Child support and collection in 2021

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Content:

1. Amount of alimony in 2021

1.1. The cost of living for a child and how its change affects the already prescribed alimony

1.2. Determination of the amount of alimony that the unemployed must pay

1.3. When it is possible to raise a question regarding the maintenance of the child by the parents

2. Where and how to file for alimony in case of refusal of one of the parents to pay alimony and from what time the alimony is calculated

2.1. Court order on the recovery of alimony: the procedure for receiving; grounds for refusal to receive; order of execution

2.2. Statement of claim for the recovery of alimony: requirements for the statement; grounds for refusing to satisfy the claim; order of execution

2.2.1. Circumstances that are taken into account when considering a litigation on the recovery of alimony

2.2.2. Income that is taken into account by the court when determining the amount of funds for the maintenance of the child and which is ignored.

3. Increase and decrease in the amount of alimony after the entry into force of the court decision

4. Alimony lawyer

1. Amount of alimony in 2021

January 2021 did not bring any changes in terms of the amount of alimony. So the amount of alimony will continue to depend on the order in which they are paid: 1) voluntary; 2) contractual; 3) judicial.

Voluntary: the amount of alimony for 1 child is determined jointly by the child's parents. However, it should not be less than that provided by law.

As of 2021, the minimum guaranteed amount of alimony per child is 50% of the subsistence level for a child of the corresponding age.

Negotiated: parents conclude an agreement on the procedure for maintaining a child. This agreement determines the amount of alimony, the term for their payment, the conditions for revising the issue of the amount and terms. In addition, an agreement between parents on the payment of alimony for a child may have elements of another agreement (an agreement on the procedure for the participation of parents in raising a child). This agreement between the parents is certified by a notary.

Usually, the amount of funds for the maintenance of a child in such contracts is more than UAH 10,000 per child. It also deserves attention that the amount of funds should be at least as guaranteed by law. Otherwise, such a contract will be worthless.

Judicial: the parents did not come to an agreement on the amount of alimony for the child and their dispute is resolved in court in a separate or in a claim proceeding.

Upon completion of the consideration of the application, the court decides to collect funds for the maintenance of the child in part from the payer's income or in a fixed amount, but not less than 50% of the subsistence minimum for a child of the corresponding age.

1.1. The cost of living for a child and how its change affects the already prescribed alimony

The only law that determines the size of the subsistence minimum for a child this year is the Law of Ukraine "On the State Budget 2021". Every year it changes in terms of the amount of alimony per child.

According to Article 7 of the Law of Ukraine "On State Budget 2021", the subsistence minimum for a child is determined in the following sizes:

• for a child under the age of six: from January 1 - 1921 hryvnia, from July 1 - 2013 hryvnia, from December 1 - 2100 hryvnia;
• for a child aged six to eighteen: from January 1, 2395 hryvnia, from July 1 - 2510 hryvnia, from December 1.

The previously assigned alimony is automatically increased in terms of the subsistence level. For example, if, by a court decision in 2018, the recovery of alimony in the amount of 800 hryvnia, but not less than 50% of the subsistence minimum, was imposed, then the contractor must collect ½ part of the subsistence minimum, which is provided for in 2021.

1.2. Determining the amount that the unemployed must pay

According to the current legislation, alimony from an unemployed person will be calculated from the average wage of an employee for a given locality.

This procedure is provided exclusively within the framework of enforcement proceedings and applies to persons who did not work at the time of the debt, as well as to natural persons entrepreneurs. This procedure is determined by Article 195 of the SK of Ukraine.

If the alimony payer has found a job, then in this case he must inform the executive service indicating the place of work so that the performer can properly perform his work. If the payer evades providing this information, the executor can re-submit a request to the competent authorities in order to find out about the place of work of the debtor.

1.3. When it is possible to raise a question regarding the maintenance of the child by the parents

The legislation determines that alimony is the responsibility of the parents and it arises from the moment the child is born. Therefore, if you are thinking how to file for alimony without divorce, or you need to be married in order to have the right to alimony, just take it and serve it.

2. Where and how to file for alimony in case of refusal of one of the parents to pay alimony and from what time the alimony is calculated

If one of the parents evades paying alimony for the child, the other can apply to the court to recover the funds belonging to the child (alimony) for her maintenance.

The current legislation provides for two types of proceedings in relation to alimony: 1) clerical proceedings - obtaining a court order; 2) action proceedings - obtaining a court decision and a writ of execution.

When filing any application to the court aimed at collecting funds for the maintenance of a child - alimony will be charged from the moment the application is submitted.

2.1. Court order for the recovery of alimony

A court order is an executive document that helps to contact the executive service for the enforced recovery of alimony, which will actually be directed to the maintenance of the child. This document is issued by the court.

The procedure for obtaining: before going to court, the applicant must decide on the amount that he will ask to be charged from the alimony payer. The current legislation establishes the possibility to ask in part of the income of the payer of alimony. Alimony for two children in a court order can be determined in the amount of 1/3 of the payer's income; for three children and more ½ of the payer's income. If the application for the issuance of a court order states a requirement for the payment of alimony in a fixed amount, then it must be 50% of the subsistence level.

An application for the issuance of a court order for the recovery of alimony is filed at the place of residence of the applicant or the payer of the alimony. The legislator in this part allowed an alternative choice to be made.

There is no need to pay court fees in this category of cases.

Order production, in contrast to action production, saves time at times. The terms for consideration of an application for the issuance of a court order for the recovery of alimony are from 1 to 2 months. Usually, the main obstacle in the processing time is the verification of the registered place of residence in respect of which the court order is issued.

In the application for the issuance of a court order, it is necessary to indicate:

• the court to which the application is submitted;
• the most complete and known data of the applicant and the debtor (alimony payer) data on the representative and confirmation of his authority (if the application is submitted personally);
• claims and grounds for such claims;
• list of evidence on the basis of which the claims are based.
• If the application is submitted in electronic form, then all subsequent documents also on this application must be submitted in electronic form.

The petitional part of this application should look as follows: I ask to collect from PERSON_1 in favor of PERSON_2 alimony for the maintenance of PERSON_3 in the amount of ____________ until PERSON_3 reaches the age of majority.

Grounds for refusal: the current legislation provides for an exclusive list of grounds on which the issuance of this document will be refused, so you should know them: 1) the application does not meet the requirements of Article 163 of the Civil Procedure Code of Ukraine; 2) the application was not signed or the representative did not confirm his authority on the basis of the issuance of this document (a power of attorney or order was presented) 3) there is one of the reasons listed in part one of Article 186 of the Code of Civil Procedure of Ukraine (the case is not subject to consideration in this legal proceeding, in the proceedings of this court there is a dispute between the same parties on the same subject, the death of the alimony payer has occurred, etc.); 4) an identical court order has already been submitted earlier; 5) the application was submitted in violation of the rules of jurisdiction; 6) the application does not see the emergence of the right to claim.

The implementation of this executive document is carried out by private executors and bodies of the state executive service of the country. As practice shows, private enforcement officers carry out compulsory collection many times more efficiently. The choice between a private and public contractor lies solely with the claimant.

The procedure for the execution of a court order on the recovery of alimony is determined by the Law of Ukraine "On Enforcement Proceedings" and instructions that are used by public and private executors in the execution of enforcement documents. In practice, in most cases, it is enough just to contact the executor with a statement of enforcement and indicate in it your details for transferring funds, and then the executor will deal with this enforcement.

2.2. Statement of claim for the recovery of alimony: requirements for the statement; grounds for refusing to satisfy the claim; order of execution

A statement of claim is a type of legal procedural document, the filing of which leads to the opening of a claim proceeding in a court case. In most cases, it is filed for dispute resolution.

The statement of claim for the recovery of funds for the maintenance of the child must indicate:

1) the court to which the application is submitted;

2) the most complete data of each participant in the proceedings (full name; RNOKPP, registration address and if it is different, you must indicate the address of actual residence; e-mail address of the parties, contact phone number). The absence of any data will not be a material violation, but this must be indicated in the claim;

3) the price of the claim. If the alimony is in solid cash, then the totality of payments, but not more than six months

4) the requesting part, which will indicate from whom the alimony will be collected and for the benefit of whom, and for what, and for how long;

5) the circumstances (grounds) of the claim by which the recipient of the alimony substantiates the claim;

6) information about the pre-trial settlement of the dispute;

7) information on securing evidence or a claim before filing a claim;

8) a list of documents and other evidence attached to the application; indication of evidence that cannot be presented together with the statement of claim (if any); indications of the availability of the plaintiff or another person of the original written or electronic evidence, copies of which are added to the application;

9) preliminary calculation of court costs, which the plaintiff incurred and may incur in connection with the consideration of the case;

10) confirmation from the plaintiff or his representative that such a claim is being filed for the first time;

11) an indication on what grounds the plaintiff is exempted from paying the court fee;

12) the indication of other information, in the opinion of the recipient of the alimony, is important for the consideration of the statement of claim for the recovery of alimony.

The term for consideration of a claim in court in accordance with the law is up to 3 months, but in fact, such a consideration of a case lasts about 5-6 months.

Grounds for refusal to satisfy the claim: it is difficult to call the list of grounds exhaustive, but the most popular grounds for refusal are: 1) the child does not live with the recipient of alimony; 2) the payer of the alimony is not the father of the child; 3) the alimony payer fulfills his obligations to pay alimony; 4) the right to maintain the child was protected in a separate proceeding (court order on the recovery of child support).

The order of execution of the court decision: in the absence of the circumstances indicated above, after the completion of the consideration of the case, the judge makes a decision on the merits of the dispute on the recovery of alimony from the payer. After that, time must pass to appeal the court decision, and in the absence of an appeal from one of the parties, the decision on the merits of the dispute comes into legal force from the moment of its adoption or thirty days after its receipt by the parties.

After the decision enters into legal force, the court issues an executive letter, which is an executive document, and with this document the claimant must contact a private or state executor for enforced recovery of alimony.

2.2.1. Circumstances that are taken into account when considering a litigation on the recovery of alimony

The current legislation provides for a list of circumstances (grounds) taken into account when determining the amount of alimony. These circumstances are essential when considering an alimony dispute:

• the state of health and financial situation of the child and the payer;
• the payer has other children, disabled parents, wife or husband;
• whether the payer has property rights or other rights that give income;
• other circumstances of significant importance.
• The court, when considering the case, may ignore the amount of the official salary if it is established that the costs of the payer are more than his salary.

According to part 2 of Article 182 of the IC of Ukraine, the minimum recommended amount of alimony should be the minimum subsistence level for a child and can be sentenced if the payer's earnings are sufficient.

2.2.2. Income that is taken into account by the court when determining the amount of funds for the maintenance of a child

This list of income is provided for by the Resolution of the Cabinet of Ministers of Ukraine dated 02.26.1996 No. 146 "On the list of types of income taken into account when determining the amount of alimony for one of the spouses, children, parents, other persons" - determines the incomes taken into account and not taken into account in alimony cases. Including this decree lists the periods when the alimony is collected.

Taken into account:

1) basic wages according to the official salary, tariff rate, piece rates, and the like;

2) all types of additional payments and allowances to wages;

3) cash and in-kind bonuses;

4) payment for overtime work, for work on holidays, non-working days and weekends;

5) salary, which is retained during the vacation, as well as from the compensation received upon dismissal for unused vacation for several years;

6) the salary, which is retained during the performance of state and public duties, and in other cases, the preservation of the average salary;

7) remuneration for the general annual results of the work of enterprises and organizations;

8) remuneration paid to full-time literary workers of newspapers, magazines, press agencies, radio, television from the fund of literary fees, as well as non-staff literary workers who are subject to state social insurance;

9) one-time remuneration (percentage allowances) for length of service
10) benefits for state social insurance, as well as benefits for temporary disability established in collective agricultural enterprises;

11) additional payments to benefits for state social insurance, paid at the expense of enterprises, institutions, organizations;

12) amounts paid to compensate for losses in connection with disability due to injury or other damage to health, with the exception of amounts to reimburse the costs of caring for them, additional food, sanatorium treatment (including travel costs) and prosthetics of victims;

13) unemployment benefits;

14) received pension, with the exception of pension supplements, paid to persons with disabilities of the first group for caring for them;

14-1) state social assistance to persons with disabilities from childhood, assigned in accordance with the Law of Ukraine "On state social assistance to persons with disabilities from childhood and children with disabilities";

15) scholarships paid to students during the period of study at higher educational institutions, students of professional educational institutions and students of educational institutions for advanced training and retraining of personnel;

16) income from entrepreneurial activity, peasant (farmer) households, cooperatives, associations of citizens, as well as income attributable to the share of the payer of alimony from a garden plot or subsidiary farm;

17) all types of earnings received by lawyers for work in legal consultations;

18) payment received for the lease of a land plot or land share (share);

19) other types of earnings.

The collection of alimony is not made from:

1) severance pay upon dismissal and amounts of non-taxable amount of material assistance;

2) compensation to the employee for unused vacation, except for cases when the person, upon dismissal, receives compensation for the vacation that has not been used for several years

3) assistance for treatment;

4) assistance in connection with pregnancy and childbirth;

5) compensation payments for business trips and transfer to work in another locality;

6) field support, wage supplements and other amounts that are paid instead of daily subsistence and apartment allowances;

7) compensation amounts paid for the depreciation of tools and wear and tear of clothing

8) material assistance to persons who have lost the right to unemployment benefits;

9) the cost of free provision of apartments and utilities;

10) a lump sum for the birth of a child;

11) state aid for burial;

12) benefits for caring for a child until the child reaches the age of three;

13) benefits for children under guardianship or guardianship;

14) assistance to low-income families with children;

15) social assistance to low-income families;

16) state social assistance for children with disabilities, as well as allowances for caring for a person with a disability from childhood and a child with a disability, provided for by the Law of Ukraine "On state social assistance to persons with disabilities from childhood and children with disabilities";

17) benefits for temporary disability for caring for a sick child under the age of 14;

18) temporary state assistance, if the place of residence of the parents is unknown, or they evade paying alimony, or are unable to support the child;

19) subsidies in cash to reimburse the costs of purchasing liquefied gas, solid and liquid heating fuel;

20) monthly financial assistance in connection with the restriction of consumption of locally produced food and personal subsidiary plots of citizens living in the territories of radioactive contamination;

21) the cost of clothing, food supplies or monetary compensation;

22) subsidies for meals, the cost of vouchers to sanatoriums and rest homes, provided at the expense of enterprises and organizations.

3. Increase and decrease in the amount of alimony after the entry into force of the court decision

The amount of alimony after the entry into force of a court decision on their recovery may be changed at the suit of an interested person. Such an interested person can be the payer or the recipient of the alimony. The change in the amount of alimony occurs in court by filing a statement of claim. This rule applies regardless of the basis and in what order the court decision to recover the alimony was made.

In the case of the payer of alimony, the payer needs to prove the circumstances of the deterioration of the financial situation and it must take place after the decision of the court. For example, by a court decision, the court decided to collect UAH 5,000 from the alimony payer, but after a while the payer lost his permanent income, which was UAH 15,000 - 20,000, and his total income now constantly amounts to only UAH 7,000. The payer has no other income, and therefore the payment of alimony in the amount of 5000 hryvnia with an income of 7000 hryvnia is excessive.

As the court practice shows, the majority of alimony payers believe that the presence of another child is an independent basis for reducing the amount of alimony, but in fact it is a wrong decision to think so. When considering a dispute on the following grounds, the court will take into account the financial situation of the plaintiff (alimony payer). For example, if by a court decision alimony in the amount of UAH 5,000 was awarded, but the payer receives UAH 40,000, then having a second child from another woman will not lead to a decrease in the amount of alimony. Of course, judicial practice has exceptions from similar circumstances, but this exception is about 5%, in contrast to which 95%.

So, if there are legal grounds for reducing the amount of alimony, then do not think about how to reduce the amount of alimony, but file a lawsuit.

A statement of claim for a reduction in the amount of alimony: 1) is filed at the place of residence of the defendant; 2) has a requirement to pay the court fee; must comply with the requirements established by Articles 175-177 of the Code of Civil Procedure of Ukraine.

After the commencement of proceedings on this case, the court sends the relevant ruling and copies of the documents submitted by the plaintiff. In its ruling, the court indicates at what time it is possible for the defendant to submit a response to the statement of claim for a reduction in the amount of alimony.

The response must comply with the requirements of Article 178 of the Code of Civil Procedure of Ukraine and before filing the response to the court, it must be sent to the plaintiff. Such an action was made in order to speed up the procedural terms of the consideration of the case and the principle of adversariality of the parties was observed.

Usually, the defendant's objections to the statement of claim for a reduction in the amount of alimony must have clear arguments that there is no reason to reduce the amount of alimony. In practice, the need for a revocation is as important as a claim.

In modern realities, the consideration of the case continues in the court of first instance from six to 18 months.

The changed amount of alimony will take effect from the moment the court decision enters into legal force. If a party does not agree with the court decision, it has the right to file an appeal.

Alimony lawyer

You need legal assistance from a lawyer who understands legal issues - we will help you. Lawyers of JSC Novakovskaya & Partners are specialists in family relations, including alimony disputes.

By contacting us, we, as alimony lawyers, will be able to:

• prepare and submit the necessary documents for collecting alimony or for reducing the amount of alimony or appealing it;
• represent your interests in the courts of Ukraine.

This material was prepared by a practicing lawyer, partner of JSC Novakovskaya & Partners, A.A. Yanchuk.

You can make an appointment for a consultation by calling 050 052 44 04 or by writing to advokat@novakovska.com.