The procedure for revoking a writ of execution for alimony

Many people think that the recipient of alimony cannot refuse to receive such material support, but in practice this often happens. The corresponding decision, as a rule, is made in an emotional outburst, and it is not always possible to explain it logically.

In most cases, the parent with whom the child lives does not refuse child support even when it is, in fact, not needed, because he himself can fully provide his child with everything necessary. Firstly , the fact of the financial solvency of one parent cannot be the basis for exempting the second parent from participating in his maintenance, and, secondly , mom or dad, acting on behalf of the child, must take care of his future, and can direct alimony funds to his training, recreation or development.

Legal reasons for refusing alimony

The law provides several grounds for terminating alimony payments:

• death of the recipient or payer;
• moving the child to the payer and transferring to his maintenance;
• the child reaches 18 years of age, emancipation or marriage;
• renunciation of parental rights and subsequent adoption of a child by another person;
• challenging paternity.

Despite the fact that the right to receive alimony ends with the occurrence of an event, this does not happen automatically. The exception is when the child reaches 18 years of age. In other cases, you will need to notify the bailiffs conducting the proceedings, or file a lawsuit to terminate it in court.

Expert commentary

Leonov Victor

Lawyer

It is enough for the claimant to submit an application to terminate the proceedings, indicating the reason. If he does not do this, the payer (or his heirs in case of death) must deal with the issue. This must be done, otherwise a debt will arise for the unpaid amounts.

If the desire to withdraw the application is dictated by other motives, such an action may raise objections. This rule is not spelled out clearly enough in the law: there is neither permission to refuse alimony at one’s own discretion, nor a direct prohibition on this. The main thing remains to respect the interests of the minor - if they are not violated and the revocation of the writ of execution does not entail a deterioration in the standard of living compared to that of the marriage, such a decision is permissible.

How to withdraw an application from court

An application for alimony may be withdrawn before the completion of the trial. To do this, it is necessary to draw up a written refusal of the claim, which will indicate the grounds that prompted this decision. The court will consider the application, and if it does not contradict the interests of the child, the case for collecting alimony payments will be terminated.

The following documents are attached to the application for refusal of the claim:

• Photocopy of the applicant's passport;
• Birth certificate of the minor;
• Writ of execution (if available);
• A notarized agreement between the parties on the waiver of alimony payments, or a receipt for the payment of the entire amount of money for child support.

If a court decision has already been made and alimony has been assigned, the writ of execution is sent to the bailiff service. The recipient must contact a FSSP employee and write a statement to terminate the enforcement proceedings.

The application shall include the following information:

• The name of the FSSP department to which the writ of execution was sent;
• Personal information about the recipient and payer of alimony;
• The name of the court that made the decision and the date it entered into force;
• Date of writing the application to the FSSP to initiate enforcement proceedings;
• Request to revoke the writ of execution;
• Reasoned reasons for the review;
• Signature of the person applying.

The application will be reviewed by bailiffs for a month. After which they will make a decision to suspend the case regarding the collection of alimony payments.

There is another way to refuse alimony after the trial. Having collected the writ of execution from the office, the recipient may not present it to the FSSP. Thus, enforcement proceedings will not be initiated.

If the divorce process has not yet been completed, the plaintiff has the opportunity to withdraw the application for alimony. However, sufficient justification for such a decision will have to be provided. For example, concluding an alimony agreement with the defendant. The mother’s words that she herself is able to provide for the child will most likely not be taken into account by the court. An exception is if the second parent has a difficult financial situation, and he also requests to be exempted from paying child support. If the judge considers that the interests of the child are not violated with such a decision, he can accommodate and return the application for alimony.

Registration of refusal

Methods for formalizing a waiver of alimony support may vary depending on the specifics of the situation in which the parties find themselves. For example, you can refuse:

• before alimony is ordered by the court (in this case, the parent with whom the child lives and who independently provides him with everything necessary does not file a claim with the court, and the former spouses simply live separately from each other; however, the second parent does not lose the right to help his son or daughter, and the corresponding obligation is not removed from him);
• after the relevant court decision has been made or as part of enforcement proceedings;
• after an agreement is concluded between the parents on the maintenance of children (this is the simplest situation, in which, in order to refuse to receive funds, the recipient can provide the notary who certified the agreement with evidence that such a decision will not worsen the situation of the child ( certificate of income, etc.)).

In the first case of refusal to receive funds (before the court makes a decision), the biggest difficulty is that this refusal may not be accepted by the judge . Therefore, the parties are recommended to enter into a settlement agreement, which will provide for a voluntary form of fulfillment of alimony obligations. Such an agreement can be concluded at any time during the consideration of the case by the court (up to the moment when the court announces its decision on the case).

If the court decision has already been made, and it indicates the purpose of payments, then the party refusing them can, having received a writ of execution in the court office, simply leave it without movement, that is, in fact, not open enforcement proceedings.

If enforcement proceedings have already been initiated , then you can contact the relevant bailiff service with a request to refuse to accept the transfers, since the legislation on enforcement proceedings considers such a refusal as one of the grounds for the enforcement proceedings to be terminated. In this case, the writ of execution will be returned to the applicant, and a mark will be placed on it stating that execution is impossible due to the recipient’s refusal to accept the funds due to him.

Termination of alimony agreement

If an alimony agreement has been concluded between the spouses, it cannot be canceled. You can either not give it a go, or terminate the previous one and enter into a new one, in which the refusal to receive money will be recorded. However, one must keep in mind: if the parties do not support their decision with any compensation, the notary will refuse to certify the document.

Expert commentary

Gorbunova Olga

Lawyer

Such compensation may be a one-time transfer of a large sum of money or expensive property. Also, regular payments in the agreement can be replaced by “in-kind” payments - the purchase of clothes and shoes, payment for clubs and sections, etc. The main thing: the notary must be sure that the parents’ agreement does not infringe on the rights of the child.

How to pick up an alimony agreement from the bailiffs

When enforcement proceedings have already begun, you will need to contact the bailiffs to return the writ of execution. Moreover, such an action does not mean the cessation of production, but only its suspension. This can be done temporarily. For example, the payer lost his job and asked the recipient to refuse to collect alimony until he could find a job. If good relations remain between the spouses, the recipient can take such a step and revoke the writ of execution for a specified time.

How to write an application to revoke a writ of execution

In the “header” indicate the name of the FSSP department, information about the recipient: full name, address, contact phone number

The content describes the circumstances of the case:

• Full name of the payer;
• the document on the basis of which the withholding occurs;
• request to return the writ of execution and the reasons for such a decision;
• date and signature of the applicant.

Reasons include reconciliation with the payer and resumption of cohabitation, voluntary fulfillment of his obligations, transfer of property to the child as alimony, etc.

Statement of claim for waiver of claims (sample) Statement of claim for return of the writ of execution (sample)

Statement of claim for revocation of the writ of execution for the collection of alimony (sample)

The application is written in two copies, one of which is returned to the applicant with a mark of acceptance. The bailiff is given five days to consider the request, after which he issues a decision to end the proceedings. After which a copy of the decision, together with the writ of execution, is returned to the claimant.

Step-by-step instructions for canceling

If you decide to make payments voluntary, but do not know how to cancel the proceedings and whether this can be done quickly, you should start by contacting the bailiff in whose jurisdiction it is. It is necessary to submit a written application to revoke the writ of execution.

Receipt of alimony payments will be stopped from the moment the claimant submits his petition, and not from the date of the final decision.

Algorithm of actions for the creditor:

1. We submit an application to the FSSP department with a request to withdraw the IL.
2. Within 5 days we receive a resolution from the bailiff to complete the collection proceedings.
3. We get IL.

You can pick up a writ of execution for alimony as soon as the official’s decision is made. Receipt of documents is provided both in person and by Russian mail.

Application to bailiffs (sample)

The basis for termination of collection proceedings at the request of the recipient of payments is always an application submitted to the FSSP department. Such a document is drawn up by the claimant in simple written form, and you will find a ready-made sample on our website.

The application must indicate the following points :

1. Recipient and debtor details.
2. The name of the FSSP body in charge of the case.
3. Information about the court decision that gave rise to the obligation.
4. Request to revoke the writ of execution from the bailiffs.
5. Reason for discontinuation of production.
6. Date and signature.

You can send the document in person or by registered letter with return receipt requested via Russian Post. One of the samples must be returned to the applicant with a note of receipt.

How to pick up an application from the accounting department

Sometimes the claimant does not contact the bailiff service, but takes the writ of execution to the accounting department at the defendant’s place of work in person. In this case, it is enough to write an application for the return of the document addressed to the head of the organization. Only the recipient can do this; the payer will need to obtain permission through the court. But this requires legal grounds: for example, the child moved to live with him or was adopted by the mother’s new husband.

Expert commentary

Kamensky Yuri

Lawyer

Sometimes accounting employees refuse to return the writ of execution, citing the fact that only the bailiff can revoke it. But if there was no appeal to the FSSP, then there is no enforcement proceedings. Thus, the bailiffs have no relation to the issued document. The claimant may refer to clause 1 of Art. 46 of the Law “On Enforcement Proceedings”, according to which he has the right to revoke the document. If the accounting department refuses to return it, this decision can be challenged in court.

clause 1 art. 46 of the Law “On Enforcement Proceedings” - Return of the writ of execution to the claimant after the initiation of enforcement proceedings

The writ of execution, according to which the recovery was not carried out or was made partially, is returned to the claimant:

1. at the request of the claimant;
2. if it is impossible to execute an executive document obliging the debtor to perform certain actions (refrain from performing certain actions), the possibility of execution of which has not been lost;
3. if it is impossible to establish the location of the debtor, his property or obtain information about the availability of funds and other valuables belonging to him, located in accounts, deposits or deposited in banks or other credit organizations, except for cases when this Federal Law provides for the search for the debtor or his property;
4. if the debtor does not have any property that can be foreclosed on, and all measures taken by the bailiff, permitted by law, to find his property were unsuccessful;
5. if the claimant refused to retain the debtor’s property that was not forcibly sold during the execution of the writ of execution;
6. if the claimant, by his actions, prevents the execution of the writ of execution.

Is it possible to withdraw an application for alimony?

Expert opinion

Noskov Georgy

Lawyer. Experience 12 years. Specialization: civil, family, inheritance law.

Yes, the legislation on enforcement proceedings provides the recoverer with a full range of rights, including making a decision on the fate of the recovery.

You can withdraw an application for the collection of alimony no later than 5 days from the date of its submission, otherwise the FSSP will initiate enforcement proceedings and the executive document will have to be revoked.

However, the applicant does not face any problems with either the withdrawal of the application or the withdrawal of the writ of execution. Yes, and there is not much difference between them.

Procedure

In order to withdraw an application for alimony from the bailiffs or withdraw a writ of execution, you need to submit an application for the return of documents in any case. When the claimant has withdrawn the unit’s application, we will consider the procedure for returning the writ of execution back.

The reasons why the recipient of the content decided to withdraw the documents do not particularly concern anyone. Most often this is:

1. Agreement with the payer on voluntary performance.
2. Personal request of the payer.
3. A one-time payment of alimony in exchange for the return of a document for a certain period.

The bailiffs don’t care how or what the claimant agreed on with the payer, so they are happy to return the documents - be it an application or a writ of execution.

Find out more about the procedure for returning a writ of execution.

To return an application you need:

• prepare an application for the return of documents or sheets;
• contact the FSSP at the place of execution of the court document;
• leave your application and receive your documents back on the same day or after 3 days.

A sample application for the return of the sheet is posted below; to return the application for alimony to the bailiffs, you can simply change the name of the document in the text.

We recommend consulting with lawyers first to avoid possible problems in the future or difficulties with filing an application.

Also, additionally read the material “Is it worth applying for alimony” and find out the pros and cons of voluntarily paying maintenance.

Consequences of refusing an application for alimony

Only termination of the procedure for forced collection of alimony. Bailiffs do not initiate enforcement proceedings, and the payer will not automatically lose money from the salary in favor of maintenance.

Contrary to the myths that say that re-application after withdrawal of an application is not allowed, we declare that this is a lie. You have the right to submit an application and a writ of execution for the collection of alimony at any other time, then collect it again, and so on ad infinitum.

The writ of execution for alimony is limited to the collection period and it can be submitted to the FSSP at any time until the child reaches the age of 18 or other grounds for termination of alimony payments.

Important! But if you withdraw the claim in court by writing a waiver of the claims, then you will be able to apply for alimony again only if there is a significant change in circumstances or new facts emerge.

Consequences of refusing alimony

Sometimes the basis for refusal of financial assistance on the part of the ex-spouse is strong hostility and reluctance to communicate with him.
Also, a woman may fear that paying alimony will become a basis for demanding maintenance from the grown child and prefers to protect him from possible claims from the father. The reason for refusing financial assistance is often pressure from the ex-spouse. Another motive may be the good financial security of the mother and the poverty of the father. However, from the point of view of the law, these reasons are not valid. The decision of a mother who cannot independently provide a decent standard of living for her child and at the same time deliberately refuses child support is harmful not only from a financial point of view. Guardianship authorities may be interested in the situation. If they consider that such an act infringes on the interests of the child, they themselves will initiate proceedings for the collection of alimony. The mother faces sanctions up to and including deprivation of parental rights. This is due to the fact that legally the recipient of the money is not her, but the child. Unauthorized refusal to improve the financial security of a minor is a violation of his rights.

Expert commentary

Gorchakov Vladimir

Lawyer

Withdrawal of an application for alimony does not always mean the recipient’s desire to refuse cash payments. There are often situations when the payer promises to fulfill his duties voluntarily, transferring money personally. If promises are subsequently broken, it is recommended to immediately apply for enforcement.

Refusal does not affect the right to receive alimony. However, if a woman withdraws her claim from the court, she will not be able to apply for alimony again on the same grounds (Article 221 of the Code of Civil Procedure of the Russian Federation).

This can only be done if there are significant changes in circumstances:

• the birth of another child;
• significant deterioration in financial situation
• loss of ability to work, etc.

Therefore, when withdrawing a claim, it is recommended to necessarily enter into an alimony agreement.

When the application for the return of the writ of execution is submitted to the bailiffs, the claimant can resume the proceedings at any time until the child reaches adulthood. No special reasons are required for this. However, it will be difficult to receive money for the period when the document was revoked. This can only be done in court by presenting evidence of the defendant’s intentional evasion of payments.

Expert commentary

Potapova Svetlana

Lawyer

The revocation of the writ of execution does not affect the obligation to repay the resulting debt. This will still have to be done, but only on a voluntary basis. If by the time enforcement proceedings are resumed the payer has not repaid the debt, this amount can be recovered.

Procedure

In order to collect an application for alimony from the bailiffs, the interested person will need:

1. Make an appeal. Indicate in it the number and name of the bailiff service, your full name and address, details of the writ of execution, the reasons for withdrawing the application and the date of its filing.
2. Send the document to the service unit at the location of the court that approved the need to collect funds or cancel such a decision.
3. Wait for the review results (takes no more than 4 days).

A request to terminate enforcement proceedings for alimony can be sent by mail, provided that the signature of the claimant (his representative) on it is notarized.

Is it possible to refuse alimony if there is debt?

If there is a debt, the application for refusal to collect alimony will suspend the accrual of penalties for late payment of benefits. The revocation of the writ of execution is not grounds for repayment of the debt, therefore the payer is obliged to reimburse the amount in full.

The recipient can re-submit the writ of execution to FSSP employees, and the case of collection of payments will be resumed. The legislation provides for the possibility of receiving alimony for the entire period during which enforcement proceedings were suspended. However, there is a limitation - alimony can be reimbursed for a period not exceeding 3 years.

Important! If the child’s mother provides evidence that during the specified period the payer did not provide voluntary financial assistance to the child, the bailiff will calculate the arrears of alimony, including for the period of revocation of the writ of execution.

The payer can avoid forced payment of debt accumulated during the period of suspension of enforcement proceedings. To do this, you must provide the bailiff with checks and bank receipts confirming the voluntary transfer of funds for child support.

How to collect a large amount of alimony debt

You can collect a large debt through the FSSP, or by submitting documents at the debtor’s place of work or service, or to the bank where the defaulter has accounts. The best option is to contact the bailiffs, since in enforcement proceedings all measures of influence on the draft dodger can be used at once. For example, if a man has a large debt, the bailiffs will simultaneously seize and sell the property, introduce prohibitions and restrictions, and consider initiating an administrative or criminal case.

Time limits for applying to court for compulsory collection

It is not necessary to go to court to pay off the debt if the documents are already in the FSSP. The bailiff is obliged to monitor the timeliness and correctness of the transfer of funds for the maintenance of the child. If even a one-time delay in alimony occurs, the enforcement measures specified in Law No. 229-FZ must be applied.

You can apply for judicial protection in the following cases:

• if you need to determine the exact amount of debt to obtain a writ of execution;
• if you need to calculate debt based on the cost of living or the average salary in Russia;
• if the bailiff is inactive, does not collect, or incorrectly calculates the amount of the debt.

For example, having received a separate writ of execution for a debt of over 200 thousand rubles, you can immediately have property of a commensurate value seized. Also, through the court, you can change the percentage of earnings to a fixed amount of alimony.

Filing a claim for alimony in a fixed amount

The procedure for dealing with a defaulter will become easier if you change the form of alimony payment. When establishing obligations in proportion to earnings, it is difficult to calculate the debt if the parent does not have a job and a stable income. The claimant can eliminate such difficulties by filing a claim to change the form of payments to a fixed amount.

Receiving alimony after refusal

Circumstances may develop in such a way that the parent who refused child support will have reasons to again receive legal child support. The reasons are: deterioration of financial situation, illness of the child, payment of tuition.

There are several ways to resume payments:

• Termination of the agreement on refusal to pay alimony. The parties enter into a new agreement, which specifies the amount of payments, terms and procedure for their payment.
• Applying to the court with a claim for alimony. You can submit an application if the child’s mother refused benefits during the divorce proceedings.
• Providing a writ of execution to the FSSP. Bailiffs are obliged to resume the case for the collection of alimony upon presentation of a writ of execution after revocation.

When can a refusal be issued?

There are several cases when this refusal can be issued.

1. 
   Before going to court.
   If the parent in whose care the child remains did not apply for child support payments, everything is quite simple. As long as there is no statement about the lack of funds to support the child, the court will not deal with this issue. Then the spouses can enter into an agreement in which the mother confirms in writing her desire to support the baby on her own. This agreement must be certified by a notary. Since the notary also cannot violate children’s rights, he is obliged to make sure that the mother’s financial situation allows her not to accept the father’s help. Only after this the refusal of alimony will be certified.

2. Until a court decision is made. If an application demanding alimony is already in court, it is possible to refuse it. To do this, you need to write a petition with which you should go to court. In addition, an agreement must be concluded between the parents, which will indicate that the mother does not need payments for the child. In this case, the court may simply dismiss the case on the original application.

3. 
   After the court has ordered alimony. If the assignment of alimony payments has already been approved, then this decision cannot be canceled. However, it is possible to contact the bailiff service with a corresponding application. If the mother does not have financial difficulties, and an agreement has been concluded between the spouses on refusal, the bailiff will simply terminate the enforcement proceedings.

In addition to the usual agreement, in which a woman voluntarily refuses to pay alimony by her husband, a slightly different agreement may be concluded. It consists of the transfer by the father of a large sum for the maintenance of the child, which should be enough until he comes of age. In this case, the contract indicates that sufficient funds have been received for the baby.

In addition, any other valuables can be transferred as alimony. Instead of monthly payments, the father can transfer real estate or a car to the child, which will go toward child support. In this case, the agreement must include information about the transfer of an apartment or a large sum of money to pay alimony. The registration of the apartment must be done officially so that the child becomes the owner.

It should be understood that it will not be possible to refuse the help of the second parent if it is not possible to fully provide for the children. Unsatisfactory conditions of detention and the unfavorable financial situation of a woman become an obstacle to such a court decision, since it will be a violation of children's rights and is considered illegal.

Features of document preparation

In all cases, when refusing alimony payments, it is necessary to prepare the documents correctly. An exception is the situation when the mother did not write a statement to the court demanding child support. With this option, it is also desirable to conclude a formal agreement, but this may not be done. Everything else requires correct and accurate registration in accordance with the law.

A sample application to suspend legal proceedings can be obtained from the court, found on the Internet, or asked for help in filling out from a lawyer.

The same can be done for an agreement. The notary's office will help you draw up this agreement legally correctly, otherwise it simply will not be signed.

When transferring an apartment to a child as alimony, you will have to settle the circumstances with many documents relating to rights. A minor cannot use the property independently, so he must have an official representative. In addition, transferring an apartment for maintenance payments is possible only if the mother has the opportunity to do without monthly transfers. Otherwise, such a refusal of alimony cannot be confirmed at the legislative level.

Transferring a large amount of alimony also involves some nuances. It is necessary to indicate exactly who can use these funds until the child reaches adulthood, and for what needs. It is also important to make sure that this amount will be enough so that the baby does not experience any financial difficulties.