The rubric is conducted by Zinaida Alexandrovna Batrakova*
On this page, dedicated to legal problems, we will try to discuss the questions which arouse interest of a wide range of readers. Considering a concrete legal matter, we will try to touch the history of the question itself, explain the current regulations and give practical advice. We propose you to take part in the discussion yourself, asking questions and making proposals. We will start our rubric with the thing which, somehow or other, disturbs every man - with family legal relationships.
Unfortunately, during my work I, as a lawyer, have to face the problems which arouse through people's ignorance of law. A person doesn't know his rights and opportunities, methods of their realization, thus causing troubles both to himself and to his relatives, sometimes suffering material losses. All this could be avoided if in due time he would display interest in what is said in the law on this matter.
The Family Code currently in force in the Russian Federation was accepted on December 8, 1995; in comparison with the Family code of RSFSR (Russian Soviet Federative Socialist Republic) of 1969 it contains a lot of new aspects. Let us dwell on the questions often asked during my consultations, - on the questions connected with alimony (allowance due to children from father on divorce).
According to my experience, many people hardly conceive what are the alimony duties of the family members. We have got used that the alimony is paid by parents in order to support under age children, and that we should go to the law to achieve it. In the Family Code currently in force in the Russian Federation there is a number of new regulations about alimony. For example, along with appeals to the court a lawmaker permits a notarially completed agreement between a person who should pay alimony and its recipient. A notarially certified agreement of paying alimony is valid an act of execution. And the size of alimony paid according to this agreement, is determined by the sides, but cannot be lower than the alimony which under age children could get in case of penalty in legal form.
In my legal practice there were cases when parents divorced and on account of the future alimony wanted to leave a flat, a dacha or some other property. According to the old Code about marriage and family of RSFSR it was impossible. But in the Family Code of the RF currently in force item 2 of the article 104 points to the methods and procedure of paying alimony under an agreement according to this article. Alimony, may be paid as a certain portion of the wage and (or) some other income of the person who is obliged to pay alimony; as a fixed amount of money, paid periodically; as a fixed amount of money, paid in lump; in the form of property assignment and also in any other agreed upon and approved ways.
It is necessary to point out that an alimony agreement may stipulate indexation of the alimony.
In case there is no alimony agreement, article 81 of the Family Code stipulates that the alimony for under age children is collected by court from their parents every month at the rate of: one quarter of the wage and (or) other parents' income per one child, one third of the same per two children, one half of the same per three children. Amount of these portions can be decreased or increased by the court with due regard of the financial or family position of the sides and other circumstances which are worth attention.
If a parent, obliged to pay alimony, has irregular, variable income, or if this parent gets wages and (or) other income in full or partly in foreign currency or in kind, or if he does not get any wages and (or) other income, and also in other cases, if an alimony collecting as a portion of the wage or other income is impossible, difficult or severely violate the interests of one of the sides, the court has a right to determine monthly alimony in a fixed amount of money or both in a portion of and in a fixed amount of money.
I remember a case when an old man, father of five children, sued his children to pay alimony. Really, adult children, capable of working, are obliged to support and take care of their disabled parents who need help. But children may be exempted from the duty of supporting their disabled parents who need help, if parents are found to have evaded from their parental duty. The court, taking into account that the father didn't take part in bringing up children and drank heavily, rejected the suit.
A law stipulates alimony obligations for married couples and former married couples. Married couples and former married couples have the right to demand alimony from a present or a former husband (wife) through the court, if he (or she) has necessary funds, and if a present or former husband (or wife) is:
- Disabled or indigent;
- A wife during the period of pregnancy or during 3 years after their mutual child's birth;
- A present or former indigent husband (or wife), taking care of a mutual invalid-child till the age of 18 or a mutual child, invalid of the 1st group from childhood. Enforcing alimony from a present or former husband (wife), the court, without any doubts, proceeds from the financial or family position of a present or former husband (wife) and from significant of other sides, and sets the monthly alimony to be paid in fixed amounts.
May be not all people know that there is a responsibility of brothers and sisters to support their under age and disabled adult brothers and sisters, as well as of grandfathers and grandmothers to take care of their grandchildren and vice versa, responsibility of grandchildren to support their grandfathers and grandmothers (item 1, Article 96).
Disabled and requiring help step-father and step-mother, who brought up and supported their stepsons or stepdaughters, have the right to demand through the court allowance from their adult able-bodied stepsons or stepdaughters, possessing necessary funds, if they cannot get it from their adult able-bodied children or present or former husband (wife).
The court has the right to exempt stepsons or stepdaughters from the duty to support step-father and step-mother if the latter brought up and supported them for less than 5 years, and also if they didn't carry out their duties of up-bringing and supporting stepsons or stepdaughters in a proper way.
Alimony are adjudged from the date of the presenting of the suit. Past time alimony may be enforced within the three-years term from the suit, if the court finds out that before the suit some measures, aimed at getting funds for support, were taken but the alimony wasn't collected because of evasion of the person who should should have paid it.
The administration of the organization, where the person, obliged to pay alimony, works, in conformity with notarially certified alimony agreement or in conformity with the act of execution, should deduct the alimony from the wage and (or) other income of the person, obliged to pay alimony, and to pay or send it at the expense of the person obliged to pay alimony, to the alimony recipient within three days after the salary and (or) other income has been paid to the person, obliged to pay alimony.
According to the Article 115 of the Family Code of the Russian Federation in case of accumulating indebtedness through fancy of the person, obliged to pay alimony under the court decision, the guilty person should pay the recipient of the alimony a penalty amounting to one tenth per cent of the sum of the unpaid alimony for each day of delay.
The alimony recipient has the right to claim the recovery of all the losses inflicted by the delay in alimony payments and not covered by the penalty from the person, paying alimony and responsible for untimely alimony payment.
Alimony duties, under alimony agreement, discontinue in case of death of one of the sides, expiration of the period of validity of this agreement or due to other reasons, stipulated by this agreement.
* Zinaida Alexandrovna Batrakova - deputy chief lawyer of the consultation bureau "Centralnaya" of the Bar "Moscow legal center", supervisor of studies of the student consultation bureau under the Russian academy of legal profession