Recovery of alimony
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According to the Family Code, parents are obliged to support their children until they reach the age of majority.
After reaching the age of majority, the period of material support may be extended to 23 years if the child continues his or her studies and parents have the opportunity to provide him or her with financial assistance. At the same time, in case of termination of the process of education on its own initiative or in case of expulsion, the right to maintenance of the child is terminated.
In accordance with the legislation of Ukraine, the issue of payment of alimony is decided in two ways
– voluntary or coercive.
The voluntary payment of alimony is carried out by:
• By agreement of parents,
• On the personal initiative of the alimony payer by submitting an application at his place of work,
• By alienating in favour of the real estate child.
Payment of alimony by agreement of parents
The current legislation provides for the possibility of parents to independently agree on the payment of alimony, determining their amount, which should not be less than provided for in the Family Code of Ukraine. In this case, the contract must be notarized, and the amount and procedure of payment of alimony will be recorded in it.
Application at the place of work
The alimony payer has the right to submit at his place of work an application to withhold from his official income the amount for payment of alimony. The application must specify the period for which alimony will be transferred. In this option, it is possible to recover alimony in the amount of more than half of the salary. But, the above statement at any time he can pick up.
Disposal of personal property in favour of the child
The alimony payer may conclude a contract, which must be notarized in a mandatory manner, by means of which his child receives ownership of real estate, instead of paying alimony. Such a contract can be concluded only with the consent of the guardianship and guardianship authority.
When transferring real estate to a child, it should be understood that the conclusion of the contract frees the payer of alimony from fulfilling maintenance obligations, but does not constitute a basis for the termination of the obligation to bear additional expenses for its maintenance.
If the parents fail to reach an agreement for a peaceful solution to the conflict, the recovery of alimony is carried out in court.
In cases where none of the options of voluntary resolution of the issue of payment of alimony is suitable for parents, or they cannot reach mutual agreement, then the enforcement of funds from the payer of alimony is carried out in court.
The judicial procedure for resolving such disputes provides for the filing of a complaint by those of the parents with whom the child is left to live. At the same time, the submission of the application is possible both to the court at the place of residence of the defendant, and to the court at the place of registration or stay of the plaintiff.
Amount of alimony
According to the current legislation, the amount of alimony is determined by the court taking into account the main salary of the defendant, all additional payments and allowances to the main salary, bonuses, awards, pensions, unemployment benefits, scholarships, dividends and other possible income.
What the court takes into account when determining the amount of alimony:
- The state of health and material situation of the child;
- State of health and material position of the alimony payer;
- Maintenance of other children, disabled husband, wife, parents, daughter, son;
- Ownership, possession and/or use by the maintenance payer of property and property rights, including movable and immovable property, money, exclusive rights to the results of intellectual activity, corporate rights;
- Significant expenses incurred by the respondent, such as the acquisition of real estate and/or other property for more than ten times the subsistence level;
- Any other circumstances relevant to a fair judgement in the alimony case.
The change in the amount of alimony will not be affected by the transfer to another country or by the new marriage. On the contrary, if a child was born in the new marriage of the alimony payer, then accordingly, the obligation to support another child arose, the amount of alimony can be reduced.
The court assigns payments for the maintenance of the child both in the proportion of the defendant’s income and in a firm (fixed) monetary amount.
Minimum amount of alimony
The minimum amount of alimony per child may not be less than 50 percent of the subsistence minimum for a child of the appropriate age.
Living wage in 2019:
For children under 6 years of age: from January 1, 2019 – UAH 1626, from July 1 – UAH 1699, from December 1 – UAH 1779;
For children from 6 to 18 years: from January 1, 2019 – 2027 UAH, from July 1 – 2118 UAH, from December 1 – 2218 UAH.
Alimony from the unemployed
Alimony is collected by the court in the amount of not less than the minimum, even if the defendant is unemployed, informally employed, has other children in support, etc. For this purpose, the person who applies for alimony must properly formulate claims and ask the court to establish alimony not lower than the minimum amount.
Maximum amount of alimony that may be recovered by the court
The maximum amount of alimony is not established by law. But it should be noted that the recovery of alimony on the basis of a court order provides for the possibility to recover alimony in the amount of not more than ten subsistence minimums per child of the appropriate age. In case there are several children, the maximum amount is calculated by the age of each child separately.
If the legal limit does not meet the needs of the child, then the court should apply. Since in this case there will be no established maximum amount, it is possible to claim such amount of alimony, the need for which can be justified.
In order for the court to award alimony, including more than ten subsistence minimums, it is necessary to provide confirmation of the need for such an amount. In analysing the jurisprudence, it is worth noting that a large amount without appropriate justification for the real needs of the child will not be awarded by the court, even if the court sees the possibility of another parent paying millions.
Simplified procedure for recovery through court of alimony
At the moment, the Family Code of Ukraine provides for a simplified procedure for the recovery of alimony in court. For this purpose, it is necessary to apply to the court for a court order for the recovery of alimony.
One of the parents with whom the child lives has the legal right to apply to the court for a court order for the recovery of alimony in the following amount:
1/4 per child;
For two children – 1/3;
For three or more children – 1/2 of the earnings (income) of the alimony payer.
Increase and decrease the amount of alimony
The family legislation of Ukraine provides for the possibility of changing the amount of alimony established by the court or by agreement between parents. This process can be initiated by both the recipient and the alimony payer. The amount of payments is increased or decreased, depending on changes in the material or family situation, deterioration or improvement of the health of one of the parents, and in other cases provided for in the Family Code.
Liability for non-payment of alimony
In case of debt due to the fault of a person obliged to pay alimony by court decision or by agreement between parents, the recipient of alimony has the right to recover the penalty (Penalty) in the amount of one per cent of the amount of unpaid alimony for each day of delay from the day of delay in payment of alimony to the day of their full repayment or to the day of the court’s decision to recover the penalty, but not more than 100 per cent of the arrears.
Also, if there is a debt to pay alimony for more than 6 months, the parent with whom the child lives independently decides on the temporary departure of the child from Ukraine for treatment, training or rest of the child.
In addition, in case of this delay, the alimony payer may have other difficulties.
Criminal liability for non-payment of alimony
Article 164 of the Criminal Code of Ukraine provides for criminal liability for malicious evasion of the payment of alimony.
Malicious evasion of child support should be understood to mean any actions of the debtor aimed at non-compliance with the court decision, which resulted in the formation of arrears in the payment of such funds in the amount that together make up the amount of payments for three months of the corresponding payments.
Malicious non-payers of alimony should pay attention to the word AGGREGATE. It means that small periodic payments made for the purpose of creating the appearance of payment of alimony will not be important if the arrears in payment of alimony for the child together exceed the amount of payments for three months and it will be established that such arrears were caused by wilful non-compliance with the court decision on recovery of alimony.
Thus, criminal liability under this article of the Criminal Code of Ukraine occurs only in the event of a deliberate, malicious failure to comply with a court decision to recover alimony for a child, as well as a malicious (intentional) evasion by a parent of the maintenance of his or her minor child who is dependent on him or her.
In fact, criminal liability for non-payment of alimony is extremely rare, as the payer of alimony can always motivate his behavior by having material difficulties, poor state of his own health or justified impossibility to allocate funds for payment of alimony, etc. In other words, find a way and assure that if he had the funds, he would pay. Accordingly, it is difficult to prove conscious evasion of the payment of alimony.
Recovery of alimony abroad
According to the Convention on the Recovery of Alimony Abroad, funds awarded by the Courts of Ukraine can be obtained from an alimony payer living in the territory of 61 countries of the world.
Also with the help of this Convention it is possible to submit documents through the territorial department of the Ministry of Justice for filing a claim with a foreign court.
The ideal way to recover alimony in this case is to file a claim directly with the country in which the alimony payer is registered. Due to the fact that in foreign courts it is more profitable and faster to solve this issue.