Reduction (increase) of the amount of alimony collected, suspension of alimony collection

The disputed relations are regulated by the provision of clause 1 of Article 175 of the KBS, according to which, if, in the absence of an agreement on the payment of alimony, the financial or marital status of one of the parties has changed after the court has established the amount of alimony, the court has the right, at the request of either party, to change the established amount of alimony or to release the person obligated to pay alimony from their payment.. When changing the amount of alimony or exempting it from payment, the court has the right to take into account other noteworthy interests of the parties. (paragraph 2).

An analysis of the above norm allows us to conclude that a change in the financial situation of the parties is understood as both an improvement and a deterioration in the financial situation of the recipient or payer of alimony.

By the decision of the Abai District Court of Shymkent dated May 12, 2015, K.'s claim to E. and Zh. for a reduction in the amount of alimony for the maintenance of minor children was partially satisfied. The alimony levied for the maintenance of children from K. has been reduced: in favor of E. from 25% to 17%, in favor of J. from 50% to 33% from all types of earnings.

It is established that with K. alimony payments were collected monthly from all types of income in favor of E. for the maintenance of a minor child of Zhantore in the amount of 1/4 part (25%), also, by a court order of the Abaysky District Court dated January 15, 2015 in favor of J. for the maintenance of minor children B., A., E. alimony in the amount of 1/2 part (50%).

Thus, alimony payments were collected from the plaintiff under two judicial acts in favor of E.- 25%, J. - 50%, a total of 5 in the amount of 75% of wages and other income, that is, 25% more than stipulated by law.

It follows from the content of the decision that defendant Zh. needs the financial support of three minor children, and defendant E. has one child of 11 years of age, while she has not provided the court with evidence of her financial dependence on the plaintiff., more than Defendant Zh.

In such circumstances, the conclusions of the court of first instance that since the defendant Zh. She lives with the plaintiff K. in the same family, therefore, she is financially supported than the defendant E., and the case materials are unsubstantiated and unsupportive. When reducing the amount of alimony collected from the plaintiff in favor of the defendants, the court of first instance did not take into account the equal rights of children to receive alimony from their parents, the financial situation of the parties, that is, the interests of the parties that deserve attention.

Thus, the reduction of the amount of alimony paid by the plaintiff for the maintenance of the child in favor of E. to 17%, in favor of J. up to 33% monthly of all types of earnings is incorrect. Since every child has equal rights to receive maintenance from their parents in accordance with the procedure and amounts stipulated by the KBS, according to which the amount of paid alimony for the plaintiff's children should not exceed 50% of all his income.

Based on the equality of the children's rights to maintenance from the plaintiff, it was necessary to distribute the amount of 50% of earnings (income) to be recovered from the plaintifffor four children, 12.5% each child, that is, in favor of E. for the maintenance of one minor child in the amount of 1/4 part (25%) to reduce to 1/8 part (12.5%), in favor of J.for the maintenance of three minor children, the amount of 1/2 part (50%) should be reduced to 3.8 parts (37.5%), thus, according to only two judicial acts, up to 50%.

It is necessary to fully clarify the actual circumstances that are essential for the proper resolution of the dispute, namely: what are the plaintiff's intentions, whether there is an abuse of law on the part of the plaintiff, in the case when the parties (the plaintiff and one of the defendants) are married and actually live together, run a common household, and, wishing to infringe on the rights of a child for whose maintenance the plaintiff pays alimony to another defendant, at the same time, the plaintiff intentionally files a claim for her reduction.

The norms of clause 1 of Article 139 of the KBS indicate that the recovery of alimony in shares of earnings or income of a parent who is obliged to pay alimony is carried out when alimony is paid in court. The procedure for determining the amount of alimony in shares of the payer's earnings or income is basic and applies in all cases, unless the court finds it necessary to collect alimony in a fixed amount of money in accordance with Art.141 of the KBS.

We believe that the recovery of alimony for minor children in proportion to the payer's earnings is most appropriate when collecting alimony from people with average incomes. This procedure allows you to protect the interests of the recipient and the payer of alimony and provides automatic indexing of the amount of alimony when the payer's earnings or income change.

It should be noted that an increase or decrease in the amount of alimony, determined in proportion to the earnings or income of the parent paying alimony, is possible both when collecting alimony and in the process of paying it. The amount of alimony already awarded is changed in court at the request of the claimant or the alimony payer.

Thus, the basis for making a decision to increase or decrease the share to be recovered for the maintenance of minor children is the financial or marital status of the parties or the presence of other circumstances worthy of attention.

The right to reduce or increase the amount of the parent's earnings or income collected in the form of alimony, depending on the financial situation of the parent paying them, allows the court to implement an individualized approach to determining the amount of alimony. If a parent receives an excessively high income, collecting 1/4 of all his income per child can lead to the fact that the amount of alimony will be so large that it will far exceed all the reasonable needs of the child. In this case, the court has the right to reduce the share of income to be collected for the maintenance of the child to such limits that it meets the interests of both the payer and the child. If, on the contrary, the parent's earnings or income are so low that 1/4 of it will not allow the child to provide the minimum means of subsistence, the court has the right to increase the amount of alimony. Thus, the court has the opportunity to protect the interests of the child without applying the minimum amount of alimony, which is not provided for by the current KBS. An increase in the share of earnings or income of a parent charged for the maintenance of a child should be made in such a way that the child (taking into account the receipt of funds from the other parent) is provided with a living wage and at the same time the parent has enough funds left to provide for himself. And if the parent's earnings or income are so low that they do not provide for both the parent and the child, the court must distribute earnings or income based on the principle of preferential protection of the child's interests.

The obligation of parents to support their minor children does not depend on the availability of the necessary funds for the provision of maintenance. Consequently, if these funds are insufficient, the court should strive to distribute the payer's earnings or income in such a way that, first of all, they provide for the child, but at the same time they do not deprive the payer of his livelihood at all. For example, if the payer's entire earnings are equal to the subsistence level, the court may collect 1/2 of the payer's earnings for the maintenance of the child, so that the other half of the earnings remains to the payer himself.

The need for preferential protection of the interests of the child is explained by the fact that a minor child is unable to work and cannot provide for himself, while his parent, as a rule, has the opportunity to improve his financial situation. Therefore, when deciding whether to increase the amount of alimony in such cases, other noteworthy circumstances of the case should always be taken into account.

For example, if a parent with low incomes is himself disabled by age or health condition, his income opportunities are significantly limited. In such cases, the court should pay more attention to protecting his interests than protecting the interests of an able-bodied payer.

The marital status of the parties is understood to mean the presence in the payer's family of persons to whom he is legally obliged to provide maintenance. For example, the presence of other minor children or adult disabled family members to whom the payer paid alimony. The presence in the family of a parent who pays child support and other persons who are also eligible for alimony may lead to the fact that when paying child support, the earnings or income of the person paying alimony may not be enough to support him and all the persons to whom he is obliged to provide alimony. Thus, in this sense, the payer's marital status always has an impact on his financial situation.

One of the cases of changes in the payer's financial and marital status is the presence of other minor children. Children have the right to receive equal maintenance from their parent, regardless of whether they live together with him or separately from him, as well as whether they are being held voluntarily or in court. Therefore, if, for example, the payer previously paid 1/4 of earnings or income for one child, the appearance of a second child from another marriage is the basis for reducing the amount of alimony to 1/6. Since, in accordance with paragraph 1 of art. 139CoBS for two children, 1/3 of the payer's earnings or income is subject to collection, therefore, 1/6 should be accounted for each of the children.

On the contrary, the termination of the alimony obligation in respect of one or more minor children entails an increase in the amount of alimony collected for the maintenance of the rest. Thus, when one of the children reaches the age of majority, the amount of alimony collected for the second child increases from 1/6 to 1/3.

If there are other persons in the family of a parent who pays alimony for minor children to whom he is legally obliged to provide maintenance and who are actually dependent on him (disabled, needy parents, spouse, etc.), the payment of alimony may lead to such a significant reduction in his financial situation that he will not be able to provide himself with means of livelihood.. This is also a reason to reduce the amount of alimony. Termination of duties in respect of one or more disabled family members in need (as a result of their death, restoration of their ability to work, improvement of their financial situation, or for other reasons), in turn, entails an increase in the amount of alimony for minor children to the level provided for in paragraph 1 of Article 139 of the KBS.

The financial or marital status of a child is usually not a reason for changing the amount of alimony. The presence of a second parent and the level of his security are not taken into account when determining the amount of alimony from the other parent, since parents are responsible for providing maintenance for their minor children independently of each other. The obligation of parents to pay alimony to minor children, in principle, does not depend on the financial situation of the child himself. The amount of alimony cannot be reduced even in cases where the children have significant property (house, apartment, cottage), since this property is intended for the use of the child, and not for income generation. However, the child's possession of income-generating property or other significant sources of income, for example, from entrepreneurial activities carried out by a minor, may serve as a basis for reducing the amount of alimony.

When deciding whether to increase or decrease the amount of alimony, the court has the right to take into account other conditions characterizing the financial or marital status of the parties.

The court is obliged to make a decision on changing the amount of the parent's share of earnings charged for the maintenance of minor children, and in the presence of other circumstances worthy of attention. Such circumstances include, for example, whether the payer has a disability of the first or second group. Disability itself leads to a significant increase in the cost of a person's maintenance. People with disabilities in the first group need outside care, which often takes a significant part of their income. In this regard, the payment of alimony in the amount provided for in paragraph 1 of art. 139 Cobbs, could put them in an extremely difficult position.

An analysis of the norm of paragraph 1 of Article 175 of the KBS allows us to draw the following conclusions. A change in the financial situation of the parties is understood as both an improvement and a deterioration in the financial situation of the recipient or payer of alimony. Improving the financial situation of the alimony recipient (except for minor children receiving alimony from their parents and wives receiving alimony from their spouses or former spouses during pregnancy and before the child reaches the age of three), as a result of which the alimony recipient ceases to be in need of financial assistance, is the basis for termination of the alimony obligation.

The deterioration of the alimony payer's financial situation can serve as a basis for termination of the alimony obligation only in cases where the payer is obliged to pay alimony only if the necessary funds are available for their payment. If the payer is obliged to support a person entitled to alimony, regardless of the availability of sufficient funds, the deterioration of the payer's financial situation may only lead to a reduction in the amount of alimony.

A change in marital status is understood as the appearance in the family of the payer or recipient of alimony of persons to whom they are legally required to provide maintenance and who are actually dependent on them. In relation to the alimony payer, the change in the composition of persons who are required by law to provide him with maintenance is also taken into account. The appearance of persons in the family of the alimony recipient who are alimony-liable persons of the first priority (parents, spouses, or adult children) may lead to the termination of the alimony obligation of alimony-liable persons of the second priority. The appearance of other persons in the family of the alimony recipient who are obliged to provide him with maintenance may be taken into account at the request of the alimony payer as a circumstance that led to a reduction in the alimony paid to him.

Thus, the basis of an alimony obligation is a personal family connection between the recipient and the payer of alimony, therefore, in the case of improper behavior of an adult recipient of alimony, the recovery of alimony loses its moral basis. Refusal to collect alimony is a measure of responsibility and is applied only in the case of culpable behavior of the alimony recipient. An intentional crime is defined as any crime provided for by the norms of the Criminal Code and committed with both direct and indirect intent. Improper behavior is expressed in the commission of administrative or other offenses, as well as in violation of generally accepted moral norms.

 

 

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