Today, there are many questions on the payment of child support, taking into account a number of certain aspects (the property status of the payer of alimony, determining the amount of child support payments, etc.). First, let’s pay attention to the procedural side of this category of civil cases.
It is important to note that according to clause 3 of Part 1 of Article 5 of the Law of Ukraine “On judicial collection” from payment of court fees, all plaintiffs are exempted from court fees in cases of recovery of alimony.
It is also necessary to point out the tricks of using alternative territorial jurisdiction for filing a claim with two demands, namely, the dissolution of marriage and the recovery of alimony. What is meant? If you do not want to sue at the defendant’s location, you can combine in one claim two claims – about the dissolution of marriage and the recovery of alimony. Since when the latter claims, in order to collect alimony, automatically provides the procedural right to choose the court the plaintiff in the following order.
The issue is related to territorial jurisdiction, is regulated by the provisions of the Civil Procedure Code of Ukraine. It is about the provisions of articles 109 and 110. In part 1 of Article 109 of the Civil Procedure Code of Ukraine it is determined that claims to an individual are brought to court on the place of his residence registered in the order established by law or according to the place of his residence registered in the order established by law.
But there is also article 110, which determines the jurisdiction of cases at the choice of the plaintiff, in particular, in part 1 it is indicated that claims for recovery of alimony may be presented also at the registered place of residence or stay of the plaintiff.
Also in Part 2 of the said article it is stipulated that claims for divorce can be made at the registered place of residence or stay of the plaintiff also in case if there are juvenile or underage children in his charge. By agreement of the spouses, the case can be considered at the registered place of residence or stay of any of them.
If the defendant is in temporarily occupied territory, then such difficulties are also resolved by filing an action with several of the above requirements, giving the right to choose the territorial jurisdiction at the choice of the plaintiff.
As to the execution of the decision, on the basis of the writ of execution, then you already as a claimant have the right to file an application with an executive document. It is important that according to Part 2 of Art. 26 of the Law of Ukraine “On Enforcement Proceedings”, the recoverer is exempt from payment of an advance contribution for the opening of the enforcement proceedings.
In the event that the debtor is not on the territory of Ukraine, but in the occupied territories and, for example, already in the framework of open enforcement proceedings, his car can be put on the wanted list on the basis of a decision of the state (private) performer. And if the debtor crosses an administrative or state border, he can be detained, confiscated, as his personal property and sold through auctions.
Also, if the dodger, who is duly notified that he has a corresponding obligation, maliciously shirked from paying it, may bring him to criminal liability. For malicious evasion from payment of maintenance, according to Art. 164 of the Criminal Code of Ukraine provides for punishment in the form of public works for a period of 80 to 120 hours or arrest for up to 3 months, or restriction of freedom for up to 2 years.
In connection with the adoption of new changes in family legislation, there have been fundamental changes concerning all issues of payment of maintenance. Namely, corresponding changes were made in Art. 70, 179, 181, 182, 183, 184, 191, 195, and 196. So, it is necessary to analyze in more detail each innovation in the code.
In part 2 of Article 70 of the Family Code of Ukraine, the aspect is added where the court, in resolving the dispute on the division of property, may depart from the principle of equality of the spouses’ shares in circumstances of significant importance, in particular if one of the spouses shied away from participation in the maintenance of the child (children).
The content of Article 179 has been changed completely, namely, a new subject of ownership of alimony received for the child has been determined. Unlike the previous version of this article, where it was determined that alimony is the property of one of the parents that contains the child, now alimony is the property of the child. In order to avoid misunderstanding, when determining the party that should be the owner (owner) of alimony and the decision of the issue of the appointment of alimony, the legislator introduced these amendments. Namely exclusively in the interests of the child.
However, according to the new version of this article, alimony that will be paid to the name of one of the parents, should be used exclusively for the intended purpose. But, according to part 3 of this article, this does not deprive the minor child of independent receipt of alimony and the disposal of them.
Next, consider the additions to Article 183 of the Family Code of Ukraine: “That of the parents or other legal representatives of the child with whom the child lives, has the right to apply to the court for a court order for recovery of alimony in the amount of one child – one quarter, Two children – one third, three or more children – half the earnings (income) of the payer of alimony, but not more than ten subsistence minimums per child of the corresponding age for each child. “. So, if it is a question of collecting alimony for three or more, then taking into account the income of the payer of alimony, the amount for each child can not exceed for a child under 6 years – 14,260 UAH. And for a child aged 6 to 18 17 770 UAH. (The amounts are taken into account in accordance with Article 7 of the Law of Ukraine “On the State Budget of Ukraine for 2017”, dated May 1, 2017).
Article 195 was changed completely. Henceforth, the determination of the arrears for alimony, awarded in the share of earnings (income) will occur as follows.
The new addition says that the arrears of child support awarded in the share of earnings (income) are determined on the basis of the actual earnings (income) that the payer of alimony received during the time during which they were recovered, irrespective of whether such earnings were received (income ) In Ukraine or abroad.
Now the arrears of alimony payers who did not work at the time of arrears or are an individual entrepreneur and are on a simplified taxation system, or are a citizen of Ukraine who earns income in a state with which Ukraine does not have a legal aid agreement , Is determined not by the earnings (income) that it receives, but based on the average wage of the employee for a given locality.
In the event that the source and amount of income (income) of the payer of alimony received by him abroad is established, upon application of the beneficiary of the alimony the state executor, the private contractor recalculates the debt.
The obligation to calculate the amount of arrears on alimony, still re-imposed on the state executor, private contractor, and in case of dispute – on the court.
And lastly, in Article 196, which deals with determining the liability for late payment of alimony for payment of additional expenses for the child, Part 1 and a new provision in Part 4 were added.
Part 1 states: “In the event of a debt due to the fault of a person who is obliged to pay maintenance under a court decision or by agreement between parents, the alimony recipient has the right to collect penalties (fines) in the amount of one percent of unpaid child support for each day of delay from the day The delay in the payment of alimony until the day of their full repayment or until the day the court decides to recover the fine, but not more than 100 percent of the debt. “. As we see the legislator has established a clear definition of the date of the beginning of the accrual of penalties.
According to the content of the new part 4 of this article – in case of delay in payment of additional expenses for the child due to the fault of the payer, such a payer is obliged, at the request of the recipient of additional expenses, to pay the amount of debt at additional costs, taking into account the established inflation index for the entire time of delay, as well as three percent per annum with the overdue Amount. Here, the legislator essentially duplicated the general provisions of the Civil Code of Ukraine, regarding the accrual of 3% per annum and inflation, namely Art. 625.
Separately on the options for additional expenses for the maintenance of the child. In addition, the court can take into account the special needs of the child for severe chronic diseases, injuries and disabilities. That is, the party of the plaintiff can prove the above facts with evidence, in addition to the daily expenses for the maintenance and upbringing of the child, there may be a need for additional costs. This can be confirmed by appropriate references from medical institutions, social services. And if the child has a certain sporting potential (constant active participation and victories in sports championships, etc.), the court can also take into account the availability of awards for high sports achievements.
It also contains the second paragraph – “The payer of additional expenses is deemed to have overdue payment if he has not fulfilled his duty to pay additional expenses within the time limit established by the court decision or by agreement between the parents, and in case of their absence or in the case of establishing such a term – after the expiry of seven Days after the presentation of the relevant demand by the recipient of additional expenses, they actually paid for them “.
In this case, the legislator, duplicated the provisions of Art. 530 of the Civil Code of Ukraine, which in practice and so, as the norm of direct action is applied. Therefore, from our point of view, this formulation is just a refinement, and no more.
So, we have considered the content of innovations in the provisions of the Family Code of Ukraine of May 17, 2017.
As of the moment of this publication, it is obvious that there is no judicial practice in determining the amount of alimony based on the index of the payer’s property status, and not on the size of the official salary. The current practice should be briefly reviewed, taking into account previous provisions.
After analyzing the judicial practice for June 2017, local courts of general jurisdiction apply for payment of alimony in a fixed amount of money.
For example, by a decision of 19.06.2017 of the Dneprovsky District Court of the city of Kiev in civil case No. 755 / 5632/17 the court satisfied the lawsuit and it is customary to charge 1000 UAH. On the child that month before adulthood, starting from April 13, 2017 http://www.reyestr.court.gov.ua/Review/67270932.
Also there is a similar decision regarding the establishment of a fixed amount of money for the payment of maintenance, according to the decision of the Svyatoshynskyi district court of the city of Kiev in case 759/1280/17, it is customary to recover from the defendant (husband) an amount of 3000 UAH. Monthly for the maintenance of the son until the child reaches the age of majority.
The text of the solution can be found at the following link. Http://www.reyestr.court.gov.ua/Review/67224262.
It should be separately taken into account and practice with the establishment of the amount of alimony in the proportion of the earnings of the payer of alimony.
According to the decision of June 20, 2017, the Goloseevskiy District Court of Kyiv in case 752/8775/17, it is customary to collect alimony for the maintenance of a minor son in the amount of ¼ of the total income, but not less than 30% of the established subsistence level for the child.
Reference to the court’s decision http://www.reyestr.court.gov.ua/Review/67317272
Similar decisions of 19 June 2017 were made by the Desniansky District Court of the city of Kiev and the Svyatoshinsky District Court of Kyiv.
Relevant links to the solutions are http://www.reyestr.court.gov.ua/Review/67243443 and http://www.reyestr.court.gov.ua/Review/67246001.
It is worthwhile to give examples of average salaries in the following regions (as of April 2017, according to the State Statistics Committee of Ukraine), some of which will now be paid in disputes over the payment of alimony:
– Kiev – 10788 UAH;
– the Kiev area – 6578 grn.;
– Mykolayiv region – 6183 UAH;
– Odessa region – 6062 UAH;
Consequently, it is possible to collect alimony, as in a hard cash amount, and based on the established share of the income of the payer of alimony, but no less than the fixed amount of the subsistence minimum for the child.
Considering that the practice of collecting child support is a constant, common thing for our lawyers. It will not be difficult for us to provide you with a professional legal service in preparing a suit to the court in order to collect an objectively justified amount of alimony for the child’s maintenance or to review the previously established alimony.