty for violation of the requirement to make timely alimony payments is 0.1% of the amount of the debt, calculated for each day of such violation.

Calculation of penalties

The amount of the penalty is calculated based on the size of the debt, the period of delay and the established amount of the penalty as a percentage.

The formula for calculation is as follows:

Penalty = debt × % of penalty × number of days of delay

The calculation of the debt is carried out by the bailiff, the calculation of the penalty - by the collector.

How is alimony penalty collected?

If the payer violates the payment deadlines, the recipient may draw up and send him a written claim for payment of the penalty. If the payer fails to comply with the requirements specified in the claim, the dispute is subject to consideration in court.

Please note that the claim procedure is not mandatory for demands for payment of penalties for late alimony payments. Consequently, the recipient of alimony can immediately go to court. Disputes regarding the collection of alimony penalties are considered in the magistrate’s court at the place of residence of the alimony payer.

What can a payer do to avoid alimony penalties?

If the alimony payer has stopped making payments, having good reasons for doing so, then it is better for him to be the first to apply to the court with a demand for exemption from paying alimony or for a temporary deferment from paying it.

If the court considers the circumstances set out by the plaintiff to be worthy of attention, he will be released from the obligation to pay alimony, or he will be given a temporary deferment from paying it. This is guaranteed to save the payer from having to pay a penalty.

What circumstances can be considered valid by the court?

As judicial practice shows, when courts consider cases on claims for exemption from alimony payments, or to grant the payer a temporary deferment from their payment, the court takes into account the following circumstances:

1. Difficult financial situation of the payer;
2. The presence of other children or disabled family members whom the alimony payer is obliged to support;
3. Serious health problems resulting in the payer’s incapacity for work;
4. Employment of a minor child or carrying out entrepreneurial activities;
5. Other circumstances that may be considered worthy of attention by the courts.

What to do if the recipient filed a claim with the court to collect a penalty?

Algorithm of actions of the alimony payer

When the alimony recipient files a claim, the judge considers it and, if it fully complies with the norms of the current legislation of the Russian Federation, issues a court ruling, which, together with a copy of the claim, is sent to the defendant - the alimony payer.

Having received these documents, the recipient of alimony should:

1. Examine the statement of claim of the alimony recipient for the accuracy of the information and information contained therein, as well as the accuracy of the calculations made.
2. Competently draw up an objection to the claim, indicating in it the circumstances that led to the violation of payment deadlines, and a request to reduce the amount of the penalty, or file a counterclaim demanding exemption from paying alimony and the penalty for it.
3. Collect documents confirming the circumstances and information that the payer refers to in the objection to the claim or in his counterclaim.
4. Send documents to the court in advance or bring them to the court hearing.
5. Take part in the court hearing and express your point of view also orally.

Objection to the claim

If there are inaccuracies in the submitted claim, the information contained in it is untrue, the calculations of the amount of debt or penalty were made incorrectly, or the violations on the part of the payer were temporary and were committed for a good reason, then the defendant must draw up and file an objection to the court claim

The objection must contain a list of documents, with their copies, duly certified, attached. The objection is signed by the defendant or another person on the basis of a power of attorney.

Counterclaim

If there are compelling circumstances under which the court can exempt a person from paying alimony and penalties for it, it is better to file a counterclaim. A counterclaim is drawn up according to the rules established by the Code of Civil Procedure of the Russian Federation for drawing up an ordinary claim.

This document must contain: information about the court in which it is being filed; information about the plaintiff and defendant; information about the court decision or the agreement (agreement) on the basis of which alimony was established; a statement of the circumstances on the basis of which the plaintiff may be exempt from paying alimony. As well as facts confirming these circumstances, the plaintiff’s demands, a list of documents attached to the claim.

The counterclaim should be filed in the same court in which the statement of claim for the recovery of alimony penalties is filed.

What documents must be attached as evidence of extenuating circumstances?

The following documents may be attached to the objection to the claim or counterclaim:

1. Medical certificates confirming diseases that resulted in temporary disability;
2. Certificate of disability of the alimony payer or other disabled family members whom he is obliged to support;
3. Birth certificates of all minor children whom the payer is obliged to support;
4. Certificate from the employer about the amount of earnings (to confirm low income);
5. Other documents confirming the facts stated in the objection or counterclaim.

At any stage of the court case, both the plaintiff and the defendant can attract a competent lawyer who will not only advise on all emerging issues, but will also be able to collect and draw up all the necessary documents and act as a representative in court.

How to avoid alimony penalties or how to reduce alimony penalties in 2023 Link to main publication

Reducing alimony penalties. Denial of penalty

Penalty – recognized as determined by law or contract, which the debtor is obliged to pay to the creditor in the event of non-fulfillment or improper fulfillment of an obligation , in particular in case of delay in performance.

If a debt arises through the fault of a person obligated to pay alimony by court decision, the guilty person shall pay the recipient of the alimony a penalty in the amount of one-half percent of the amount of unpaid alimony for each day of delay. Very decent amounts!

It is worth noting that if the penalty payable is clearly disproportionate to the consequences of the violation of the obligation, the court has the right to reduce the penalty. But this rule does not apply to alimony penalties! We categorically disagree with this, and since October 2017, this rule has been canceled (more details about reducing the penalty on our forum). In order to reduce the amount of the penalty, it is necessary to work with the debt itself. If, in the absence of an agreement on the payment of alimony, after the amount of alimony has been established in court the financial or marital status of one of the parties has changed , the court has the right, at the request of either party, to change the established amount of alimony or to exempt the person obliged to pay alimony from paying it. When changing the amount of alimony or when releasing it from payment, the court also has the right to take into account other noteworthy interests of the parties.

In our case, Yakovleva Zh.V. Girl Dasha’s mother decided to file for a penalty in order to strengthen her position in the case of depriving her father of parental rights.

There is no doubt that the penalty is necessary for Yakovleva Zh.V. to propose a peace agreement - recognition by the party of the claim for deprivation of parental rights.

 In simple words, the father refuses the child - gives her the child and we part ways!

Penalty case pending in court

August 2017 the trials began. The statement of claim in its original form. We will talk about the penalty in the video review:

The case continues in court

September 2017. At court hearing No. 3, we announced our position to the court, of course, in writing and based on the materials of the individual entrepreneur, and the court could quite realistically make a decision today, but decided to call the bailiff to the court hearing. We have recordings of the conversation with the bailiff, if his testimony differs, that’s the question! More details about the 3rd court hearing in our video review:

October 2017. Court hearing No. 4 was postponed due to the failure of the bailiff to appear. The bailiff was summoned to court on the initiative of the court and must be questioned on the subject of the dispute.

We will not attach any documents before interrogating the bailiff; based on his answers, we will choose one or another tactic for conducting the entire case.

Let us remind you that in this example case we want to be denied a penalty! It is important that with the new amendments (July 2017), a break is announced at the court hearing and the case on the next appointed day is to be considered from the place where it was stopped earlier.

Court hearing No. 5 (October 2017), the bailiff came, could not explain anything intelligibly, because, according to him, he was recently given an IP and needed to review several questions. The meeting was rescheduled for the end of October 2017.

Court hearing No. 6 (October 2017), postponed, we are requesting documents. The meeting was rescheduled for mid-November 2017.

Court hearing No. 7 (November 2017). We provided all the documents, the court accepted partly and partly not. I didn’t reschedule the trial, which is partly good. The court’s decision was not forthcoming, we believe it will need to be appealed, since at least the trial was not postponed in order to eliminate the identified shortcomings, video review:

Well, at least the court partially granted the claim, let me remind you that in our opinion the court did not accept the key evidence, so we will appeal this decision. They asked for 900, they gave 330 thousand , the court reduced the amount of the penalty by 63% somewhere. Now the appeal will put an end to it, a full-fledged complaint has been filed, and we think we have accepted it. We think the hearing on the penalty in the appellate court will take place no earlier than May-June 2018.

to be continued!

What's new in the Family Code from August 10

Previously, each day of delay cost 0.5% per day. That is, 15% accumulated in a month, and almost 180% in a year. For comparison: for late taxes in the same amount you have to pay 0.02% per day.

As a result, alimony debtors accumulated huge debts, sometimes the penalty was several times greater than the amount of alimony. The courts believed that this was unfair and reduced it. But then the Supreme Court intervened and prohibited doing so.

After that, 3 million rubles in penalties could be charged for 200 thousand rubles in alimony. So it was possible to take the apartment to pay off the debt.

Now all debtors will be able to formally and on conditions understandable to everyone to ask for a reduction. Here's what will be taken into account:

1. Financial and marital status of the debtor. The ex-husband may have a new family with two more children plus a mortgage. A too large penalty for older children will violate the rights of younger ones.
2. Amount of penalty. It must be too large in relation to the debt itself - that is, disproportionate. For example, if you do not pay even a small amount of alimony for a long time, over several years the penalty may turn out to be tens of times greater than the debt.

If the penalty has accumulated due to the debtor’s illness or he has such difficulties that it is impossible to pay off, the penalty may not be paid at all. There must be good reasons for this, which the court will examine.

To get relief from the penalty, you need to file a claim: the penalty itself will not go away.

In judicial practice, the following valid reasons for exemption from alimony have been encountered:

1. the debtor was seriously injured and could not work;
2. got sick and was in hospital for rehabilitation;
3. received a disability;
4. turned out to be not his own father;
5. wages are delayed at work;
6. The accounting department did not withhold alimony payments or did not transfer them on time.

No. The old penalty will not be automatically reduced. For all alimony debts until August 9, a penalty will be charged at a rate of 0.5% per day. You can try to reduce it, but only through the court and if you can prove your difficult financial situation.

You cannot receive compensation for moral damages for alimony debts. And although ex-wives sometimes demand such compensation in lawsuits, the courts refuse them.

If the debtor disappears and does not pay, he can be declared missing, and the children will be paid compensation, which may be even more than alimony. All these measures are applied and working.

Penalty for alimony did not survive in the Constitutional Court of the Russian Federation

The Constitutional Court of the Russian Federation published Resolution No. 23-P/2017 in the case of verifying the constitutionality of the provisions of paragraph 2 of Art. 115 of the Family Code of the Russian Federation “Responsibility for late payment of alimony” and clause 1 of Art. 333 of the Civil Code of the Russian Federation “Reduction of penalties”. The following circumstances served as the reason for the appeal.

In 1997, the court issued a court order to collect alimony from a citizen for his minor child in the amount of 25% of his earnings.

Due to improper fulfillment of the duties assigned by the court and the formation of alimony arrears in the amount of almost 217 thousand rubles.

The applicant’s son, who has reached the age of majority, filed a claim with the court to collect a penalty for late payment of alimony in the amount of about 3.25 million rubles.

The claim was denied due to the fact that in 2014, information about the defendant’s paternity was excluded from the child’s birth certificate. However, the appellate court overturned this decision and issued a new one, satisfying the claims.

The court, referring to the explanations of the Presidium of the RF Armed Forces set out in the “Review of judicial practice in cases related to the collection of alimony for minor children, as well as for disabled adult children” dated May 13, 2015.

, proceeded from the fact that the decision to collect alimony had to be executed properly before the court decision to exclude paternity of the child came into force.

In addition, the appellate court, with reference to the Review of judicial practice of the Supreme Court of the Russian Federation for the third quarter of 2012, indicated that the features of alimony obligations exclude the possibility of applying Art.

333 of the Civil Code of the Russian Federation to the one arising in accordance with clause 2 of Art.

In his complaint, the citizen indicated that the provisions of the legislation he challenged contradict the Constitution of the Russian Federation, since, according to the meaning given to them by law enforcement practice, they exclude the right of the court, when considering a specific dispute, to reduce the amount of the penalty accrued for late payment of alimony for the maintenance of a minor child, if it is clearly disproportionate consequences of violation of this obligation, which, together with the difficult financial situation of the debtor, leads to an imbalance in the rights and legitimate interests of all minor children dependent on the debtor.

Having studied the materials of the case, the Constitutional Court of the Russian Federation recalled that in accordance with the Family Code of the Russian Federation, when determining the amount of alimony collected from a parent for minor children, changing its amount or exempting them from payment, the court takes into account the financial and marital status of the parties, as well as other factors worthy of attention circumstances or interests of the parties. This may be the incapacity of family members to whom the party is legally obligated to provide maintenance, the onset of disability or the presence of a disease that prevents the continuation of previous work, the child entering the workforce or engaging in entrepreneurial activity. The court also has the right, at the request of a person obligated to pay alimony, to release him in whole or in part from paying the debt if it finds that the failure to pay is due to the illness of this person or other valid reasons and his financial and family situation does not make it possible to pay off the resulting debt.

Such an approach, as noted by the Constitutional Court of the Russian Federation in Resolution No. 2091-O of September 29, 2016, is aimed at maintaining the previous level of child support to the maximum possible extent, subject to maintaining a balance of interests of minor children and their parents within the framework of alimony relations.

Also, the Constitutional Court of the Russian Federation noted that, according to Art. 2 of the RF IC, family legislation establishes the procedure for the implementation and protection of family rights, regulates personal non-property and property relations between family members - spouses, parents and children (adoptive parents and adopted children). A Art.

4 of the Code explains that civil legislation is applied to these property and personal non-property relations between family members that are not regulated by family law insofar as this does not contradict the essence of family relations. At the same time, by virtue of paragraph 1 of Art.

7 of the RF IC, citizens, at their own discretion, dispose of their rights arising from family relationships, including the right to their protection, unless otherwise established by the Code.

The exercise by family members of their rights and the performance of their duties must not violate the rights, freedoms and legitimate interests of other family members and other citizens.

333 of the Civil Code of the Russian Federation, which allows the court, when resolving a legal dispute, to reduce a penalty that is clearly disproportionate to the consequences of breach of obligation - based on the goal of ensuring a balance of interests of both parties to alimony legal relations, which underlies the legal regulation of the forced fulfillment by parents of the obligation to support their minor children - does not exclude the court’s obligations assess the validity of the amount of the penalty claimed for collection, i.e. in fact, its proportionality to the debt of the alimony-obliged person. In this case, exceptional circumstances affecting the rights and legitimate interests of other family members must be taken into account, including an assessment of the real income of the alimony obligee during the period of debt formation, since it is they who determine the material possibilities for exercising his rights and fulfilling the duties assigned to him, including maintaining himself and other members of his family who are dependent on him.

“Meanwhile, the established law enforcement practice indicates that courts of general jurisdiction, when resolving questions about the possibility of the court reducing the penalty for late payment of alimony in the event of its obvious disproportion to the consequences of violation of alimony obligations on the basis of the provisions of paragraph 2 of Article 115 of the Family Code of the Russian Federation and paragraph 1 of the article 333 of the Civil Code of the Russian Federation is based on the fact that these legal provisions do not imply the right of the court to reduce the penalty payable when a debt arises through the fault of a person obliged to pay alimony by court decision,” the Constitutional Court of the Russian Federation indicated. This, in his opinion, does not fully meet the constitutional requirements of maintaining a balance of interests of all participants in family legal relations, including those who also have the right to receive maintenance from the debtor, and, therefore, weakens the guarantees for the protection of their constitutional rights and freedoms, and therefore may lead to a violation of the principles of equality and the rule of law.

The Constitutional Court of the Russian Federation concluded that in connection with the execution of a court decision to collect a legal penalty in favor of an adult son in the amount calculated by the court without taking into account the provisions of paragraph 1 of Art.

333 of the Civil Code of the Russian Federation, the rights and legitimate interests of the applicant’s three minor children may be infringed, since when considering the dispute, the court did not take into account either the level of the debtor’s financial capabilities or the presence of other members of his family.

The Constitutional Court of the Russian Federation concluded that the disputed provisions are consistent with Part 3 of Art. 17 of the Constitution of the Russian Federation, which explains the principle of inadmissibility of such exercise of human and civil rights and freedoms, which violates the rights and freedoms of other persons.

It is also stated that, in their constitutional and legal meaning in the system of current legal regulation and taking into account the legal positions of the Constitutional Court of the Russian Federation, these provisions do not provide grounds for concluding that the court does not have the right, in the presence of noteworthy circumstances, to resolve the issue of the possibility of reducing the penalty payable upon formation debt due to the fault of the person obligated to pay alimony by court decision, if it is clearly disproportionate to the existing debt.

The court ruled that the constitutional and legal meaning of paragraph 2 of Art. 115 of the RF IC and clause 1 of Art. 333 of the Civil Code of the Russian Federation is generally binding and excludes any other interpretation in law enforcement practice. In this regard, the judicial acts in the applicant’s case are subject to review taking into account the position expressed by the Constitutional Court.

As Anna Minushkina, lawyer for the Moscow Administrative Office, noted, the Constitutional Court of the Russian Federation has previously repeatedly refused to accept such complaints for consideration. “I think that in the applicant’s case the balance of interests was clearly violated (challenging paternity, a large amount of the penalty, three children dependent on the applicant), as a result of which the complaint was accepted for proceedings by the Constitutional Court of the Russian Federation,” the lawyer believes.

She also noted that the Constitutional Court of the Russian Federation emphasized: the penalty collected under clause 2 of Art.

The lawyer clarified that the possibility of the courts reducing the penalty collected under clause 2 of Art. 115 of the RF IC, will not violate the rights of minor children: “The literal interpretation of the resolution excludes a reduction in the penalty for child support obligations in all such cases.”

Lawyer at Khazov, Kashkin and Partners Law Firm Evgeny Tarasov explained that the resolution of the Constitutional Court of the Russian Federation restores the balance of interests of participants in alimony legal relations. “The constitutional and legal meaning of Art.

115 of the RF IC in conjunction with paragraph 1 of Art. 333 of the Civil Code of the Russian Federation on the possibility of reducing the amount of the penalty for alimony obligations is fair, legally justified and complies with the Constitution of the Russian Federation,” the lawyer noted.

He added that he does not agree with the position of the RF Armed Forces on the special nature of the penalty under Art. 115 of the RF IC and the impossibility of applying Part 1 of Art. 333 Civil Code of the Russian Federation.

In his opinion, the RF Supreme Court approached this issue without due care: “Article 114 of the RF IC provides for the possibility of reducing alimony debt, taking into account circumstances worthy of attention.

So why is it impossible to reduce the penalty? Of course, it should not be arbitrary and mandatory in every case, which the Constitutional Court of the Russian Federation drew attention to, pointing out the need for a comprehensive study of specific circumstances.”

According to Evgeny Tarasov, the ruling of the Constitutional Court is revolutionary in the sense that the Constitutional Court of the Russian Federation set out a position directly opposite to the position of the Supreme Court of the Russian Federation and the judicial practice emerging on its basis.

“Judicial practice will now take a new path, and the task of the RF Supreme Court is to analyze the new provision and not just exclude the controversial explanation from the Review, but also show how to correctly apply paragraph 1 of Art.

333 of the Civil Code of the Russian Federation in alimony obligations,” the lawyer concluded.