Method of appointment and arrears of alimony in Ukraine

Does the alimony payer have the right to raise the issue of changing the method of collecting alimony?

The previous edition of the IC did not sufficiently disclose the issue of changing the method of collecting alimony.

So, the norm of Article 192 of the SK provided for the possibility of changing the amount of alimony at the claim of the payer of alimony or the recipient of alimony.

At the same time, the SK did not contain a rule providing for the possibility to change the method of paying alimony.

According to the position of the Armed Forces of Ukraine, expressed in Resolution No. 638/7075/16-c of 03/19/2018 (http://reyestr/court/gov.ua/Review/73054430), a change in the amount of alimony may also provide for a change in the method of their award.

In the same decision, the Armed Forces of Ukraine indicated that the right to file a claim for changing the method of collecting alimony belongs to both the recipient and the payer of the alimony.

In the new edition of the IC, the legislator changed this approach. So, part 3 of Art. 181 CK provides that the choice of the method of collecting alimony is the exclusive prerogative of the recipient of alimony.

Consequently, the right to change the method of collecting alimony belongs to the recipient of the alimony. In turn, the cited legal position of the Ukrainian Armed Forces was based on the previous edition of the IC, and therefore lost its relevance.

What is the indexation of the amount of alimony?

Part 2 of Art. 184 of the SK provides that the amount of alimony, determined by the court or by agreement between the parents in a fixed amount, is subject to indexation annually in accordance with the law, unless the payer and the recipient of the alimony have agreed otherwise.

At the request of the recipient of alimony, indexation can be carried out by the court for a different period.

In accordance with Art. 2, 5, 9 of the Law of Ukraine “On the Indexation of Cash Incomes” the monetary incomes of citizens received by them are subject to indexation in hryvnia on the territory of Ukraine and not of a one-time nature, the amount of alimony determined by the court in a fixed sum of money.

The indexation of the amount of alimony determined by the court in a fixed amount is made at the expense of the alimony payer.

The indexation of the amount of alimony determined by the court in a fixed amount is carried out by enterprises, institutions, organizations, individuals, individual entrepreneurs who make the appropriate deductions of alimony from the income of the alimony payer.

These novelties of the Law of Ukraine “On the Indexation of Cash Incomes” resolved a long conflict in the legislation, according to which there was no mechanism for the indexation of alimony provided for by the IC in the legislation.

What is the difference between the norms of Part 2 of Art. 191 SK and h. 1, 3 of Art. 195 SK when collecting alimony debt?

According to Part 2 of Art. 191 SK alimony for the past time can be awarded if the plaintiff presents to the court evidence that he took measures to obtain alimony from the defendant, but could not receive them due to the latter’s evasion of their payment.

In this case, the court can award alimony for the past time, but not more than ten years.

According to part 1, 3 of Art. 195 SK debt for alimony awarded in a share of earnings (income) is determined based on the actual earnings (income) that the alimony payer received during the time during which they were collected, regardless of whether such earnings (income) were received in Ukraine or abroad.

The amount of the alimony debt is calculated by the state executor, private executor, and in the event of a dispute – by the court.

Thus, the basis for filing a claim under Part 3 of Art. 195 SK is the emergence of debt after the decision to recover alimony in enforcement proceedings.

The essence of the claim is reduced to assessing the actions of the contractor regarding the correctness of the calculation of alimony according to the court decision.

Alimony for the past time is charged in accordance with Part 2 of Art. 191 SK for the period before filing a claim.

In this case, the decision on the recovery of alimony is either absent or covers only the subsequent period.

It should also be noted that if there is a court decision on the recovery of alimony, the amount of the alimony debt is determined by the bailiff at the place of execution of the decision on the basis of the writ of execution and the collection of such debt is carried out within the framework of enforcement proceedings.

There are no grounds for making an additional court decision on the collection of the alimony debt.

What is the formula for calculating a penalty for late payment of alimony?

According to the decree of the OP VS of 25.04.2018 in case No. 572/1762/15-c (http://reyestr.court.gov.ua/Revicw/75296544), the amount of penalties for non-payment or late payment of alimony should be calculated according to the formula:

S = (A1 * 1% * Q1) + (A2 * 1% * Q2) + … + (An * 1% * Qn), where:

  • S – the total amount of penalties for non-payment or late payment of alimony is calculated by the plaintiff at the time the claim is filed;
  • A1 – the accrued amount of alimony for the first month;
  • Q1 – number of days of delay in payment of the alimony amount for the first month;
  • A2 – the amount of the alimony was charged for the second month;
  • Q2 – the number of days of delay in the payment of alimony for the second month;
  • An – the amount of alimony has been charged for the last month before filing a claim;
  • Qn – the number of days of delay in the payment of alimony for the last month.

How should the 100% debt limit be applied when calculating interest?

Taking into account the formula for calculating penalties proposed in the decree of the OP of the Armed Forces of 04/25/2018 in case No. 572/1762/15-ts (http://reyestr/court/gov.ua/Review/752965441), the penalties (100% of the debt) h. 1 tbsp. 196 CK shall be applied to the accrued interest for each month separately.

For example. The person has a debt of alimony for January, February 2018, 1000 UAH for each month. The default interest is conditionally calculated until 01.06.2018.

Penalty formula: S = (A1 * 1% * Q1) + (A2 * 1% * Q2)

  • A1 (debt for January) – 1000 UAH, Q1 – number of days of delay – 120 days (from 01.02.2018 to 01.06.2018). The penalty for the specified month will be 1000 * 1% * 120 = 1200 UAH. Given the provisions of h. 1 cm. 196 SK the amount of the penalty should be limited to 100% of the debt, that is, up to UAH 1000;
  • A2 (debt for February) – 1000 UAH, Q2 – number of days of delay – 89 days (from 01.03.2018 to 01.06.2018). The penalty for the specified month will be 1000 * 1% * 89 = 890 UAH. The amount of the penalty does not exceed 100% of the debt, and therefore is not subject to reduction and will be collected in the amount of 890 UAH.

The total amount of interest for January, February 2018 = UAH 1,890.

Is the period for calculating penalties for late payment of alimony limited?

The position of the OP VS in the decision of 04/25/2018 in case No. 572/1762/15-c (http://reyestr.court.gov.ua/Review/75296544) boils down to the fact that in Art. 196 SK of Ukraine does not establish any restrictions on the period for calculating such a penalty.

How to calculate the penalty in the event of a penalty applied to the debtor under Part 14 of Art. 71 of the Law of Ukraine “On Enforcement Proceedings”?

Let’s consider this issue with an example.

The debtor has arrears in the payment of alimony for 2018 in the amount of UAH 1,000 per month during the year. The total amount of debt is UAH 12,000. 01/05/2019 according to part 14 of Art. 71 of the Law of Ukraine “On Enforcement Proceedings” a fine was applied to him in the amount of 20% of the debt, that is, UAH 2400.

The claimant raises the question of the collection of penalties until 01/10/2019

According to Part 1 of Art. 196 SK in the event of a debt due to the fault of a person obliged to pay alimony by a court decision or by agreement between the parents, the recipient of the alimony has the right to recover a forfeit (penalty) in the amount of one percent of the amount of unpaid alimony for each day of delay from the day the alimony payment was delayed until the day their full repayment or until the day the court makes a decision on the collection of penalties, but not more than 100 percent of the debt.

In the case of applying to a person who is obliged to pay alimony by a court decision, the measures provided for in part fourteen of Article 71 of the Law of Ukraine “On Enforcement Proceedings”, the maximum amount of the penalty should be equal to the difference between the amount of debt and the amount of applied enforcement measures provided for in part fourteen of the Law Of Ukraine “On enforcement proceedings”.

According to Part 14 of Art. 71 of the Law of Ukraine “On Enforcement Proceedings” in the presence of an arrears in the payment of alimony, the aggregate amount of which exceeds the amount of the corresponding payments for one year, the executor shall issue a resolution to impose a fine on the debtor in the amount of 20 percent of the amount of arrears in the payment of alimony.

If there is a debt in the payment of alimony, the aggregate amount of which exceeds the amount of the corresponding payments for two years, the executor shall issue a resolution to impose a fine on the debtor in the amount of 30 percent of the amount of the debt in the payment of alimony.

If there is a debt in the payment of alimony, the aggregate amount of which exceeds the amount of the corresponding payments for three years, the executor shall issue a resolution to impose a fine on the debtor in the amount of 50 percent of the amount of the debt in the payment of alimony.

The amounts of fines provided for in this part are collected from the debtor in the manner prescribed by this Law and transferred to the recoverer.

Useful site materials divorce.com.ua:

  1. Recovery of alimony for an adult in Ukraine
  2. Recovery of alimony for parents and wife in Ukraine
  3. Method of appointment and arrears of alimony in Ukraine
  4. Alimony in firm cash in Ukraine
  5. Procedure for collecting alimony in Ukraine
  6. Application for the recovery of child support in Ukraine
  7. Reducing and increasing the amount of child support in Ukraine
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