Sample statement of claim for divorce, collection of alimony for a minor child and alimony for the maintenance of an ex-wife

Where to apply

Having decided on jurisdiction, it is necessary to deal with the issue of jurisdiction, i.e. determine the place where the trial will take place. To do this, you need to use the following legal rules:

1. The interested party must file a claim document with the judicial authority located in the same locality in which the defendant is registered.
2. However, a plaintiff who intends to divorce the defendant and collect child support payments from him may draw up a petition to change jurisdiction and submit it to the court at his place of residence. In the petition, he must write a valid reason why he asks to transfer the proceedings to his place of residence. These reasons include the plaintiff’s severe or chronic illness, for example, tuberculosis or kidney failure, and the maintenance of a minor citizen who cannot be left unattended.
3. In addition, the parties to the divorce process can independently determine the city and judicial body in which they plan to resolve their differences. The agreement must be secured in writing.

How to sue for alimony (methods of appeal)?

As mentioned above, you can collect alimony by going to court either with a statement of claim or with an application for a court order. Claim and writ proceedings in this category of cases have their own characteristics.

Application for a court order to collect alimony

It is easier and faster to collect alimony payments through a court order. The advantage of writ proceedings is that the presence of both parents in court is not required.

To apply, you must prepare an application and a package of documents. After consideration of the case, a court order is issued, the execution of which is monitored by the bailiff service.

However, there are some restrictions with this method of collecting alimony payments:

1. The amount of alimony will be assigned as a share of the payer’s earnings. Sometimes transferring a fixed amount is better for the child, but this cannot be achieved through writ proceedings.
2. The procedure is suitable if it is necessary to collect child support for children under 18 years of age. If the child is an adult, but incapacitated, you will have to apply to the district (city) court with a statement of claim. Also, in the order of writ proceedings, requests for payments for the maintenance of a parent who is raising a child are not considered.
3. This method is not suitable if the payer’s rights to alimony are contested.

For more information about the ordering procedure and drawing up an application, read the article “Application for a court order for the collection of alimony (instead of a statement of claim).”

Claim for alimony

In the cases listed above, you should file a claim with the court.

Claim proceedings are complex and multi-stage. In order to resolve all controversial issues, both parents take part in the consideration of the case.

The claim is filed in almost the same way as an application for a court order. The parties to the case are called the plaintiff and the defendant. Here it is necessary to indicate exactly what violations of the plaintiff’s rights exist.

If difficulties arise with the registration, use the services of a lawyer who will help you competently draw up a claim and collect the necessary documents.

For more information about the claim procedure and the requirements for filing an application, read the article “Claim for the recovery of alimony: features of drafting.”

Contents of the statement

According to Russian legislation, filling out a statement of claim must be carried out according to the template established by regulations. Any claim document contains three semantic parts:

1. The upper part or, in other words, the “cap”. It contains the following information:
   The name of the judicial authority to which the applicant is sending his claims.
2. Personal information about the plaintiff, including his last name, middle name and first name, contact information, for example, telephone, email, and his residential address.
3. Personal information about the defendant, including his last name, middle name and first name, contact information, for example, telephone, email, and his residential address.
4. Descriptive and motivational part. It states:
   Information about the time and place of the official marriage of the defendant and the plaintiff.
5. Availability of children and details of documents confirming the fact of their birth.
6. Reasons why spouses want to end their family relationship.
7. There are disagreements about the future fate of the children. For example, this may be the disagreement of one of the participants in the marriage to leave the child with the other parent, a dispute over the future place of residence of the children, or a demand for deprivation of parental rights.
8. The existence of an agreement between parents on the issue of child support for young children. If it is absent, then the plaintiff must indicate which of the spouses will be the alimony provider, and how much money he will be required to transfer monthly for the maintenance of young children.

9. 
   An indication of the legal norms on the basis of which the plaintiff makes his claims.

10. Resolution part. It contains the following data:
    A list of demands presented, for example, dissolution of the marital relationship, change of surname and forcing the ex-spouse to pay alimony.
11. List of documents and evidence attached to the application.
12. The date the document was written with the signature of the originator.

Can alimony be collected from one spouse in favor of the other?

Filing for alimony between spouses is also possible. It turns out that the spouse can also claim his own maintenance at the expense of the funds and property of the other. Let's consider a situation where spouses are in a civil marriage. By “civil marriage” we should understand legalized relations in the registry office, and not by any means identified with it and replaced by the concept of “cohabitation”.

Family law says that spouses have a duty to care for each other in sickness and in health. To care means to provide ordinary attention, to bear each other's expenses, to support each other's health, to buy clothes, shoes, household items, etc.

If a husband or wife refuses mutual support, and they may not live together, but the divorce has not been filed, the second spouse can demand alimony for his maintenance without a divorce. Then the following conditions are taken into account:

• 
  simultaneous disability and need.
  If the spouse is disabled, but not in need, then these provisions of the Family Code are not used. As for disability, we note that it can be expressed by old age or injury, or some serious illness, and makes it impossible to perform any work, accordingly, there is no possibility of receiving a salary. Neediness implies an excess of expenses for daily needs over income received. For example, if a person receives a disability pension, but he is the owner of two apartments, which he rents out and receives additional money for, then he will not be considered needy.

• the wife, being in an “interesting” situation (pregnancy at any stage), and also if the baby born is not yet 3 years old. In this case, the child must be common;

• 
  the neediness of a spouse (even able-bodied), if he is caring for:

• a child who became disabled before the age of 18 (for example, a 10-year-old boy was injured);

a child who has received group 1 disability in the prescribed manner.

You can also collect alimony without divorce (from spouse to spouse) through litigation.

The court, making an affirmative decision in favor of the initiator of the claim, especially carefully examines the ability of the potential alimony recipient to support his other half: all his property, income, accounts, etc. That is, the spouse from whom alimony is being collected, after paying it, must have an amount left in his hands that is at least not less than the subsistence level. This is an important condition when assigning alimony from spouse to spouse.

As for the court’s refusal to satisfy the requirement to pay alimony, it will take into account such circumstances as:

• loss of the spouse’s ability to work due to alcohol abuse, drug abuse, or the commission of an intentional crime;

• 
  short stay in marriage. An exact definition of “short duration” is not given anywhere, even the courts have a different approach: some say that “short duration” is less than 3 years, and others say less than a year;

• unworthy behavior of the spouse demanding alimony.

  Similar to the previous concept, it is also not given, it means immoral, associated with causing scandals, brawls, beatings, betrayals, etc. behavior.

The above conditions are the grounds on which the court has the right (and not the obligation!) to refuse to assign alimony.

An important point is that in relation to spouses, alimony is collected in a fixed amount, and not as a percentage (shares).

In addition, alimony is assigned for a very specific period, related to the improvement of the situation of the spouse requiring payments.

Let’s say that while the wife was on maternity leave for up to 3 years, she was entitled to alimony, then she went to work, accordingly, her financial situation improved, she stopped being in need, and alimony from her husband for her maintenance was canceled.

Claims filed for the collection of alimony from a spouse to a spouse and from a spouse to a child (even if they are filed at the same time) should be filed with different statements.

What if not a spouse, and what if outside of marriage?

Since the Family Code regulates relationships that arise only on the basis of a registered union in the registry office, citizens who are cohabitants (for some reason, as a rule, they believe that cohabitation is a civil marriage, which is fundamentally wrong) are not covered by it. get in.

Therefore, there is no need to say that one of them can legally demand some kind of material benefit from the other. This means that they cannot file a claim to recover alimony from each other.

At the same time, if a common child is born outside the marriage union, and a man does not mind recognizing him as his own, confirming paternity in the child’s birth certificate, then even if he does not agree to pay alimony, it can be collected in court (in shares or a fixed amount).

It is more difficult if a man does not recognize his relationship with the child. Then, before going to court to collect alimony from him, the child’s mother must first take measures to establish his paternity in court.

What else do you need to know?

As already noted, to resolve the issue of collecting alimony from a spouse, you will have to go to court.

The Code of Civil Procedure refers issues related to the collection of alimony to a magistrate.

The exception is when the claimant intends to receive them in an equally determined amount (fixed amount); the alimony worker hides his income and pays nothing; the alimony provider violates the alimony agreement - then send the application to the district or city court (to choose from the place of residence of either spouse - the claimant or the defendant).

Apart from the claim submitted to the court, there is, of course, no exhaustive list of documents to be submitted, but most likely you will need to attach:

• Marriage certificate;
• certificate of its termination (if any);
• birth certificate of the child/children;

• 
  a certificate of family composition from housing authorities (to confirm with whom the child lives);

• documents confirming the income of the husband and wife (that is, the plaintiff and the defendant);
• documents on the necessary maintenance that one spouse requires from the other;
• documents confirming incapacity for work, need;
• a document confirming pregnancy from the antenatal clinic;
• bank account number to which alimony should be calculated;
• other documents that may relate to the case and confirm any facts within its framework.

If the spouse interferes with the case by failing to provide any information, for example, about income, then you need to ask the court to request that the party provide the necessary evidence.

A copy of the claim with a similar package of documents must be prepared for the spouse – the potential alimony payer. The attached documents may be submitted in copies.

Separately, it should be said about the state duty. Filing applications for alimony is not subject to state duty. However, being a legal expense, payment of the state fee will be assigned by the court to the defendant; in 2016, as well as in other years, it is insignificant (100-150 rubles). Its size does not depend on the amount of alimony, as well as on the procedure for collecting it.

What documents need to be attached

Along with the application, the plaintiff must submit the following documents to the judicial staff:

1. A copy of the document that confirms the identity of the applicant.
2. A certificate from the employer or a tax return certifying the amount of earnings of the parties to the litigation.
3. A copy of the marriage certificate.
4. Document confirming payment of state duty to the state treasury.
5. Copies of certificates certifying the birth of common children.
6. Certificate from the Migration Service of the Ministry of Internal Affairs about the current place of residence of the children.
7. Agreement between parents on the amount of alimony, the procedure for maintaining and raising young children, if it was concluded.
8. A petition to the court to request from the employer or the Federal Tax Service of Russia a certificate about the amount of the defendant’s earnings, if this document is not at the plaintiff’s disposal.

Claim: Don't miss anything

Despite the fact that there is no single form of claim, the application must be completed with the utmost care, guided by the second part of Article 131 of the Code of Civil Procedure, which describes what should be included in the claim. It may be better to use the help of a lawyer to avoid having your application returned if irregularities are discovered in it. Of course, this is not an obstacle to re-applying, it will just waste time.

So, be sure to indicate in your claim:

• where are you filing it (name of the court);
• information about yourself: last name, first name, patronymic, place of residence, passport details. If you intend to use the services of a lawyer, then his data is analogous;

• 
  information about the spouse from whom alimony is expected to be collected: last name, first name, patronymic, place of residence, passport details;

• indicate in detail what the violation is or there is a threat of violation of the rights or interests of the plaintiff spouse, as well as the circumstances in support of your claims and evidence confirming these circumstances;
• the amount of alimony collected, indicating the calculation;
• list of documents to be attached to the claim.

The list of documents attached to the claim varies depending on the circumstances of the case and the evidence presented, so it does not vary much. Useful information for the current year can additionally be viewed in the constantly updated information and legal databases.

Amount of child support depending on the number of children

Alimony from different marriages

The current law does not differentiate alimony payments based on the number of marriages. Children born in different marriages have the right to alimony payments (Article 81 of the RF IC). Thus, if a father pays alimony for the first child from his first marriage and he has obligations to pay alimony to the second child from his second marriage, then the amount of alimony is reduced from 33% to 16.7% for each child. If a woman has two children from different marriages, then both fathers pay alimony each according to their own scheme, independently of each other.

Distribution of alimony

The amount of alimony for two or more children is not a fixed amount and is indicated in the Family Code of the Russian Federation. So in Art. 81 of the RF IC states that the minimum amount of alimony for two children is 33% of the parent’s income . However, in accordance with Art. 138 of the Labor Code of the Russian Federation, alimony payments cannot exceed 70% of earnings. Thus, the range of alimony amounts can be quite large.

Most often, alimony is distributed in shares, since this method allows you not to be tied to certain numbers, and the amount of alimony is commensurate with the income of the payer. This method of calculation preserves the interests of all parties: mother, father, and children.

The final amount of alimony depends on many factors that are taken by the court when making a decision:

• financial condition of the parties;
• marital status of the parties;

Therefore, before going to court, you must prepare all supporting documents proving the need to collect exactly the amount you need.

The payer must inform the court that he is already paying alimony for one child from a previous marriage, since the court may not take an interest and make a decision according to which amounts will be paid for two children from different marriages in the amount of 25% of the monthly income for each child. everyone, i.e. for two children, 50% of income will be withheld.

Fixed payment amount

The ex-spouse’s obligation to support children is not canceled by his lack of earnings or irregular income (income from business activities). If it is not possible to collect alimony in shares, the court, guided by Art. 81 and art. 83 of the RF IC determines the amount of alimony in a fixed fixed amount. In this case, a strictly defined amount will be paid monthly, regardless of the person’s income and his actual earnings.

The size can be determined by the court:

• in accordance with the minimum subsistence level determined by the state;
• depending on the minimum wage in the region;

Changing the amount of payments

Alimony is not something immutable; its amount is influenced by many life factors. The amount of payments can be changed in accordance with changes in the income and financial situation of both parties. At any point in life, a party can reconsider the percentage of income that is paid as alimony in court.

So, if the party paying alimony for two children from different marriages cannot cope, you can file an application with the court to reduce the amount.

Example

Ivanov's ex-wife A.A. (2nd marriage) filed a lawsuit for the recovery of alimony of 25% of the income for her minor daughter and for an additional payment of the amount at a rate of 25%. Before this, Ivanov A.A. paid alimony to his daughter in the amount of 1/6 of his income and alimony for his son from his first marriage in the amount of 1/6 of his income. At the moment, Ivanov A.A.’s earnings are small (30 thousand rubles), new marriage, his wife and he rent an apartment, and he would like to reduce the amount of alimony for both children. To do this, he must file an application with the court to reduce the amount of alimony.

If the payer's income is very large, he can apply to the court to reduce the amount of alimony , and he must prove to the court that the payments exceed the needs of the children.

Alimony may also be reduced in the following cases:

• The 1st child has reached the age of majority, so 25% of the income will be paid to the 2nd;
• a minor child who, before reaching 18 years of age, acquired full legal capacity (clause 2 of article 21, clause 1 of article 27 of the Civil Code of the Russian Federation);
• the receiving party will refuse assistance;

However, even if the payer has accumulated debts to pay alimony for a child from his first marriage, the amount of interest on paying alimony for a child from his second marriage cannot be reduced.

If the payer’s income does not cover the needs of the children (the earnings are very small or the real amount of income is deliberately hidden), the recipient of alimony can apply to the court to increase the amount of payments . In this case, the court has the right to protect the interests of children, even to the detriment of the payer.

Amount of duty

Before transferring the claim and the documents and evidence attached to it to the court officials, the applicant is obliged to pay 600 rubles. for the provision of judicial services for divorce.

The Tax Code determines that the state duty for alimony cases is 150 rubles. However, the plaintiff, who requires the defendant to fulfill alimony obligations, has a benefit, according to which alimony cases are considered by the court free of charge. If the trial ends in favor of the plaintiff, 150 rubles. state fees will be forcibly collected from the defendant.

Compensation for legal expenses

Going to court is, in any case, an expense, and if the plaintiff cannot resolve all the issues on his own, he has to hire a lawyer and consult with lawyers, which entails considerable material costs.

According to Art. 100 of the Civil Code of the Russian Federation, the responsibility for compensation of legal costs can be assigned to the defendant.

To do this, it is necessary to indicate in the application for the issuance of a court order that the defendant will compensate for legal expenses. If the outcome of the case is positive, the defendant will be obliged to compensate the plaintiff for everything.

Consideration of the claim

After the application with accompanying documents has been submitted by the plaintiff to the court officials, the judge has 5 days to make a ruling initiating the start of the divorce process or perform the following actions:

• Refuse the plaintiff to accept the claim until he corrects the deficiencies found in the application.
• Return the documents to the applicant.
• Refuse to consider claims.

Keep in mind that claims aimed at forcing the child support provider to make payments must be resolved within one month from the date the judge accepts the document of claim.

After accepting the case for consideration, the judge sets a date for a preliminary hearing, during which the following occurs:

1. Resolution of motions of participants in the trial.
2. Clarification of claims and submission to the court of objections prepared by the defendant.
3. A proposal by a judge addressed to the parties to a proceeding to resolve differences by mutual agreement.
4. The judge separates different claims or combines the plaintiff’s claims into one claim.
5. The judge determines the date of the next hearing.

The trial of a dispute between spouses goes through the following stages:

1. The judge opens the hearing, then checks the presence of persons taking part in the case in the courtroom, explains to them their duties and rights, and asks the witnesses to leave the courtroom.
2. The judge explains to the parties the rules by which they can challenge judges and considers the submitted requests.

3. 
   Before resolving the spouses' differences on the merits, the judge asks the defendant whether he wants to recognize the plaintiff's claims. In case of refusal, invites the parties to draw up and sign a mutual settlement agreement.

4. If a peaceful resolution of the dispute is refused, the judge begins the consideration of the case by listening to the explanations of the defendant and the plaintiff.
5. He then listens to witnesses and examines the evidence presented by the parties.
6. To make sure that it makes no sense to continue the official marriage, the judge examines the facts confirming the impossibility of living together for the married couple. These include testimony from witnesses that the wife and husband do not live together in the same living space, certificates from the migration service about the place of residence of the spouses.
7. When resolving marital disagreements regarding the place of residence and upbringing of young children, the judge carries out the following actions:
   Interviews the child, studies his interests and affection for each parent.
8. Looks at the behavior of spouses and evaluates their personal qualities.
9. Examines certificates of parents' earnings.
10. Evaluates the list of material assets belonging to each parent.
11. This is necessary to understand which member of the couple will be able to provide the child with more favorable opportunities and living conditions in the future.
12. Listens to the opinion of a representative from the guardianship authority.
13. When deciding the amount of alimony, the judge takes into account the following facts:
    The amount of money the defendant receives as salary or other income.
14. Number of common minor children.
15. Lack of monetary contributions to the plaintiff from the defendant.
16. After the examination of evidence is completed, the stage of judicial debate begins. Each side is given time to make a speech in defense of its claims.
17. The judge leaves the courtroom and goes to the deliberation room, where he is engaged in developing a decision.
18. The judge publicly announces the decision.

The part of the decision that concerns the resolution of the alimony dispute must be implemented immediately after it is announced by the judge.

The decision on the issue of termination of family relations is given legal force one month after it is made in final form and only if the losing party has not filed an appeal.

Changes and additions introduced from 2021

Alimony payments are a sensitive issue not only for the ex-wife and husband, but also for the state.

For the period 2014-2015 the number of people wishing to avoid responsibility and not pay child support has increased.

Which led to the state’s decision to tighten measures regarding violators and record changes in the legislative framework and payment rules. These laws came into force in 2016.

For the period of 2021, certain concepts for amending the law on alimony for maintenance are planned:

• 
  increase in the minimum monthly amount;

• tougher penalties for those who refuse to support children;
• changing the age category of children who are entitled to payments;
• the possibility of losing alimony under certain circumstances.

Arbitrage practice

The case was considered by the Alushta City Court of the Republic of Crimea in June 2015.

The wife sent a statement to the court in which she asked:

• Dissolve the marriage with the defendant, change the surname to the premarital one.
• Oblige the husband to pay monthly alimony contributions for the common child until he reaches 18 years of age.
• Ensure your own maintenance at the expense of your husband until their common child turns 3 years old.

The wife motivated her claims as follows:

• It makes no sense to continue the marriage relationship, since the married couple has actually broken up, does not live together and is not involved in running a common household.
• The husband does not want to resolve the issue of alimony by mutual agreement.
• Her own maintenance is necessary because she is busy caring for the baby. Because of this, she has no time to work.

The defendant, in response to the plaintiff’s claims, stated that he agreed to separate from his wife, but would not give her money, since she would spend it on herself. Instead, he proposed this option: he would independently purchase everything necessary for the baby. He also explained that he works in a taxi company, so his earnings are irregular.

Having considered the circumstances of the case, the court came to the following conclusions:

1. It is necessary to end the family relationship of the spouses, since this does not contradict their wishes and the law.
2. Partially acknowledge the wife's demands regarding child support. Since the income of taxi drivers is unstable, the payment of alimony obligations should be awarded in a fixed amount. Reduce the amount of alimony claims from 6 thousand rubles. up to 4.5 thousand rubles.
3. The defendant should be required to pay his ex-wife 2 thousand rubles monthly. on its content. Since the husband’s family financially supports the plaintiff, for example, clothes and feeds her child, pays for her studies at the university, the judge came to the conclusion that there are no reasons to award a larger sum of money than 2 thousand rubles. for financial support of the spouse.

Alimony in marriage

According to most people, alimony is funds transferred by one parent to the other for raising children under the age of majority, which are paid to them only after the divorce.

In reality, it turns out that one of the parents who live in marriage does not provide financial support for raising their common minor child. Many families live in similar conditions: one of the parents is in great need of financial support, and the other does not help him, and many do not know that it is possible to receive alimony even if you are married.

Conditions for paying alimony in marriage

There are many situations in life when spouses do not want to divorce, but one of them is forced to demand payment of funds for the needs of the child. The reason for this may be the alcohol addiction of one of the parents, addiction to gambling or drugs.

Or divorce is not beneficial for both spouses. Maybe they just don't have enough time to finalize the divorce. Thus, the concept of “marriage alimony” exists . This type of payment is not directly stated in the law, but its essence follows from its individual provisions.

By law, both mother and father must participate in raising the child. If one of the parents does not do this, the other can file an application in court and force the other parent to pay child support for the child’s education, treatment, etc., and it does not matter whether they are married or already divorced and regardless of whether they live together or apart.

The main conditions for alimony without divorce are:

• family connection;
• status of legal spouse;
• sufficient financial condition of the spouse who is required to pay alimony;

Category of persons who have the right to alimony without divorce:

• a needy spouse who is unable to earn money on his own;
• pregnant wife;
• a wife raising a common child under 3 years old;
• a spouse who is unable to provide for himself and supports a disabled child until he reaches 18 years of age;
• a financially disadvantaged spouse supporting a disabled child of group 1 since childhood;
• a needy spouse raising common minor children;

Registration of alimony in marriage

The procedure for obtaining alimony during a marriage is the same as for obtaining alimony during a divorce.

There are two ways to apply for alimony:

• agreement between the parties;
• judicially;

An agreement on the conditions, amount and procedure for paying alimony is concluded in writing and certified by a notary, otherwise the agreement will be considered invalid. The agreement is equivalent to a writ of execution and, if a party deviates from its obligation, it can be presented to the bailiff without going to court.

To obtain alimony in court, you need to file an application with the court. The claim may be filed in court at the place of residence of the plaintiff or defendant. The application must indicate the circumstances why the defendant does not participate in supporting the family.

The application must be accompanied by:

• a copy of the marriage certificate;
• a copy of the children's birth certificate;
• if necessary, documents confirming the disability of a family member (certificate of pregnancy, certificate of disability, etc.);
• certificate of income of both spouses;
• copies of passports of both spouses;

If alimony is being sought for a child under 18 years of age, you can apply for a court order , which is issued by a judge 5 days from the date of filing the application. A court order is also a writ of execution and can be presented to the bailiffs for collection.

If the child is an adult, then a statement of claim , based on the results of which a decision is made. A writ of execution is issued after the decision comes into force and is presented to the bailiff service.

Amount of alimony

If an agreement is concluded between the parties, then the amount of alimony is determined by him independently, but it should not be lower than the amount that could be received by going to court.

The court collects alimony in the following amounts (Article 81 of the RF IC):

• for one child - 25% of total income;
• for two children - 33% of total income;
• for three or more children - 50% of total income;

In some cases (irregularity of income, receipt of income from natural products), the court may establish the amount of alimony in a specific amount or simultaneously in a specific amount and as a percentage of income (Article 83 of the RF IC). Also, the court, taking into account the current situation in the family, can change the shares either down or up). The amount of alimony is determined by the court based on the financial situation of the defendant and other circumstances.

Alimony is withheld from all income of the debtor, including bonuses, remuneration, income from part-time work, income in kind, etc.

Child support is not paid for:

• money received as compensation for damage in connection with the death of the breadwinner;
• social benefit for funeral;
• benefits for citizens with children, which are paid from budget funds;
• maternity capital funds.

The legislative framework