Settlement agreement on the payment of alimony, judicial practice. How to cancel alimony by law

An alimony agreement, like any agreement, can be declared invalid. This happens extremely rarely, since the legality of the transaction is verified by a notary.

The agreement may be invalidated in whole or in part. The latter occurs if only one or more conditions are contrary to the law, and the exclusion of such conditions from the text of the agreement does not affect the general meaning of the agreement (the parties could sign the agreement without these conditions).

Under what circumstances can a child support agreement be invalidated?

The grounds for the loss of legal force of this agreement may be:

• general - apply to all contracts;
• special - they apply only to the alimony agreement.

General grounds for invalidity, in turn, are divided into:

• entailing the nullity of the transaction
• entailing the contestability of the transaction.

It follows from this that the alimony contract may be void or voidable. The difference between a void and a voidable transaction, as well as the general grounds for the invalidity of contracts, are described in detail.

An agreement to pay alimony will be void if:

• it neglects the imperative norms of the law (transferring illegal businesses, narcotic or psychotropic substances, etc. as alimony);
• it does not have a notarization;
• committed only for show (for example, to protect property from foreclosure);
• it was committed by an incapacitated or minor (under 14 years old) person, etc.

The contract will be voidable if:

• it was signed by a teenager without parental consent;
• it was compiled by deception or under duress, etc.

An alimony contract can also be challenged on a special basis: if its terms grossly violate the interests of the child or the incapacitated person.

On behalf of minors and incompetents, the agreement is signed by legal representatives and they do not always fulfill their duties in good faith. A special ground for invalidity is a special protection of the rights of children and unhealthy family members.

Important! An agreement can be challenged on this basis only when the violation of rights is gross.

The severity of the violation is assessed individually. It could be:

• establishing too small alimony amount (below the minimum limit by law);
• providing financial assistance only up to 14 (15, 16, 17...) years of age;
• infrequent payments, etc.

Consequences of invalidating an alimony contract

The alimony agreement is subject to all the rules on invalid transactions, therefore in this case the general consequence of invalidity applies - the absence of legal consequences:

• in case of an insignificant transaction - from the moment of its completion;
• if it is contestable - from the moment it is recognized as such by the court.

At the same time, money under an agreement, even an invalid one, is usually transferred to the current needs of a child or disabled adult. Taking this fact into account, the legislator established a ban on the return of funds paid under the agreement, unless the agreement was the result of deception, threats or other coercion on the part of the recipient of the funds. In the latter case, illegally withheld alimony must be returned.

How to invalidate an alimony agreement?

The only way to challenge an agreement to pay alimony is through court. To do this, the interested party needs to draw up statement of claim, attach supporting documents to it and send it to the judge. Let's look at the steps in detail.

Step 1. Drawing up a claim.

You can contact a law office, or you can file a claim yourself. The header of the application indicates the court to which you are applying (at the defendant’s residential address), information about the plaintiff and defendant.

• when the agreement was concluded and on what terms;
• why do you consider it invalid;
• regulatory justification for the claim (link to articles of the Civil Code of the Russian Federation and the Investigative Committee of the Russian Federation on invalid transactions and their consequences);
• you fill out the petition part, then the demand itself (to recognize the agreement as invalid, to apply the consequences of the invalidity of the transaction, to recover the amount of alimony paid, etc.).

Please attach to the application documents confirming what was said in the application (alimony agreement, evidence of alimony payment), as well as a receipt for payment of the state fee in the amount of 300 rubles. It is also required to attach copies of the claim with attachments for the second party.

Step 2. Filing a claim in court.

The statement of claim is submitted to the magistrate at the place of residence of the defendant. You can find out which court district a specific address belongs to on the magistrate’s website or by phone by calling all court districts or the district court.

You can file a claim on purpose through the reception (you must present your passport and power of attorney if a representative is filing a claim) or by mail.

Step 3. Trial.

Occurs in one or more court hearings that must be attended. Based on the results of the trial, the court makes a decision.

Step 4. Get the solution in hand.

You can get a solution after it has been prepared in a motivated form. After the decision comes into force, you need to put a corresponding mark on it with a blue official seal.

Important! The agreement is considered invalid not from the moment the decision is announced, but from the moment it comes into force.

Step 5. Receipt writ of execution.

It is not always required, but only if the court satisfies property-related demands (for example, for the return of paid alimony). A writ of execution is issued at the request of the claimant (winning party).

Step 6. Presentation of the writ of execution for execution.

You can present it to the bailiff service, to the bank where the debtor keeps his savings, or at his place of work.

Who can file a claim to invalidate an alimony agreement?

The circle of persons authorized to challenge the agreement may vary depending on the grounds for invalidity of the transaction. For convenience, the list of those who can go to court is shown in the table.

Invalidation of alimony agreement: judicial practice

The provisions of the Family Code on alimony agreements came into force quite a long time ago, and during their validity, sufficient judicial practice has accumulated.

Courts widely use Art. 102 of the RF IC, which specifies a special basis for the invalidity of the alimony payment transaction.

In addition, courts often satisfy claims to recognize an agreement as fictitious at the request of creditors. In this case, the court refers to the fact that the agreement on the payment of alimony was not intended to support a family member, but to preserve the property from foreclosure. As evidence of the sham agreement, the courts referred to:

• actual cohabitation of the payer and recipient of alimony;
• too high amounts of alimony;
• the actual impossibility of fulfilling the agreement due to the fact that the alimony payment is higher than the monthly income of the payer;
• the absence of a dispute about alimony before the collection of a loan debt or other debt from the payer;
• lack of evidence of actual transfer of alimony (receipts, documents from the bank, etc.).

However, the courts have repeatedly drawn attention to the fact that the conclusion of an alimony agreement after the collection of another debt from the payer does not in itself indicate the imaginary nature of the transaction.

Vera Antonova, lawyer, especially for the site

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