DEFINITION
(appeal)
Court of Appeal of the Kirov District Court of Omsk
as part of the presiding judge Butakova M.P.,
with secretary B.,
having considered in open court on February 8, 2010 O’s appeal against the decision of the magistrate of court district No. of the Kirov administrative district of Omsk dated November 23, 2009 on the recovery from O of alimony for the maintenance of a spouse until the child reaches three summer age,
INSTALLED:
O filed a statement of claim against O for the recovery of alimony in a fixed sum of 4,500 rubles. for the maintenance of the spouse until the child reaches the age of three.
By the decision of the magistrate of the court district No. KAO of Omsk dated November 23, 2009, the claims were partially satisfied: alimony was collected from O in favor of O for her maintenance in the amount of 4,300 rubles. monthly starting from 10/07/2009 and for three years from the date of birth of a common child, with subsequent indexation in proportion to the increase established by law minimum size wages, a state duty was also collected for the local budget in the amount of 100 rubles (case sheet 47-48).
O filed an appeal with the Kirovsky District Court of Omsk, in which he asks to cancel the above decision of the magistrate, believing that it was made in violation of the norms of substantive and procedural law, since at the time of the consideration of the case he did not work under an employment contract or other sources of income didn't have. He lives with his pensioner parents, who are forced to support not only themselves with their pension, but also him and his parents each pay 3,601 rubles, which is below the minimum wage. The court's conclusion that the defendant has a real opportunity to pay part of the funds for the maintenance of his wife is not confirmed by the case materials and is unfounded. The plaintiff had not previously approached the defendant for help. The court did not take into account the length of the spouses' stay in marriage, which is one of the grounds for releasing a spouse from the obligation to support the other spouse. The marriage between the spouses was registered on September 15, 2006, dissolved on October 10, 2008, in fact, family relations were terminated from February 2008, that is, the duration of the marriage of the parties was 1 year and 5 months. The court's decision puts the defendant in a difficult financial situation. Currently, he works under an employment contract at OOO with a salary of 10,217 rubles, and has no other sources of income. Pays 25% of earnings for the maintenance of a minor child - 2554.25 rubles. And taking into account the court decision to collect alimony for the maintenance of the spouse in the amount of 4,300 rubles, the amount of payments will be 6,854.25 rubles, or approximately 68%. The defendant is left with 3,362.75 rubles, which is below the minimum wage. And according to Art. 138 of the Labor Code of the Russian Federation, when deducting from wages under several executive documents, the employee must, in any case, retain 50% of the wage.
At the court hearing, O supported the complaint, explaining to the court that in addition to paying child support, he was taking all measures to pay off the arrears of alimony that arose after he lost his job. He understands that he must obey the law, but he must have enough left to live after all the payments: at least for food and travel.
O objected to the satisfaction of the complaint. Additionally, she explained to the court that since after the sale of the house in the village, there was only enough money to buy a garden house, she lives in it. Therefore, all treatment of the child is paid. There are currently no places in the kindergarten, a second commission is scheduled for May, but even then it is not known whether there will be places. That's why she can't go to work.
Having heard the persons involved in the case and checked the materials of the case, the appellate court considers it possible to leave the decision of the magistrate dated November 23, 2009 unchanged, clarifying it in terms of the collected amount of alimony and the period of collection, on the following grounds.
By virtue of Art. 89 of the RF IC, spouses are obliged to financially support each other. In case of refusal of such support and there is no agreement between the spouses on the payment of alimony, the right to demand the provision of alimony in judicial procedure from another spouse who has the necessary means for this, the wife has during pregnancy and for three years from the date of birth of the common child.
According to Art. 91 of the RF IC, in the absence of an agreement between spouses on the payment of alimony, the amount of alimony exacted from a spouse in court is determined by the court based on the financial and marital status of the spouses and other noteworthy interests of the parties in a fixed sum of money payable monthly.
As established at the court hearing and as follows from the case materials, O and O were in a registered marriage from September 15, 2006, which was terminated on October 10, 2008 (case file 5). From the marriage they have a minor child - O, born on February 28, 2008 (case file 26), for whose maintenance alimony was collected from the defendant by court order dated April 30, 2008 (case file 28, 30).
O is on parental leave until he reaches the age of three years from 08/29/2009 – 02/28/2011 (case sheet 6, 7). In 2009, she received child care benefits in the amount of 6420.11 rubles. (case file 4). He does not receive monthly child care benefits. He does not have his own home, and therefore lives with his child in summer cottage(case sheet 24).
According to the rules of Art. 92 of the RF IC, the court may release a spouse from the obligation to support another disabled spouse in need of help or limit this obligation for a certain period both during the marriage and after its dissolution in the event that the incapacity for work of the spouse in need of help occurred as a result of the abuse of alcoholic beverages, drugs or as a result of his committing an intentional crime; if the spouses are married for a short period of time; in case of unworthy behavior in the family of a spouse requiring payment of alimony.
As established at the court hearing, O and O lived in marriage for 1 year and 5 months, which, in the opinion of the court, is not short-lived.
Thus, the decision of the magistrate to collect alimony from the defendant for spousal support is legal and justified.
At the same time, the court considers it necessary to clarify the amount of alimony by collecting 2,500 rubles in favor of the plaintiff, since, as follows from the employment contract, the defendant’s official salary is 10,217 rubles. (case files 63-65), the latter regularly pays child support and additionally to pay off the alimony debt incurred due to the fact that he was left without work, which is confirmed by the case materials (case files 27, 32 , 66), regularly transfers funds to the plaintiff’s account: in October, November 2009 and January 2010, 7,000 rubles each. After paying alimony, the defendant has 7662.75 rubles left at his disposal, and it is from this amount that the defendant will have to pay alimony for the maintenance of his wife. In this connection, the amount of the corresponding alimony collected by decision of the magistrate is 4,300 rubles. – the appellate court considers it too high. At the same time, the court also takes into account the plaintiff’s arguments that she and her child are forced to seek paid medical care, and, accordingly, incur additional expenses for her daughter’s treatment, however, the incurrence of additional expenses for children is regulated by Art. 86 of the Family Code of the Russian Federation, according to which, in the absence of an agreement and in the presence of exceptional circumstances (serious illness, injury to minor children or disabled adult children in need, the need to pay for outside care for them and other circumstances), each of the parents may be brought by the court to participate in bearing additional expenses caused by these circumstances. The procedure for the participation of parents in incurring additional expenses and the amount of these expenses are determined by the court based on the financial and marital status of the parents and children and other noteworthy interests of the parties in a fixed amount of money payable monthly (clause 1). The court has the right to oblige the parents to participate both in the additional expenses actually incurred and in the additional expenses that need to be incurred in the future (clause 2).
Also, taking into account the fact that, as stated in the Resolution of the Plenum of the Supreme Court of the Russian Federation dated December 19, 2003 No. 23 “On the Judicial Decision,” the decision is an act of justice that finally resolves the case, its operative part must contain comprehensive conclusions arising from those established in reasoning part of the factual circumstances that the court decision should not cause difficulties in its execution, the court considers it necessary to clarify the decision of the magistrate by indicating the date from which the daughter of the plaintiff and defendant turns 3 years old, i.e. until 02/28/2011
Guided by Art. Art. 328, 329, 335 Code of Civil Procedure of the Russian Federation, court
DEFINED:
The decision of the magistrate of the judicial district No. of the Kirov administrative district of Omsk dated November 23, 2009 on the claim of O to O for the recovery of alimony in a fixed amount for the maintenance of the spouse until the child reaches the age of three is left unchanged, and O’s complaint is not satisfied, specifying the amount of alimony , subject to recovery from O for the maintenance of the spouse and the period of collection, having collected from O, in favor of O, alimony for the maintenance of the spouse in the amount of 2,500 rubles. monthly, starting from 10/07/2009 and for three years until the child reaches 3 years of age, i.e. until 02/28/2011.
The ruling of the appellate court comes into force from the date of its issuance and can be appealed through supervisory review within 6 months.
Presiding M.P. Butakova
The definition came into force on 02/08/2010.
Good afternoon, dear readers. Here is Evgeniy Volkov, your family law lawyer. Today I’ll tell you about.
I warn you right away that my article about collecting alimony for spousal support turned out to be quite lengthy, so don’t expect to finish it in 10 minutes.
The article outlines my experience and knowledge about alimony for the maintenance of a spouse, as well as about alimony for the maintenance of a former spouse.
And since you are here, the question of alimony for the maintenance of a spouse for up to 3 years is more relevant for you now than ever.
In this article, I will not give you dry quotes from articles of the Family Code of the Russian Federation about maintaining a spouse for up to 3 years, as most lawyers do on their websites.
I am used to presenting information for my readers in an intelligible and understandable manner. So make yourself a cup of coffee and start studying my article.
In this article:
Regulatory regulation of the issue of alimony for the maintenance of a spouse (former spouse)
Let's consider two possible situations encountered in practice. Your own situation will fall under one of the situations I described below, with slight variations.
Situation No. 1.
The wife and husband are married. During the marriage, the couple had a child together.
Three months later, my husband left. He only gives money for the maintenance of the child; he does not pay alimony to his wife. The child is seven months old, the wife, for obvious reasons, does not work.
In this situation, is the husband obliged to pay alimony for the maintenance of his wife?
In accordance with paragraph 1 of Article 89 of the Family Code of the Russian Federation
spouses are obliged to financially support each other.
According to paragraph 2 of Article 89 of the Family Code of the Russian Federation
in the event of refusal of such support and the absence of an agreement between the spouses on the payment of alimony, the wife has the right to demand the provision of alimony in court from the other spouse who has the necessary means for this during pregnancy and for three years from the date of birth of the common child.
Based on this article, the husband is obliged to financially support his wife in need on a voluntary basis, providing funds for the maintenance of the spouse.
In case of refusal, the wife has the right to demand alimony from her husband for the maintenance of his wife, by filing a complaint with the court for this purpose. statement of claim for the maintenance of the spouse.
Please note: according to the provisions of Article 89 of the Family Code of the Russian Federation, mutual material support by spouses for each other is one of those important responsibilities that arise from the moment of marriage.
The state of de facto marital relations in the absence of an officially registered marriage between persons does not give the right to one of them to demand from the other the provision of appropriate material support, and does not depend on the duration of the persons being in de facto marital relations.
Situation No. 2.
The same situation described in situation No. 1, only the marriage between the spouses has been dissolved.
Is the husband obliged in this situation to provide maintenance for his ex-wife?
Cases when a husband is obliged to pay alimony to his ex-wife, that is, after divorce, are established by Article 90 of the Family Code of the Russian Federation.
In accordance with paragraph 1 of Article 90 of the Family Code of the Russian Federation
has the right to demand the provision of alimony in court from a former spouse who has the necessary means for this ex-wife during pregnancy and within three years from the date of birth of a common child.
Thus, the Family Code Russian Federation contains as direct condition for one spouse to receive alimony from the other, an indication of the latter’s financial ability to pay it.
This means that the payment of alimony by the obligated person should not lead to a significant decrease in the level of his well-being, an approximate criterion of which is the subsistence minimum (decision of the magistrate of the judicial district No. 2 of the Maslyaninsky district of the Novosibirsk region dated February 15, 2016 in case No. 2-1/2016. ).
As can be seen from Article 90 of the Family Code of the Russian Federation, the grounds for collecting alimony for the maintenance of a former spouse are identical to those listed in paragraph 1 of Article 89 of the Family Code of the Russian Federation.
That is, alimony for the maintenance of a former spouse can be collected by the court during pregnancy and within three years from the date of birth of a common child.
To do this, you need to file a claim with the court for maintenance of your ex-wife.
As you have probably already noticed, in the case where alimony is being collected for the maintenance of a spouse, as well as when alimony is being collected for the maintenance of a former spouse, a mandatory requirement for the court to satisfy a claim for the maintenance of a spouse is that the defendant spouse has the necessary funds for this.
This directly follows from the text of Articles 89 and 90 of the Family Code of the Russian Federation. When considering a case and in case of satisfaction of a claim for the recovery of alimony for the maintenance of a spouse, the amount of alimony collected from the spouse (former spouse)
determined by the court based on the financial and marital status of the spouses (former spouses) and other noteworthy interests of the parties in a fixed sum of money payable monthly (Article 91 of the Family Code of the Russian Federation).
According to paragraph 2 of Article 117 of the Family Code of the Russian Federation
the amount of alimony collected by a court decision in a fixed sum of money, for the purpose of indexation, is established by the court as a multiple of the subsistence minimum, determined in accordance with the rules of paragraph 1 of this article, including the amount of alimony can be established as a fraction of the subsistence minimum.
The amount of alimony collected for the maintenance of a spouse (former spouse) is determined not as a percentage (share) of the salary or other income of the former spouse, but as a fixed sum of money.
However, both alimony for the maintenance of a spouse and alimony for the maintenance of a former spouse are established as multiples of the subsistence level or as a share of the subsistence level.
This procedure for determining the amount of alimony is established in order to protect the rights of the spouse from inflation, since in accordance with paragraph 1 of Article 117 of the Family Code of the Russian Federation, alimony to the spouse can be indexed:
The indexation of alimony collected by a court decision in a fixed sum of money is carried out by the organization or other person to whom the writ of execution (a copy of the writ of execution) was sent in the cases established by Part 1 of Article 9 and Clause 8 of Part 1 of Article 47 of the Federal Law of October 2, 2007 N 229-FZ “On Enforcement Proceedings”, or a bailiff within the framework of enforcement proceedings in proportion to the increase in the cost of living for the relevant socio-demographic group of the population established in the relevant subject of the Russian Federation at the place of residence of the person receiving alimony, and in the absence of subject of the Russian Federation of the specified value is proportional to the increase in the cost of living for the corresponding socio-demographic group of the population, established for the Russian Federation as a whole.
Thus, when considering claims for the collection of alimony for the maintenance of a spouse (ex-wife) until the common child reaches the age of three, it is necessary to be guided by the amount established for the socio-demographic group of the population “ working population“, since a spouse (ex-wife) who is on parental leave for up to 3 years is not considered disabled.
The magistrate came to correct conclusion on the amount of alimony collected for the maintenance of the former spouse ——— rubles, which is 0.2287 of the legal minimum subsistence level in the Saratov region for the working population for the 3rd quarter of 2015, subject to indexation in proportion to the size of the subsistence level for the working population in the Saratov region (Appeal ruling of the Zavodsky District Court of Saratov dated May 10, 2016 in case No. 11-42/16).
Grounds for collecting alimony for the maintenance of a spouse (former spouse)
The only legal basis for collecting alimony for spousal support is the presence of a dependent minor child under the age of 3 years by the spouse (former spouse).
I draw your attention to the fact that the right of a wife during pregnancy and for three years from the date of birth of a common child to receive alimony from her husband is not made dependent on her disability and need.
For the right to alimony to arise, it does not matter whether the wife works during pregnancy and for three years after the birth of the child or devotes herself entirely to caring for the child.
The main condition for the emergence of a wife's right to receive alimony during pregnancy and in connection with the birth of a child is the bearing and birth of a common child.
The law proceeds from the fact that during this period a woman needs rest, special nutrition, treatment, etc.
All material costs associated with bearing and caring for a common child must be borne equally by both spouses, even if the wife is financially secure.
Based on my own judicial practice, I will say that courts often indicate in a decision that the wife needs financial assistance, does not work and does not intend to work during the entire period of child care.
At the same time, the question of the degree of need of the wife for material assistance has important legal significance for determining the amount of alimony for the maintenance of the spouse (former spouse).
Resolving the issue of the amount of alimony, the magistrate determined its amount, bearing in mind that due to being busy caring for a common child until he reaches the age of three, the child’s mother does not have the opportunity to work and receive wages that ensure her own maintenance, and therefore are subject to recovery in her favor, alimony must be of a real nature (Appeal ruling of the Lysvensky City Court of the Perm Territory dated November 27, 2015 in case No. 11-65/2015).
If the wife does not have her own funds, alimony for the maintenance of her spouse (former spouse) must be collected in an amount sufficient to satisfy her basic living needs and to cover special additional expenses associated with pregnancy and childbirth.
If she has her own funds, alimony for the maintenance of her spouse (ex-wife) should be sufficient only to cover these expenses.
The magistrate rightfully took into account that the plaintiff currently does not have the opportunity to find a job because she is busy caring for a small child.
However, the appellate court does not agree with the conclusions of the magistrate regarding the amount of money collected, since the legal norms regulating the legal relations that have arisen provide for the obligation of the spouses to financially support each other, and not support each other in full, while the amounts recovered in favor of the plaintiff are aimed at her full monthly maintenance (Appeal ruling of the Pushkin City Court of the Moscow Region dated November 11, 2014 in case No. 11-97/2014).
Grounds for exemption from paying alimony for the maintenance of a spouse (former spouse)
The grounds for exemption from paying alimony for the maintenance of a spouse (former spouse) can only be:
- the child reaches 3 years of age,
- or such a change in the financial or marital status of the parties that would deprive the alimony payer of the ability to pay them,
- or the recipient of alimony has a complete lack of need for it.
In this case, the presence of a set of specified conditions is not required. It is enough to have at least one of them.
The obligation to provide maintenance to a spouse for up to 3 years falls on the other spouse only if he himself has the necessary means to pay alimony. I already wrote about this above in my article.
The availability of the necessary funds is understood as such a level of security for the spouse at which, after paying alimony, he himself will remain provided with funds in the amount of at least the subsistence level.
The availability of the necessary funds is determined by the court, taking into account all the circumstances of a particular case (see the Appeal ruling of the Motovilikha District Court of Perm dated 12/09/2015 in case No. 11-312/2015, the Appeal ruling of the Judicial Collegium for Civil Cases of the Omsk Regional Court dated 09/07/2016 . in case No. 33-9018/2016).
The court has the right, in the presence of special circumstances, to consider that the spouse does not have the necessary funds, even if after paying alimony he will still have funds in the amount of the subsistence minimum, for example, if the paying spouse, for health reasons, needs significant funds for treatment, etc.
I would like to immediately draw your attention to the fact that the grounds for releasing a spouse from the obligation to support another spouse, provided for in Article 92 of the Family Code of the Russian Federation in in this case not applicable.
Article 92 of the Family Code of the Russian Federation talks about cases where a spouse is released from the obligation to support another disabled spouse in need of help.
Based on the provisions of Articles 89 and 92 of the Family Code of the Russian Federation in their interrelation, the grounds listed in Article 92 of the Family Code of the Russian Federation are not legally significant circumstances in disputes regarding the collection of alimony for the maintenance of a spouse (former spouse) until the child reaches the age of 3 years, because Article 92 The Family Code of the Russian Federation is not applicable to controversial legal relations, since the plaintiff belongs to a different category of persons who have the right to demand alimony (wife during pregnancy and for three years from the date of birth of their common child).
In other words, a wife during pregnancy and for three years from the date of birth of a common child is not considered an incapacitated needy spouse.
Okay, let's leave the article. 92 of the Family Code of the Russian Federation alone. I hope you have clearly understood that in cases of alimony for spousal support, it is not applicable.
At the same time, there is another interesting provision in the Family Code of the Russian Federation, namely, paragraph 2 of Article 119:
The court has the right to refuse to collect alimony from an adult capable person if it is established that he has committed an intentional crime against the person obligated to pay alimony or in the event of unworthy behavior of an adult capable person in the family.
Here's a real example. The wife cheated on her husband, the husband filed for divorce, the couple divorced. Subsequently, the wife filed a claim in court for spousal support.
Will the fact of treason affect the court's decision and how can this be proven? I believe that in court the ex-wife is unlikely to confirm the fact of infidelity.
It will be almost impossible to prove the fact of treason in court. Only if you don’t bring witnesses or provide a video recording, but in such cases, often, there is neither one nor the other.
At the same time, the burden of proving the immorality of your ex-wife’s behavior will fall on you, and accordingly, you will have to prove the fact of infidelity.
If you manage to do this, then you will have every chance of being exempt from paying alimony for the maintenance of your ex-wife.
Or here’s another interesting situation that also occurs in my practice.
My ex-husband is on parental leave. In this case, does the ex-wife have the right to demand alimony for her maintenance until the child reaches the age of 3 years?
To answer this question, you need to once again familiarize yourself with the contents of paragraph 2 of Article 89 of the Family Code of the Russian Federation and paragraph 1 of Art. 90 of the Family Code of the Russian Federation.
It states that the wife has the right to demand alimony - regardless of who works and who is on parental leave and actually takes care of him.
Therefore, my answer to the question whether a wife has the right to demand alimony for herself, despite the fact that her husband ( ex-husband), and not she is on maternity leave, will be affirmative.
Why? Because in this case, alimony is collected not for the maintenance of the child, but for the maintenance of the wife after childbirth.
These alimony payments are in no way connected with child care, since the above-mentioned articles of the Family Code of the Russian Federation do not make the right to receive alimony dependent on where the child is and whether he is even alive or not.
For an ex-husband, in such a case there are provisions in Chapter 13 of the Family Code of the Russian Federation.
It's quite simple. If the father maintains the child, he has the right to demand alimony from the child’s mother - and there are quite a lot of such decisions.
The wife received alimony and now got a job. Advice for alimony payers
As a matter of fact, I included this section in the article not by chance.
Such life situation occurs quite often in practice.
Here's an example.
A man named Yuri sought legal advice from a certain lawyer Alexander from Moscow.
The situation itself and the lawyer’s response are outlined
Pay attention to what I highlighted in the brown fill.
By the phrase “you cannot file for cancellation of alimony,” the lawyer means that you do not have the right to file a claim for exemption from paying alimony.
Is it really? Let's figure it out. Here's an example from judicial practice.
Alimony for spousal (ex-spouse): procedural issues
When a wife (ex-wife) files a claim for alimony for her maintenance during pregnancy, the husband cannot file a counterclaim to challenge his paternity, since this is possible only after the birth of the child in connection with the challenge of the paternity record.
However, the husband has the right to present indisputable evidence that his wife (ex-wife) is not pregnant with his child, for example, a medical certificate stating that for medical reasons he cannot have children, etc.
The courts must examine such evidence, and if there is indisputable evidence that the child being carried by the spouse (ex-wife) is not common, the claim should, in theory, be denied.
Why in theory? But because some of our courts sometimes allow a different interpretation, based on the fact that Art. 89 of the Family Code of the Russian Federation does not contain wording that the wife must be pregnant with a common child, and they do not attach legal significance to such evidence, satisfying the demands of the spouse (former spouse) with reference to the fact that she is pregnant.
This interpretation of the commented article took place in the decision of one of the courts in the city of Guryevsk, Kemerovo region.
The court there expressly stated that a wife during pregnancy has the right to receive maintenance from her husband, regardless of whether she is pregnant from her husband or from another person.
If the claim is brought after the birth of the child, the defendant has the right to file a counterclaim to challenge the record of paternity.
If during the proceedings of this case it is established that the defendant is not the father of the child, then this circumstance in itself does not provide grounds for the return of alimony received by the plaintiff during pregnancy.
To do this, it is necessary to prove that the plaintiff knew for sure that she was pregnant not from the defendant, and submitted false documents to the court or provided false information.
A claim for the recovery of alimony for the period of pregnancy can be brought from the moment this fact is established and confirmed by medical documents.
The spouse (former spouse) has the right to file a claim for the recovery of alimony simultaneously for the period of pregnancy and a three-year period after the birth of the child.
Otherwise, she loses a significant part of the funds for her maintenance, since immediately after the birth of the child she cannot go to court with a new claim for obvious reasons, and alimony is awarded from the day the claim is filed.
In the event of termination of pregnancy or stillbirth, the defendant has the right to demand termination of alimony payments.
Alimony for the maintenance of a wife can be collected by the court from the moment she becomes pregnant until the expiration of three years from the date of birth of the common child.
The plaintiff in cases of recovery of alimony for the maintenance of a spouse (former spouse) is:
- ex-wife, if the marriage was dissolved during her pregnancy, and the claim was filed during pregnancy or within three years after the birth of a common child;
- wife (ex-wife) in the event of the birth of a common child before the divorce;
- wife (ex-wife) in the event of the birth of a common child after divorce, if the father of the child is the ex-husband.
At the same time, the ex-husband is assumed to be the father of the ex-wife’s child - if the child was born within 300 days from the date of divorce (clause 2 of Article 48 of the Family Code of the Russian Federation).
The defendant in cases of recovery of alimony for the maintenance of a spouse (ex-wife) is the husband (ex-husband).
Which court should I file a claim for spousal support?
The spouse (former spouse), acting as the plaintiff, files a claim for her maintenance until the child reaches the age of 3 years in the district court.
I wrote about this in detail in my other article in the section “Which court should I go to when filing?”
In the same article, in the corresponding section, you can easily find information about the state duty for filing a statement of claim.
And I won’t repeat myself here.
Claim for spousal support
In this section of the article I present to your attention my sample application for spousal support.
I am showing it to you only in terms of volume. This claim for spousal support is 100% effective and has been perfected over the years of my judicial practice.
The texts and wording that I used in this lawsuit are hidden from reading. The logic here is simple: mindlessly copying wording from someone else’s claim will not lead to anything good.
If you need a professionally drafted claim for the recovery of alimony for the maintenance of your spouse (ex-wife), taking into account your specific situation - contact me, I will draw up the best claim for you.
Many wives (ex-wives) believe that cases for the collection of alimony for spousal support are winning.
Nothing like this? if a professional works on the defendant’s side. Further, using one of the examples, you will clearly see how important it is to enlist the support of a professional in this matter, instead of using crooked claim templates scattered on the Internet. So, read on.
Court decision in the case of collecting alimony for the maintenance of the ex-wife
Having studied the case materials, as well as the evidence presented in the case, the court made the following decision:
That's all.
The objections prepared by me helped the defendant win the dispute in the case of collecting alimony for the maintenance of his ex-wife.
If you are a defendant in the case, please contact me and I will help you draw up a competent objection to the statement of claim for the recovery of alimony for spousal support.
Arbitrage practice
Judicial practice in cases of collection of alimony for the maintenance of a spouse (ex-wife) until the common child reaches the age of 3 years is based on the fact that the distribution of the burden of proof in claims for collection of alimony is general character, provided for in Article 56 of the Civil Procedure Code of the Russian Federation.
Accordingly, the obligation to prove whether the defendant has the necessary funds is determined by the plaintiff’s demands and the defendant’s objections.
The court, when deciding whether to accept a statement of claim for the recovery of alimony for a spouse (former spouse), must keep in mind that such a statement can only be accepted if there is no notarized agreement on the payment of alimony between the plaintiff and the defendant.
At the same time, according to the general position, if the plaintiff, simultaneously with the requirement to collect alimony in court, raises the issue of terminating the agreement to pay alimony or declaring it invalid, then the statement of claim, including these requirements, is subject to acceptance for consideration by the magistrate.
Judicial practice in cases of collection of alimony for the maintenance of a spouse (former spouse) shows that when determining the amount of alimony to be collected for the maintenance of a spouse (former spouse) until the child reaches the age of 3 years, judges take into account the financial and marital status of both parties, including the amount of earnings , other income, the presence of other obligations (loans, alimony obligations), family composition, the presence or absence of other dependent persons and other circumstances.
The collection of alimony for child support by a court decision also cannot be a basis for reducing the guaranteed level of maintenance for the spouse caring for him.
Judicial practice in cases of collection of alimony for the maintenance of a spouse (former spouse) is numerous, and if you wish, you can find court decisions yourself by using an Internet search.
With your permission, I will end my story here. I hope my article will help both plaintiffs and defendants in cases of alimony for the maintenance of a spouse (former spouse).
If you still have any questions about the topic of today’s article, ask them in the comments, or call me and we will discuss your situation personally.
SOLUTION
IN THE NAME OF THE RUSSIAN FEDERATION
DD.MM.YYYY<адрес>
Mytishchi City Court<адрес>as part of federal judge A.V. Goncharov,
with the secretary of the court session, FULL NAME3,
having considered in open court civil case No., according to the claim of M A A to M I I for the recovery of alimony for the maintenance of the ex-wife,
INSTALLED:
The parties were in a registered marriage from DD.MM.YYYY to DD.MM.YYYY, from whom they have a minor son, FULL NAME1 Tagir, DD.MM.YYYY year of birth.
M A.A. filed a lawsuit against M.I. on the collection of alimony for the maintenance of the ex-wife until his son Tagir reaches the age of three years, in a fixed sum of money, in the amount<данные изъяты>.
In support of the claim, she indicated that she is currently on maternity leave, and therefore is unable to work, and therefore does not have the income necessary to support herself.
At the court hearing, plaintiff M A.A. supported the stated claim in full, explained that she lives with her son Tagir in an apartment with her parents, who are pensioners and are not able to provide her with financial assistance. When the child reaches the age of one and a half years, payment social benefits stopped. She is unable to go to work because her child needs constant care. She needs the alimony funds claimed for collection from the defendant to pay part of the costs of rent and utility bills, purchase food and clothing. When determining the amount of alimony presented for collection, she proceeded from the size of the subsistence minimum established in the territory<адрес>. At the same time, her ex-husband M.I. has the opportunity to provide her with financial assistance, but refuses to do so.
Defendant M I.I. at the court hearing, he did not recognize the stated claim, explained that he should not bear alimony obligations for the maintenance of his ex-wife, and asked to take into account that in fact he had been in a marital relationship with the plaintiff for about a year and a half, until DD.MM.YYYY. During the marriage, on the part of M.A.A. there were cases of her unworthy behavior, in particular, leaving with their common child, without his consent, to other cities. Currently he does not have a job, despite the fact that at his last place of work his earnings were about<данные изъяты>, of which? he must pay part of it to the plaintiff as alimony for the maintenance of her minor son,<данные изъяты>per month is the rent for an apartment in<адрес>, and in addition to this, he provides financial assistance to his parents, who are pensioners. He asked that the stated claim be dismissed in full.
Having heard the plaintiff, the defendant, and examined the case materials, the court finds the stated claim subject to partial satisfaction, taking into account the following:
In accordance with Art. 90 part 1, paragraph 1 of the RF IC, the ex-wife has the right to demand alimony in court from a former spouse who has the necessary means for this during pregnancy and for three years from the date of birth of their common child.
At the court hearing it was established that the infant son of the parties FULL NAME1 Tagir was born during the stay of M I.I. and M A.A. in a marriage that was dissolved by a decision of the Mytishchi City Court dated DD.MM.YYYY, which entered into legal force DD.MM.YYYY.
These circumstances are confirmed by the certificate of marriage registration between M.I. examined by the court. and M A.A. from DD.MM.YYYY, birth certificate FULL NAME1 Tagir, DD.MM.YYYY year of birth, in which the child’s father is indicated as M I.I., mother as M A.A. and the decision of the Mytishchi city court from DD.MM.YYYY, which, according to the claim of M I.I. the said marriage was dissolved.
As follows from the certificate examined by the court, drawn up by an employee of the Municipal Unitary Enterprise "Settlement Center", FULL NAME1 Tagir<данные изъяты>year of birth, permanently registered at the place of residence together with the plaintiff M A.A. V<адрес>, V<адрес>.
The fact that the minor child actually lived with the mother, the plaintiff in the case, was not disputed by the parties at the court hearing.
Checking the plaintiff’s need for financial assistance from her ex-husband, the court finds the arguments of M.A. worthy of attention. about her necessary expenses related to paying part of the utilities, purchasing food, clothing, etc.
General Director of LLC<данные изъяты>FULL NAME5 in his certificate from DD.MM.YYYY indicated that M A.A. works in the specified organization with DD.MM.YYYY as a senior economist. Currently on maternity leave. To DD.MM.YYYY monthly allowance, until the child reaches the age of one and a half years, is<данные изъяты>, after the child reaches the age of one and a half years, no payments will be made.
Thus, at the court hearing it was established that the plaintiff M A.A. is currently on parental leave until the age of three, is not currently exercising labor activity, and therefore has no income, needs to provide her with financial assistance, and has the right to apply to her ex-spouse to collect alimony for her maintenance
Assessing the arguments of the defendant M.I., who objects to the recovery of alimony from him for the maintenance of his ex-wife and referred to the short period of marriage with the plaintiff, the court treats these arguments critically, while taking into account that the parties were in a registered marriage for more than two years , have a child from this marriage, therefore M’s decision to marry was conscious and mutual, and the period of marriage itself does not indicate its short-term duration.
Under such circumstances, the court did not establish any grounds for the release of M.I. from the statutory obligation to support the ex-wife, in accordance with the provisions of Art. 92 RF IC.
The court finds the defendant's arguments about the need to provide financial assistance to his parents to have no legal significance when considering a claim for the recovery of alimony for the maintenance of his ex-wife, since M I.I. no evidence was presented that he had alimony obligations to support his parents.
When assessing the defendant’s ability to provide financial assistance to his ex-wife, the court takes into account the following:
According to the examined certificate in Form 2 of personal income tax, the salary of M.I. at his last place of work at OJSC<данные изъяты>was more than<данные изъяты>rubles
In the work book of M.I. There is a record No. dated DD.MM.YYYY about the termination of the employment contract at the initiative of the employee.
According to the defendant, at the time the case was considered by the court, he was not employed and does not have a permanent place of work.
Under such circumstances, the court comes to the conclusion that at present M.I., without a permanent place of work, has irregular, changing earnings.
At the same time, the court takes into account that in the absence of a place of work, the defendant, who is a resident of another constituent entity of the Russian Federation, has the opportunity to pay rent for living space in<адрес>, the size of which, according to his own arguments, is no less<данные изъяты>rubles per month.
Taking into account the above, the court comes to the conclusion that the defendant, taking into account his financial situation, has the opportunity to provide financial assistance to his ex-wife until their son Tagir reaches the age of three years.
At the same time, when determining the amount of alimony, the court takes into account the defendant’s arguments about his obligation to the plaintiff to pay child support, which was not denied by M.A.A. at the court hearing, and considers it reasonable and fair, as well as proportionate, both to the defendant’s earnings and to the plaintiff’s need, to recover from M.I. in favor of M A.A. alimony for the maintenance of the ex-wife, until M Tagir reaches the age of three years, in a fixed sum of money, in the amount<данные изъяты>rubles monthly.
Taking into account that, as follows from the stamp of the incoming correspondence, the plaintiff applied to the court for the protection of her violated right DD.MM.YYYY, and by virtue of Article 211 of the Code of Civil Procedure of the Russian Federation, the court decision to collect alimony is subject to immediate execution, the court collects alimony from the defendant in favor of the plaintiff starting from DD.MM.YYYY.
Based on the above, guided by Art. 194-198 Code of Civil Procedure of the Russian Federation, court,
DECIDED:
The claim of M Ai k M Il for the recovery of alimony for the maintenance of his ex-wife is partially satisfied.
Collect from M.I. in favor of M A.A. alimony for the maintenance of the ex-wife, in a fixed sum of money, in the amount<данные изъяты>rubles monthly, starting from DD.MM.YYYY until M Tagir, DD.MM.YYYY year of birth, reaches the age of three years.
The decision can be appealed to the Moscow Regional Court, through the Mytishchi City Court, within 10 days.
Judge A.V. Goncharov
Court decision to collect alimony
Recover from full name, DD.MM.YYYY year of birth, native<адрес>, residing at:<адрес>, information about the place of work of which the court does not have, in favor of his full name, alimony for the maintenance of his son, full name, DD.MM.YYYY year of birth, in the amount of 1/4 (one quarter) of all types of earnings monthly, starting from DD.MM.YYYY and up to the child's coming of age.
Court decision on the inaction of bailiffs to collect alimony
Kanakhina's application is to be satisfied in terms of declaring illegal the inaction of the bailiffs of the Savelovsky department of the SSP service of the Federal Bailiff Service of Russia in Moscow, to assign the duty to the bailiff to index alimony for the maintenance of a minor child, subject to recovery in favor of Kanakhina E.E. with full name, what to inform the collector about.
Court decision to collect alimony in a fixed amount
To collect from the full name alimony in favor of the full name for the maintenance of his son Artyom, DD.MM.YYYY year of birth in the amount of 1 minimum wage (1 minimum wage as of DD.MM.YYYY is equal to 4330 rubles, this amount is subject to indexation..
Court decision to collect alimony for the maintenance of a disabled spouse
Novozhilova V.Ya. filed a lawsuit against N.N. Novozhilov. and asked to recover from the defendant alimony for the maintenance of a disabled, needy ex-spouse in the amount of 10,000 rubles monthly.
Court decision to collect alimony for the maintenance of the ex-wife
Collect from Mavliyarov I.I. in favor of Mavliyarova A.A. alimony for the maintenance of the ex-wife, in a fixed sum of money, in the amount of rubles monthly, starting from and until Mavdliyarov reaches Ta, DD.MM.YYYY year of birth, the age of three years.
Court decision on collection of alimony debt, Article 113 of the RF IC
Collect from Sokolov D.V. in favor of Smirnova E.N. debt on alimony obligations for the period from July 17, 2005 to February 5, 2009 in the amount of 214,159 rubles
Court decision to deregister a former spouse
According to the claim of Klimova N.V. to Klimov S.A. on recognition as having lost the right to use residential premises, deregistration.
Relations related to alimony obligations of spouses and former spouses are regulated, in particular, by the following provisions of the articles of the Family Code of the Russian Federation:
However, the court did not take into account that spouses A-you divorced in 2003 and their relationship is regulated by Art. 90 of the RF IC, according to which the right to demand alimony in court from a former spouse who has the necessary means for this, has a disabled, needy former spouse who became disabled before the dissolution of the marriage or within a year from the date of dissolution of the marriage.
A spouse is disabled if he has reached the ages of 60 and 55 years (a man or a woman, respectively), or is a disabled person with restrictions on work activity.
In connection with the above, the court’s conclusion that A. is not incapacitated for work contradicts the requirements of the law.
The case contains photocopies of documents confirming that the plaintiff is a disabled person of group 2 with limited ability to work (Determination of the Presidium of the Moscow Regional Court dated July 21, 2004 N 409).
From the court decision in the case of recovery of alimony for a spouse
Refusing the claim for the recovery of alimony for the maintenance of K.O., the magistrate proceeded from the fact that Art. 90 of the RF IC recognizes the right to collect alimony for an ex-wife during pregnancy and for three years from the date of birth of the child; a woman in a de facto marital relationship has no right to demand from her de facto spouse payment of alimony for her maintenance during pregnancy and until the completion of three years of common child.
However, from the case materials it is clear and confirmed by the marriage registration certificate that K.Yu. and K.O. (before bro. Z.) were in a registered marriage since June 10, 2000, from the marriage they have daughters A., .. year of birth, and V., ... year of birth, who by the time they applied for alimony in court and received permission cases before the court have not reached the age of three years.
The court's conclusion that the parties were not spouses, but were in a de facto marital relationship, is not based on the case materials and is refuted by the available marriage registration certificate. The fact of the state in a registered marriage was not disputed by the defendant during the trial.
In this situation, the plaintiff had and currently has the right to demand from her husband (former spouse) alimony for herself until the children turn three years old (Resolution of the Presidium of the St. Petersburg City Court of March 28, 2007 N 44g-194/07).
Constitutional Court of the Russian Federation on the collection of alimony for a former spouse
The court of general jurisdiction, guided, inter alia, by paragraph 1 of Article 90 and Article 91 of the Family Code of the Russian Federation, satisfied the demands of citizen T.N. Brezhneva to citizen O.N. Brezhnev to collect alimony for her maintenance until their common child reaches the age of three and alimony for the maintenance of the child.
In his complaint to the Constitutional Court of the Russian Federation, O.N. Brezhnev asked to recognize paragraph 1 of Article 90 and Article 91 of the Family Code of the Russian Federation as contrary to the Constitution of the Russian Federation, its Articles 15, 17, 18, 19, 20, 37, since they allow the courts to collect alimony for the maintenance of a former spouse from the income of the alimony payer, the amount of which after paying child support, it turns out to be below the subsistence level.
Refusing to accept the complaint for consideration, the Constitutional Court of the Russian Federation indicated the following.
Paragraph 1 of Article 90 of the Family Code of the Russian Federation, which establishes the grounds for the emergence of the right to judicially demand the provision of alimony from a former spouse, as well as this Code, which establishes the rule for determining the amount of such alimony, specifies the construction principle enshrined in paragraph 1 of its Article 1 family relations based on mutual assistance and responsibility to the family of all its members. Moreover, by virtue of these norms, the obligation to pay alimony for the maintenance of a former spouse can be imposed by the court only on persons who have the necessary means for this.
Thus, the contested norms, aimed at ensuring the preservation of the necessary level of life support for both the recipient and the payer of alimony, cannot in themselves be considered as violating the constitutional rights of the applicant listed in the complaint (Determination of the Constitutional Court of the Russian Federation dated April 22, 2010 No. 546- O-O "On the refusal to accept for consideration the complaint of citizen Oleg Nikolaevich Brezhnev about the violation of his constitutional rights by paragraph 1 of Article 90 and Article 91 of the Family Code of the Russian Federation").
Alimony obligations of spouses. Arbitrage practice
The Certificate of the Perm Regional Court dated March 10, 2008 “On the application of legislation on alimony obligations”) contains clarifications with examples from the practice of considering cases:
In a dispute over the collection of alimony for the maintenance of a spouse (ex-spouse), the court, first of all, needs to establish whether the parties are subject to an alimony obligation: whether the plaintiff has the right to receive maintenance from the defendant and whether the defendant has an obligation to provide the plaintiff with maintenance.
Art. 89 of the RF IC provides for the obligation of a spouse to financially support the other spouse. In the event of refusal of such support and the absence of an agreement on the payment of alimony, the following have the right to demand the provision of alimony in court from the other spouse who has the necessary means for this:
disabled needy spouse;
wife during pregnancy and for three years from the date of birth of a common child;
a needy spouse caring for a common disabled child until the child reaches the age of eighteen or a common child who has been disabled since childhood, group 1.
According to the provisions of paragraph 1 of Art. 90 RF IC the right to demand provision alimony in court from the ex-spouse, having the necessary means, have:
ex-wife during pregnancy and for three years from the date of birth of their common child;
a needy ex-spouse caring for a common disabled child until the child reaches the age of eighteen or a common child who has been disabled since childhood, group 1;
a disabled, needy ex-spouse who became disabled before the dissolution of the marriage or within a year from the date of dissolution of the marriage;
needy spouse who has reached retirement age no later than five years from the date of divorce, if the spouses have been married for a long time.
It should be noted that the incapacity for work of the defendant, who, like the plaintiff, has reached retirement age, does not in itself exclude his obligation to support his spouse. Thus, the payment of alimony to one’s spouse falls on the other spouse, regardless of his or her ability to work.
Legal significance in this case is given to its material security, and not the state of working ability.
The obligation to provide maintenance to one's spouse falls on the other spouse only if he himself has the necessary means to pay alimony. The availability of the necessary funds is understood as such a level of security for the spouse at which, after paying alimony, he himself will remain provided with funds in the amount of at least the subsistence level. The availability of the necessary funds is determined by the court, taking into account all the circumstances of a particular case. The court has the right, in the presence of special circumstances, to consider that the spouse does not have the necessary funds, even if after paying alimony he will still have funds in the amount of the subsistence minimum, for example, if the paying spouse, for health reasons, needs significant funds for treatment, etc.
When determining the availability of necessary funds, all types of earnings and income of the spouse are taken into account; whether he has income-generating property; the presence of persons to whom he is legally obliged to provide maintenance and who are actually dependent on him; the presence of mandatory payments that he must make based on a court decision or for other reasons. It does not take into account the presence of persons (parents, adult children) to whom the spouse paying alimony may, in turn, apply for alimony, having become needy as a result of paying alimony to his spouse.
By the decision of the magistrate of judicial district No. 38 of the Sverdlovsk District Court of Perm, alimony was recovered from V. in favor of his former disabled wife. When deciding to satisfy the claims, the judge reasonably took into account the fact that, despite the defendant providing daily financial support in the amount of 150 rubles, this amount is insufficient for living.
The court, when deciding whether to accept a statement of claim for the recovery of alimony for a spouse (former spouse), must keep in mind that such a statement can only be accepted if there is no notarized agreement on the payment of alimony between the plaintiff and the defendant.
At the same time, according to the general position, if the plaintiff, simultaneously with the demand for the collection of alimony in court, raises the issue of terminating the agreement on the payment of alimony, or declaring it invalid, then the statement of claim, including these requirements, is subject to acceptance for consideration by the magistrate.
The amount of alimony collected from spouses and former spouses in court is determined in a fixed monetary amount based on the financial and marital status of the spouses (former spouses) and other relevant interests of the parties. They are paid monthly.
Since the legislator refers to the funds collected for the maintenance of disabled spouses as alimony, in court decisions they should not be referred to as funds for the maintenance of the spouse, which is often found in judicial practice.
The right to demand alimony in accordance with Art. 89, 90 of the RF IC from a former spouse has a spouse who was only in a registered marriage. Thus, the Ordzhonikidze District Court of Perm overturned the decision of the magistrate, which satisfied the claims of G. against Z. for the recovery of alimony for their maintenance until the child reaches three years of age due to the fact that the marriage between the parties was not registered, and therefore the demands The plaintiffs' claim for alimony for their maintenance is not based on the law.
In addition, it should be noted that the right to claim alimony was granted to both the former spouse on the basis of Art. 90 of the RF IC, and the spouse during the marriage in accordance with Art. 89 RF IC. At the same time, the Kirovsky District Court of Perm overturned the absentee decision of the magistrate to collect alimony for the maintenance of a disabled spouse. One of the grounds for overturning the court decision was that since at the time the decision was made the parties were in a registered marriage, the right to claim alimony in court was granted to the ex-spouse, there were no grounds for satisfying K.’s claim.
Provides for cases in which a spouse may be released from the obligation to support another disabled spouse or limit this obligation to a certain period both during the marriage and after its dissolution:
if the incapacity for work of the spouse in need of help occurred as a result of the abuse of alcoholic beverages, narcotic substances or as a result of his commission of an intentional crime;
if the spouses are married for a short period of time;
in case of unworthy behavior in the family of a spouse requiring payment of alimony.
Release of a spouse from the obligation to support another spouse or a limitation to a certain period both during the marriage and after the dissolution is right, and not the responsibility of the court.
At the same time, paragraph 4 of paragraph 2 of Art. 120 of the RF IC, the court is given the right to terminate alimony obligations if the court recognizes the restoration of working capacity or the cessation of the need for assistance of the alimony recipient.
When considering disputes regarding alimony obligations, the courts must keep in mind the fact that the court retains the right to limit the collection of alimony to a certain period, as indicated in the decision, while determining the period during which alimony is paid, or a specific date for the termination of these payments .
On the collection of alimony by a former spouse whose incapacity for work occurred before marriage
Canceling the decision of the magistrate and the court of appeal and making a new decision to reject the claim, the presidium of the Novgorod Regional Court indicated that the court’s conclusion that M.O. has the right to receive alimony from M.D. as a disabled ex-wife in need is not based on the law, since the concept “before the dissolution of the marriage” defines the period of marital relations from the moment of marriage until its dissolution, i.e. The former spouse whose incapacity for work occurred exclusively during the marriage or within a year from the date of its dissolution has the right to claim funds for his maintenance.
However, the Judicial Collegium believes that these conclusions of the supervisory court are based on incorrect interpretation and application of substantive law, which influenced the outcome of the case.
According to Art. 90 (Part 1) of the Family Code of the Russian Federation, the right to demand alimony in court from a former spouse who has the necessary means for this, including a disabled, needy former spouse who became disabled before the dissolution of the marriage or within a year from the date of dissolution of the marriage. According to the current pension legislation, a spouse is disabled if he has reached the ages of 60 and 55 years (a man and a woman, respectively) or is a disabled person with restrictions on work activity. Thus, one of the conditions for the ex-spouse to exercise the right to receive alimony is the presence of his incapacity for work, which occurred before the dissolution of the marriage or within a year from the date of its dissolution. In other words, the law, in particular, connects the payment of alimony to a former needy spouse with the fact that he was incapacitated at the time of divorce (Decision of the Supreme Court of the Russian Federation of August 5, 2008 N 84-B08-4, included in Review of legislation and judicial practice of the Supreme Court of the Russian Federation for the third quarter of 2008, approved by the resolution of the Presidium of the Supreme Court of the Russian Federation dated December 5, 2008).
Collection of alimony from a former spouse is possible only if he has the ability to pay alimony
From the provisions of Part 1 of Art. 90 of the Family Code of the Russian Federation it follows that a prerequisite for satisfying a claim for alimony from a former spouse is the availability of the funds necessary for payments.
The court recognized S. as having the necessary means, but did not indicate in the decision the evidence underlying such a conclusion, which entailed significant violations of procedural law.
Collecting on the basis of Part 1 of Art. 90 of the RF IC from the defendant alimony, the court, in violation of this norm, did not find out whether S. has the necessary funds to pay alimony.
In the supervisory complaint, S. indicates that due to health reasons he does not work; he is dependent on his mother, who is a disabled person of the first group. From the case materials it follows that the defendant’s representative referred to this circumstance at the court hearing, but it was ignored by the court. In addition, S. points out that the plaintiff has an adult, able-bodied son who can provide his mother with financial assistance.
In accordance with Art. 91 of the Family Code of the Russian Federation, in the absence of an agreement between spouses (former spouses) on the payment of alimony, the amount of alimony exacted from the spouse (former spouse) in court is determined by the court based on the financial and marital status of the spouses (former spouses) and other noteworthy interests of the parties in a fixed amount of money payable monthly.
Since the given standards federal law it is provided that when determining the ability of a former spouse to pay alimony for the maintenance of another former spouse, he is obliged to take into account all the interests of the parties that deserve attention, and by virtue of Part 1 of Art. 87 of the Family Code of the Russian Federation, able-bodied adult children are obliged to support their disabled parents in need of help and take care of them, then the presence or absence of other persons obligated to support her by the plaintiff was a fact that must be verified when considering this case (Resolution of the Presidium of the Moscow City court dated October 25, 2007 in case No. 44g-708).
The former spouse does not have the right to demand alimony for her maintenance within 3 years from the date of birth of the child, if the former spouse is not his father
Within the meaning of paragraph 1 of Art. 90 of the RF IC, the former spouse has the right to demand alimony from the former spouse for three years from the date of birth of the common child.
The decision of the Pervomaisky District Court of Vladivostok dated January 16, 2009, which entered into legal force, established that M.A.I. is not the father of M.Z., therefore B.O.V. has no right to demand from M.A.I. provision of alimony for her maintenance.
It is impossible to agree with the opinion of the appellate court, which does not provide for the possibility of exemption from payment of alimony due to the exclusion of information about the father from the child’s birth certificate.
In accordance with Art. 119 of the RF IC, in addition to the financial and marital status of the parties, when releasing the alimony payer from paying them, the court may also take into account other noteworthy interests of the parties. The exclusion of information about the father from the child’s birth certificate is such a noteworthy circumstance (Resolution of the Presidium of the Primorsky Regional Court of October 23, 2009 N 44g-140).
The ex-wife has the right to demand alimony in court from the ex-spouse during pregnancy and for three years from the date of birth of their common child (Article 90 Family Code of the Russian Federation).
N. went to court on the grounds that from June 25, 1999 to October 28, 2005, she was married to N., and they have a child together from their marriage. After the divorce, they lived together with the defendant and ran a common household until April 2006. However, from September to December 2006, they maintained a relationship. When the defendant found out about her pregnancy, he did not give up the child. But after 4-5 months he refused to acknowledge his paternity. On July 23, 2007, the plaintiff gave birth to a son, M. The defendant refused to submit an application to the registry office to register paternity and does not provide her with child support. For the stated reasons, the plaintiff asked the court to establish paternity, to collect alimony from the defendant for the maintenance of the child, and also asked to collect alimony for her own maintenance.
By the decision of the Belomorsky District Court, the claims were satisfied. The court found that the defendant is the father of the child M., born on July 23, 2007 to the plaintiff.
Alimony was collected from the defendant in favor of the plaintiff for the maintenance of her son in the amount of 1/6 of her earnings and other income monthly from 08/08/2007 until the child reaches the age of majority.
By the said court decision, alimony for her maintenance was recovered monthly from the defendant in favor of the plaintiff in the amount of 30 minimum wages from 08.08.2007 to 23.01.2009.
The cassation ruling of the judicial panel for civil cases of the Supreme Court of the Republic of Karelia left the decision of the Belomorsky District Court of the Republic of Kazakhstan unchanged.
The Presidium of the Supreme Court of the Republic of Karelia canceled court decisions regarding the recovery of funds for the maintenance of the plaintiff due to a significant violation of substantive law, indicating the following.
The court of first instance, satisfying the claims for alimony for the plaintiff's maintenance, came to the conclusion that the plaintiff has the right to demand financial support from the defendant, since she was previously married to him and has two young children together. The plaintiff takes care of the children and actually performs the bulk of parental responsibilities for the upbringing and development of children.
The plaintiff is not married and needs financial assistance. The defendant has the necessary means to pay alimony.
However, this conclusion of the court is based on an incorrect interpretation of the rules of substantive law.
In accordance with Article 90 of the Family Code of the Russian Federation, the ex-wife has the right to demand alimony in court from a former spouse who has the necessary means for this during pregnancy and for three years from the date of birth of a common child.
From the meaning of this legal norm it follows that the ex-wife retains the right to alimony only if the pregnancy occurred before the divorce.
The court of first instance established that on October 28, 2005, the marriage between the parties was dissolved. On July 23, 2007, the plaintiff gave birth to a son, whose father is the defendant.
Thus, the plaintiff’s pregnancy occurred after the divorce. Termination of a de facto marital relationship, no matter how long it may be, does not give a woman the right to demand payment of alimony for her maintenance from her former spouse during pregnancy and for three years from the birth of a common child.
The court of first instance, when considering this case, committed significant violations of the norms of substantive law, which were not eliminated by the cassation instance, and therefore the court decisions adopted in the case in this part were canceled and in the case in this part the Presidium made a new decision to reject the claim (Supervisory practice of the Supreme Court of the Republic of Karelia in civil cases, "Bulletin of the Supreme Court of the Republic of Karelia", 2008, No. 2 (19)).
Article 92. Release of a spouse from the obligation to support another spouse or limitation of this obligation for a period
The court may release the spouse from the obligation to support another disabled spouse in need of assistance or limit this obligation to a certain period both during the marriage and after its dissolution:
in the event that the disability of the spouse in need of help resulted from the abuse of alcoholic beverages, drugs or as a result of his committing an intentional crime;
if the spouses are married for a short period of time;
in case of unworthy behavior in the family of a spouse requiring payment of alimony.
Commentary on Article 92
1. The release of a spouse from the obligation to support another spouse or former spouse is a right and not an obligation of the court. The court, as a rule, resorts to this measure only if the defendant spouse requests it.
2. The occurrence of incapacity as a result of alcohol or drug abuse or as a result of the commission of an intentional crime by one of the spouses may serve as grounds for depriving him of the right to alimony or for limiting this right, because these actions in one case are contrary to moral standards, and in another case - simultaneously the norms of law and morality. The adverse consequences of such actions should be borne only by the spouse who committed them.
3. The short duration of the spouses’ stay in marriage can serve as a basis for both refusal to collect alimony and for collecting alimony for a short period only if the marriage was dissolved by the time alimony was collected. The choice of one solution or another depends on the duration of the marriage.
The concept of short duration of marriage is not defined by law. The decision on whether the marriage was short-lived is made by the court depending on the circumstances of the particular case. Of course, a marriage that lasted less than 1 year can be considered short-lived. In this case, most often there are grounds for refusing to collect alimony. A marriage that lasted from 1 to 5 years can be considered short-lived, taking into account the age of the spouses and the reasons for the termination of the marriage. In this case, the court may impose alimony for a period commensurate with the duration of the marriage.
Termination or limitation of alimony obligations in the event of a short marriage is due to the fact that the basis for alimony obligations of former spouses is the family connection that was created between them during the marriage. In the case of a short marriage, this connection practically did not have time to arise and, therefore, there are no grounds for imposing on one of the spouses the obligation to support the other spouse for an unlimited time.
4. Unworthy behavior of the spouse demanding alimony serves as the basis for refusal to collect alimony, regardless of whether it occurred before the marriage, during the marriage or after its dissolution. However, if the spouse’s misbehavior took place before the marriage and the second spouse knew about it at the time of marriage, he does not have the right to refer to this circumstance when bringing a claim against him for alimony. The law does not define misbehavior of a spouse. The question of whether the spouse’s behavior is unworthy is decided by the court, taking into account the specific circumstances of the case, on the basis of generally recognized moral standards. Of course, it is undignified to commit criminal offenses, and in some cases also serious offenses under other branches of law. Behavior that is not prohibited by law, but contrary to generally accepted moral standards, can also be considered unworthy.
Article 89. Obligations of spouses for mutual maintenance
1. Spouses are obliged to financially support each other.
2. In the event of refusal of such support and the absence of an agreement between the spouses on the payment of alimony, the following have the right to demand the provision of alimony in court from the other spouse who has the necessary means for this:
disabled needy spouse;
wife during pregnancy and for three years from the date of birth of a common child;
a needy spouse caring for a common child who is disabled until the child reaches the age of eighteen or a common child who has been disabled since childhood, group I.
