Yelena Martynova
Lawyer Family Court.
The problem of collecting court-ordered child support for the maintenance of the minor children is very serious. Bailiffs overwhelmed with the writ of execution and court orders, while the state comes up with new ways to attract 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. According to him, during the formation of the debt due to the fault of the person obliged to pay alimony, the guilty person shall payFederal Law "On Amendments to Articles 114 and 115 of the Family Code of the Russian Federation" dated 29.07.2018 N 224-FZ the recipient of alimony penalty amounting to 0.1% of the amount of unpaid child support for each day of delay.
This extra measure of family liability existed before, but was 0.5%. In this regard, the debtors have accumulated huge debts, and the amount of penalty could amount to 200% of the amount of the alimony themselves.
Since August 2018 the penalty for child support in the past month is about 3%, and for the year - 36%.
So you have added to the penalty for child support, previously charged by a court in your favor, but it is not received so far, the following steps.
- Contact the bailiff ruling calculation of debt to date. Pay attention to maintenance have been indexed, that is increased in proportion to the size of the living wage established by law in your areaFederal Law "On the subsistence minimum in the Russian Federation" dated 24.10.1997 N 134-FZ "On the subsistence minimum in the Russian Federation."
- Make the right calculation of the penalty.
- Gather evidence of evasion by the debtor its obligations under the maintenance of children: Documents to trace the debtor, certificate of employment center, photographs and testimony.
- Apply to the court.
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How to calculate the penalty for failure to pay has arisen debt for maintenance from August 2018
If the debt of alimony was formed after the August 10, 2018, the amount of penalty will be equal to 0.1% of the amount of unpaid child support for each day of delay.
Each monthly alimony payments your period of delay. For example, the January payment, for example, in September will have a delay of 8 months (212 days) from February to September. And the February payment - 7 months of delay (184 days): from March to September. Therefore, the penalty should be calculated separately for each monthly payment.
Make the right calculation of the penalty for alimony payments in the amount of 10 000 rubles to be raised from 1 September 2018 to the date of writing of this article, that is, on February 2019.
For example, if prior to February 1, 2019 you have not received a penny, you should make the calculation of damages for the period from October 1, 2018 till January 31, 2019 First, for each month. the resulting amount of the claim for a penalty, you can show the former spouse in court on 1 February 2019 and within a 3-year period of limitation.
1. Take the first monthly payment, which you should have received in September, it is 10 000 rubles. Multiply it by 0.1%, turns 10 rubles per day.
2. Count the number of days of delay in payment of the September: from 01.10.2018, the on 01.31.2019, the - 122 days.
3. Multiply the number of days delay in size penalty per day: 122 × 10 = 1220 rubles.
Thus, the following formula is obtained: X × 0,1% × Ywhere X - the amount awarded to you alimony, 0,1% - the size of the penalty prescribed by law from 10 August 2018, Y - the number of days past due monthly payment.
4. We are doing this calculation for each month. With each month, number of days delay will decrease, and hence the amount of penalty will decrease.
5. We add up the penalty for all overdue months. We get the total amount to be recovered as the penalty for all time payments.
In our example, the failure of the October payment will be 910 rubles, November - 610 rubles, December - 300 rubles.
Total size of the penalty will be 3040 rubles.
How to calculate the penalty for non-payment of the debt has arisen alimony until August 2018
If the delay start before August 10, 2018, the amount of penalty before that date shall be calculated at the rate of 0.5%, as part of the debt, formed after the August 10, 2018-th - at 0.1% rate.
For example, if in your favor recovered child support in the amount of 10 000 rubles from January 1, 2018 and up to 31 of December you have not received a penny, you should make the calculation of damages for the period from February 1 to December 31, 2018 of the year. The requirements for the recovery of a penalty you can present in court on 1 January 2019 and within a 3-year period of limitation.
1. So, take the first monthly payment, which you should have received in January, he was equal to 10 000 rubles. Multiply it by 0.5% (the statutory penalty until August 9, 2018), received 50 rubles a day.
2. Count the number of days of delay in payment of the January: from 02.01.2018, the on 09.08.2018, the (Since August 10 varies the amount of penalty) - 189 days.
3. The fine resolution at a rate of 0.5%: 189 × 50 = 9450 rubles.
4. Next, count the amount of penalty to August 10, 2018-th. To do this, multiply the monthly payment (10 000) of 0.1%, obtained 10 rubles per day.
5. Count the number of days of delay of the January payment at this rate: from 10.08.2018, the on 31.12.2018, the - 143 days.
6. We expect the amount of penalty at the rate of 0.1%: 143 × 10 = 1430 rubles.
7. Fold penalty for January 2018 for both periods (189 × 50) + (143 × 10) = 10 880 rubles.
The following formula: (X × 0,5% × Y ') + (X × 0,1% × Y)where X - the amount awarded to you alimony, 0,5% - the size of the penalty prescribed by law until August 9, 2018, 0,1% - the amount of the penalty to 10 August 2018, Y ' - the number of days of delay in monthly payments from the first month of delay until August 9, 2018, Y - the number of days past due monthly payment from 10 August 2018 until the last month of delay.
8. We are doing this calculation for each month. With each month of the number of days of delay will decrease and the amount of penalties - to decline.
9. We add up the penalty for all overdue months. We get the total amount to be recovered as the penalty for all time payments.
In our example, it turns out:
- delay for February - 9480 rubles;
- March - 7930 rubles;
- April - 6430 rubles;
- May - 4880 rubles;
- June - 3380 rubles;
- July - 1830 rubles;
- August - 1210 rubles;
- September - 910 rubles;
- October - 600 rubles;
- November - 300 rubles.
Total size of the penalty will be 47 830 rubles. This is about 40% of the total amount of alimony for the year (120 000 rubles). All in all, can be obtained from the debtor 167 830 rubles.
Where to bring a claim for recovery of penalties
The penalty shall be collected by the court on the basis of submitted application. The lawsuit served in the magistrate's court at the address of residence (or your alimentoplatelschika).
To suit is necessary to make a decision on alimony (a court order or an agreement to pay the notary alimony), a bailiff with the calculation of the debt, child's birth certificate and calculation forfeit. The duplicate set of documents submitted to the court, in the third instance of the checkbox to surrender.
Stamp duty is not paid.
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When the amount of the penalty can reduce
size penalties for late payment of maintenance can be reduced in view of the court material and / or family status of the person obliged to pay alimony if payable penalty manifestly disproportionate to the consequences of the breach commitments. These criteria are not set by law and remains at the discretion of the court. We can assume that if the penalty is equal to or exceeds the amount of the debt itself, the Court considers disproportionate penalty and reduce it.
In addition, the debtor may apply to the court for full exemption from its penalty payment.
The court will pay attention to the following circumstances:
- the state of health of the debtor and his family;
- the presence of minor children and other dependents - such as elderly parents;
- mortgage, Loans, other debts and enforcement proceedings;
- salary and calculation of income for all household members;
- any evidence of financial difficulties, high costs and personal problems.
That is, the court will find out why there was a debt of alimony: Due to intentional evasion or disability, loss of a writ of execution by the employer or disability.
How the court to reduce the penalty is difficult to predict. Here you can help a good lawyer.
What else can you expect
alimony recipient is also entitled to collect from the debtor all the losses caused by the delay of payment of alimony, to the extent not covered by the penalty. For example, if your child needed urgent surgery and the person on whom he is dependent, it is forced to take to the bank credit for its payment. In the case of the timely receipt of child support, which would be enough to pay for treatment, alimentopoluchatel would not have to pay the bank interest on the loan. Their court may consider the losses caused by the fault of the debtor. But such cases jurisprudence knows very little.
Do not forget also that the application of a party to the dispute, the court may dismiss the claim (full or partial) of the a penalty due to the passage of the limitation period (3 years) is calculated at each overdue monthly separately payment.
If the debtor has completely disappeared and his place of residence is unknown for over a year, it can be considered as missing. Then the parent containing child will be able to issue insurance survivor's pension from the state, receive a fixed financial aid and exemption from the land tax. Sometimes the best solution for your children.
Lawyer to help you!
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