Refund of alimony: when challenging paternity, after 18 years, judicial practice

If the father is not the child’s own, did not adopt him on his own initiative, or did not give consent to indicate his data on the birth certificate, he is not responsible for his upbringing and maintenance.

As judicial practice shows, there are frequent cases of a man being misled regarding his relationship with a child. In such cases, fathers do not have to fulfill child support obligations.

But only if paternity is contested in court, payments can be stopped and the amount of alimony partially returned.

In what cases can alimony be returned?

Family relations are regulated by the Family Code of the Russian Federation. Child support payments are no exception. According to Art. 116, if alimony deductions have been made, their reclaiming is impossible, except in the following cases:

1. Cancellation of a court decision on the collection of alimony. The reason is the plaintiff’s provision of false information, false documents, misleading persons interested in the case.
2. Invalidation of a voluntarily drawn up alimony agreement, provided that the payer was under psychological or physical influence, or was deceived by the recipient or other citizens.
3. Establishing the fact of falsification of the writ of execution, on the basis of which the payment of alimony was made.

Misrepresentation about the fact of relationship is one of the reasons for challenging paternity.

If it is proven that the child is not the parent’s by blood or that during the adoption the man was under pressure and did not act of his own free will, alimony can be challenged and the money can only be returned in court.

The procedure is a complex multi-stage process, from challenging paternity to collecting payments from the violator of the law for the last 3 years. Money is not taken from the child. The parent (guardian) who received alimony fraudulently will be punished.

It is necessary to distinguish between overpayments made due to the lack of legal grounds for making deductions and those that arose due to other factors, for example:

• in case of an error in calculations made by the enterprise’s accounting department or the bailiff;
• in case of a decrease in income and untimely appeal to the bailiff;
• when calculating alimony after the child reaches 18 years of age;
• in case of intentional or accidental erroneous actions of an official involved in the calculation and transfer of alimony payments.

If the collection of an inflated amount of alimony is not the fault of the recipient of the funds, the person who made the mistake is obliged to compensate for the damage.

The payer is recommended to determine at what stage of the enforcement proceedings the failure occurred. If there is a typo in the writ of execution, contact the court and ask the assistant judge to correct the error. If the accountant is at fault for the incorrect amount of penalties, discuss the issue of refund.

If the culprits refuse to compensate for the excess deductions, you can contact the head of the enterprise where the irresponsible employee works, or go to court with a claim for compensation of the illegally collected amount.

Disputing paternity and child support

The father is considered to be the person about whom there is a corresponding entry in the birth certificate made by a civil registry office employee. A man is recognized as a father if:

• a woman gives birth to a child while legally married, and also within 300 days from the date of divorce (clause 2 of article 48 of the RF IC);
• the court established the fact of paternity after a genetic examination or on the basis of other evidence;
• the man personally applies to the registry office to obtain a child’s birth certificate, if necessary, with the consent of the guardianship authorities;
• stepfather adopted the child.

If one of the above conditions is met, the wife, cohabitant or officially appointed guardian of the minor has the right to request alimony.

Challenging paternity is not difficult for a father who previously considered himself biological, and the entry on the birth certificate was made fraudulently.

If the child was adopted, we are not talking about challenging paternity, but about canceling the adoption. According to judicial practice, parental divorce is not an absolute condition for the cancellation of adoption.

It is believed that the parent was aware of the responsibility, and therefore must continue to take care of the child.

Exceptions are cases where a man is forced to adopt, a condition in which he was not aware of his actions.

If the child support provider is not sure that the child is his, it is necessary to file a lawsuit to challenge paternity.

How to challenge paternity in court

The father initiating the lawsuit must apply to the district court at the defendant’s place of residence if the cost of the claim exceeds 50 thousand rubles. , or to the magistrate’s court, if less alimony has been paid.

Along with the requirement to challenge paternity, it is necessary to declare the return of alimony and the termination of payments until a court decision is made.

The procedure for returning alimony due to challenging paternity consists of the following steps:

1. Preparation of evidence of non-paternity and groundless withholding of alimony. The conclusion of a genetic examination, as well as a court decision to challenge paternity, can be presented as irrefutable evidence. The mother has the right to refuse to conduct an examination, then the father needs to find a number of indirect evidence refuting the fact of paternity. This may be a doctor’s conclusion about the plaintiff’s infertility, confirmation of being at a distant distance at the time of the alleged conception (staying on an expedition, swimming), or the wife’s residence with another man.
2. Filing a claim.
3. Payment of state duty. Its size is determined based on the cost of the claim, which, when considering alimony cases, is equal to the total of payments for the year. The calculation is made in accordance with Art. 333.19 Tax Code of the Russian Federation. The higher the price of the claim, the higher the state duty, but its amount cannot be less than 400 rubles. or more than 60 thousand rubles.
4. Attendance at the meeting, receipt of the court decision. The losing party has 1 month to file an appeal. As a rule, losing mothers try to challenge the court's decision, guided by Art. 1109 of the Civil Code of the Russian Federation. The document states that alimony payments are not subject to return if the person to whom they were transferred did not sincerely understand the illegality of their actions.

Sample claim to challenge paternity

The document is drawn up in accordance with the requirements established by 131-132 of the Code of Civil Procedure of the Russian Federation. The claim states:

• Full name of the plaintiff, defendant, contract information of the parties;
• name of the claim;
• the essence of the document, which clearly and concisely sets out the reasons for the application: when the marriage was concluded, when it was dissolved, on what basis the plaintiff was recorded in the “Father” column on the child’s birth certificate, why there were suspicions of a lack of biological relationship, what evidence the applicant can provide ;
• the petition contains a request to change the entry in the registration book of the registry office in the column “Father”, to return the alimony paid without reason;
• list of documents, date and signature.

Sample claim:

Download a sample claim

If a claim to challenge paternity has been filed previously, this must be mentioned. Attach the relevant court decision as evidence, and the new petition will contain information only about the need to return the amount of alimony withholdings.

During the hearing, if the plaintiff’s arguments are convincing, the court will make a decision:

• cancel alimony deductions;
• return the funds paid to the wound, however, it should be remembered that the deadline for which a return can be made is 3 years.

The features of the return of alimony are as follows:

• The father must have confirmation of regular transfers of funds in favor of the child and his mother. If he paid money to the card, he must provide a bank statement or other evidence that the spouse received assistance, but if the purpose of the payment does not indicate that this is “alimony,” the court will not consider the evidence significant.
• A citizen who has contested paternity, if there is a debt, is obliged to pay it, because until the court decision entered into force, he was still the father of the child.
• In order to return the funds, it is necessary to insist on deliberately concealing the facts about the birth of a child from another man, and the woman can be convicted under Art. 303 of the Criminal Code of the Russian Federation for falsification of evidence.

According to statistics, any man can challenge paternity if there is irrefutable evidence, but it is difficult to claim the amount for past periods. In this matter, the court comes to the protection of minor children and their mothers.

Citizen S. appealed to the city court of the Samara region with a claim to challenge paternity, make changes to the vital record, and return alimony for the previous 3 years. According to the plaintiff’s testimony, he was in a close relationship with citizen M., who at the time of their acquaintance was pregnant by another man. Wanting to start a family, S.

Knowing that he was not the biological father of the child, after his birth he contacted the registry office and submitted an application to enter his full name as the father in accordance with Art. 51 RF IC. After the breakup, M. filed for alimony.

He regularly paid the due amount, but after the birth of children in another marriage, he cannot support a child who is not biological.

According to the defendant's testimony, the initiative to establish paternity came from S. At the time of filing the application, S. knew that he was not the biological father. The child has suffered psychological trauma because he does not know another father. The court decided to dismiss the claim without satisfaction.

Cases of challenging paternity, depriving a child of alimony and returning the amount paid involve the need to search for evidence to convince the court that the woman’s actions were premeditated. In such cases, you cannot do without the help of a lawyer from the website ros-nasledstvo.ru. With the support of a specialist, it is possible to prove the personal interest of the child’s mother in receiving funds for the purpose of enrichment, but the consequences can be unpredictable. The court may impose a fine on the violator, arrest her or oblige her to perform corrective labor.

FREE CONSULTATIONS are available for you! If you want to solve exactly your problem, then :

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Source: https://ros-nasledstvo.ru/vozvrat-alimentov-pri-osparivanii-ottsovstva/

Refund of alimony: when challenging paternity, after 18 years, judicial practice

Violating the rights of any citizen of the country is
a crime.
It’s the same with alimony: if it was assigned incorrectly, you can challenge it in court.
Is it possible to return alimony, and in what cases? Let's consider the legal framework regulating this issue.

Child support for someone else's child

Due to the large number of divorces in our country, situations are increasingly arising when alimony is not awarded to the father of the child.

Biological paternity is the basis for the assignment of alimony, or its cancellation.

If alimony was assigned to a person who is not the child’s father by blood, the payment can be challenged in court.

A man is not obliged to pay child support for someone else’s child, but can do it voluntarily if he wants to.

To stop payments, you will need to file a lawsuit. The defendant may agree that paternity is not biological, and the court will waive the payments.

This is the simplest option. If the defendant (the child’s mother) insists that the plaintiff is the biological father of the child, the court will order an examination. The plaintiff will have to pay for the examination.

Read also: How to get a duplicate divorce certificate

If the examination shows that the plaintiff is the biological father of the child, he will have to continue to pay child support.

If the examination confirms that the plaintiff is not the blood father, then the court will oblige the defendant to reimburse the costs of DNA. Payments will be cancelled.

Claim to challenge paternity. Download sample. [18.00 KB]

Abandonment of a child: alimony, sample application, in favor of another person.

Is it possible to force the mother of a child to return the money that a man paid
for someone else’s child?

Article 116 of the RF IC clearly states that the return of child support is impossible.

Child support cannot be returned due to lack of blood relationship.

Only if the plaintiff manages to prove in court that the child’s mother deliberately misled the court, committed fraud, and deceived the man into paying child support. It will also be necessary to prove that the man did not know about this before.

In practice this is impossible to do. The procedure for assigning alimony is a judicial process. The defendant will be notified in advance that the trial will take place.

If he did not immediately decide to prove the absence of kinship, and preferred to simply pay alimony for someone else’s child, and then changed his mind, this is not a reason for returning alimony.

Here the law will protect the rights of mother and child.

To avoid such a situation, a man must initially
prove in court that he is not the father of the child.
In this case, payments simply will not be assigned.

Moreover, the court will force him to pay alimony for the entire time when the man had to pay it. Whether the man knew about the lack of consanguinity or not does not matter.

It does not matter what the basis for demanding payments was: an agreement or a writ of execution.

If in court it can be proven that a man paid alimony for someone else’s child, then for the entire time he had to pay alimony, they will demand it from him. You will have to pay off all debts and overdue payments.

You can try, of course, to prove that the child’s mother deliberately hid from the man that he was not the father. But it is almost impossible to prove the selfishness of intentions.

In practice, the court will refer to the fact that the man should have carried out the examination immediately if there were any doubts. And it will most likely not be possible to return previously paid child benefits.

Article 116 will provide the legal basis for refusal.

Enforcement proceedings for alimony: deadlines, law, sample.

In what cases can alimony be returned?

There are situations in judicial practice when the return of alimony is possible.

Thus, the alimony payer will be able to return the money if the payments were erroneously transferred from the accounting department of the organization where he is employed.

The fact of the error must be identified and understood. In practice, the money must be returned by the one who made the mistake.

The accountant who made the calculations and carried out the transfer of funds. At the same time, they go to court so that the money transferred erroneously is returned.

Child support is often mistakenly transferred per month after the child reaches adulthood.

Chad turns 18, but employees continue to make payments. These funds will also be returned.

In such cases, you can ask the person who is the child’s guardian and accepts alimony to return the payments voluntarily.

If the mother or guardian refuses to return the money, you can go to court. Such processes, as a rule, end in favor of the plaintiff.

When drawing up an application for the return of alimony, the plaintiff will refer to Article 1109 of the Civil Code.

Sample application for return of alimony

Application for return of alimony. Download sample. [13.51 KB]

According to the article, only overpaid money can be returned: the excess. When the accounting department transfers an excess payment, and the child has already reached the age of majority, or when the amount was overestimated.

This is what happens when an accounting program fails. Sometimes it is not the person who is at fault, but the technology. By proving this fact, the accountant will be able to relieve himself of responsibility.

Before going to court to return child support, you should talk to the recipient: the guardian or mother of the child. You can return funds much faster, voluntarily.

Having explained your position, it is worth mentioning that if you refuse to return the money, you will go to court. For this purpose, it is not necessary to meet with your ex-wife yourself; you can ask a lawyer to set up a meeting.

The lawyer will competently present the facts and tell you what will happen in the event of a refusal to return the erroneously transferred funds.

Conclusion

Even after returning the writ of execution, alimony is not returned. This issue is regulated by the RF IC in Article 116. You can only return funds transferred by mistake.

There is a small chance that it will be possible to obtain the return of alimony if there is strong evidence of fraud. If the child’s mother deliberately misled the court and the alimony payer, and hid the fact of the absence of blood relationship for the purpose of profit.

But in practice it is almost impossible to prove this. All that a man who paid money for someone else’s child can count on is a refund of taxes on alimony and the termination of enforcement proceedings.

Source: https://pravasemei.ru/alimenty/vozvrat-alimentov/

Refund of alimony after challenging paternity - how to return alimony after challenging paternity

Home / Alimony / Refund of alimony when challenging paternity

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It happens when the payment of alimony becomes a violation of the rights of the payer. For example, if alimony was obtained through error, deception, misrepresentation of facts and provision of false information. In this case, the payer has the right to demand the return of the funds paid, and the unscrupulous recipient is obliged to return the illegally received funds and be punished.

Grounds for return of alimony

According to Art. 116 of the RF IC, the following circumstances may serve as conditions for this:

• False information and forged documents (alimony agreement, court decision, writ of execution) provided by the recipient of alimony;
• Use of force, threats, deception when concluding an alimony agreement with the alimony payer;
• Payment of excess amounts due to errors in calculating alimony payments.

Only in the presence of the above circumstances, the alimony payer can return the money paid to him.

At the same time, the main condition for the return procedure is respect for the rights and interests of the child. If the return of alimony payments occurs due to the fault of an official (for example, the accountant who made the transfer) or the recipient of alimony (parent, adoptive parent, guardian), it is they who must compensate for the losses caused to the payer - at their own expense.

The child's funds and property remain inviolable.

Is it possible to return child support if paternity is disproved?

Among the circumstances listed above, there is no circumstance of challenging paternity. Is it really possible that if alimony was paid by the payer to someone other than his own child, it cannot be returned?

Challenging paternity is a judicial procedure that is an official confirmation or refutation of the fact of biological relationship between a man (father) and a child.

In order to disprove paternity and cancel child support, you must do the following:

• Go to court with a claim to challenge paternity and cancel alimony;
• Take part in a genetic examination to establish or refute paternity (it is advisable that the genetic test be carried out by court order - to exclude suspicions of forgery);
• Obtain a court decision and transfer it to the SSP to cancel alimony payments.

Cancellation of alimony

Challenging paternity is inextricably linked with the abolition of child support obligations. If the results of a genetic examination (or other studies) reliably confirm that the man is not the father of the child, the collection of payments for this child is stopped.

• Cancellation of alimony occurs from the moment a court decision is made; collection ceases after the submission of this decision to the bailiff service.
• True, there are exceptions to this rule.
• For example, if paternity is disputed, but the real father of the child has not been established, if there is no one to support the child, the court may oblige the “former father” to pay alimony to the child until adulthood, adoption or establishment of paternity.

Refund of paid alimony after challenging paternity

Men who initiate the procedure for challenging paternity are interested not only in the cancellation of alimony, but also in the return of paid alimony. Article 116 of the Family Code gives an unequivocal negative answer to the question of the return of alimony after challenging paternity. This is not allowed.

All amounts paid for alimony are non-refundable.

Moreover, if at the time of the court decision to challenge paternity the “former father” has arrears in child support, the court may oblige him to repay the debt to the “former” child. And if the evasion from paying alimony was intentional, you will also be punished for this offense.

How to get child support back after challenging paternity? 

If the “ex-father” proves in court that the child’s mother knew that there was no blood connection between him and the child, but used deception and provided false information, the court may demand the return of alimony.

Legal regulation and judicial practice in cases of cancellation and return of alimony have developed somewhat paradoxically:

1. The stepfather is considered the parent and must pay child support (and repay any accumulated child support arrears) throughout the paternity proceedings and until a court decision is made;
2. After the court makes a decision to refute paternity, the payment of alimony may be terminated;
3. If there is reason to believe that the child’s mother deliberately misled the father in order to collect alimony, you can go to court with a new claim - for the return of illegally collected amounts of money over the past three years.

The statement of claim for the return of paid alimony must include the following information:

• Name and address of the judicial authority;
• Information about the parties (full name, address), about the child for whom maintenance was paid (full name, address, date of birth);
• A reference to a court decision (court order) or a voluntary alimony agreement, according to which maintenance was paid for the child;
• A link to a court decision to disprove paternity;
• Information about the intentional misleading of the plaintiff regarding paternity;
• Request to cancel a court decision (court order) or to invalidate a written alimony agreement on the collection of alimony payments;
• Request for the return of unlawful benefits received by the defendant;
• List of applications (evidence);
• Signature of the plaintiff and date of filing the claim.

As mentioned above, the deceived father has the right to demand the return of previously paid alimony only for the last three years if he can prove that the child’s mother deliberately misled him regarding paternity. And as judicial practice shows, proving this is difficult, much more difficult than disproving paternity using a genetic test.

The ideal course of events is the mother’s voluntary admission of deception. But you can’t count on the mother to confess and return the sums of money received over 3 years and already spent on the child. The plaintiff must prove himself that the mother knew about the conception of the child from another man and deliberately misled the plaintiff in order to receive alimony.

What evidence can a deceived father use?

• Records of telephone conversations, correspondence (mail or electronic) on the topic of the plaintiff’s paternity;
• Recordings (video or audio) that record the mother’s admission that the plaintiff is not the child’s natural father and was deliberately misled;
• Testimony of witnesses that information about paternity was hidden from the plaintiff.

Read also: Register in the early stages of pregnancy: how many weeks, benefits

Important! A court decision that is positive for the plaintiff (on the return of previously paid sums of money) will be made only after it has been established that information about the real father was deliberately concealed and the child’s stepfather was misled. As we see, a positive decision can only be achieved if there is a well-thought-out and reliable evidence base.

And judicial practice in such cases is quite contradictory and complex.

Example 1

The husband found out about his wife's infidelity and demanded a divorce. A child born in marriage remained with his mother; his father paid alimony for his maintenance for 6 years. After 6 years, the father suspected that his daughter was not born from him. In court, the plaintiff’s suspicions were justified: the child was born from another man.

The alimony payment was cancelled, but the father also demanded the return of the amount paid over the last three years. The mother of the child spent alimony on the needs of the child; she had no property or cash savings, so she could not return the alimony in a contractual manner. The man filed a lawsuit.

The court examined the case and refused to return the alimony paid to the plaintiff, since he failed to prove the mother’s deliberate deception.

Thus, the most difficult thing is to prove the mother’s deliberate concealment of actual paternity.

In addition, when considering child support cases, the courts are guided by the interests of the minor child. According to Art. 1109 of the Civil Code of the Russian Federation, it is impossible to return sums of money paid without reason if they were used as the main means of subsistence and were not obtained in bad faith. The mother could well have been mistaken about paternity in good faith.

Even if deception took place, courts often appeal to the provisions of Art. 116 of the RF IC, according to which the return of paid alimony is possible only if the mother commits “forgery” (using forged documents) or uses deception and coercion when concluding a written alimony agreement.

Example 2

The husband suffered from infertility, so the child in the marriage was conceived through artificial insemination, paternity was recognized voluntarily, and the names of the husband and wife were indicated on the birth certificate. A few years after the birth of the child, the couple divorced.

The mother filed for child support, but the father decided to challenge paternity in court and not pay money for the maintenance of the “step-child.” The court refused to the father, since he knew the circumstances of the conception and birth of the child, and ordered him to pay alimony.

If, at the time of concluding a child support agreement or making a court decision, the father, as a rule, was voluntarily entered in the child’s birth certificate, and the mother did not knowingly submit false information, it is unlikely that it will be possible to obtain a return of the amounts paid to the child.

However, circumstances vary and in some cases lawyers achieve a positive result for the plaintiff.

If you are unsure whether to initiate litigation, consult with a competent family law lawyer on our portal. We will help you assess your chances and determine a strategy for further action. We do not touch on the moral side of the matter - we act exclusively in the legal field. You can ask a question and get an answer for free!

Source: http://law-divorce.ru/vozvrat-alimentov-pri-osparivanii-ottsovstva/

Refund of child support after challenging paternity: how and when it can be done

Updated 10/22/2019

2019-10-09T12:29:37+03:00

How to avoid paying child support for someone else's child? This type of litigation is currently quite relevant in family law. Often the alimony payer turns a blind eye to the fact that he is not biologically the father of the child in whose favor the transfers are made, but continues to pay anyway.

In such a situation, there is a high probability of challenging the fact of paternity in court. Such proceedings allow you not only to refute your paternity, but also to return funds transferred in favor of someone else’s son or daughter.

The legislation protects the rights of the child as much as possible, therefore child support payments will be stopped only from the moment the court decision is made. Before this, genetic testing will be carried out and other evidence will be considered.

If it turns out in court that previously alimony was not paid intentionally, the court may decide to impose a punishment for non-payment.

It is possible to return in court the funds paid for the maintenance of someone else's child for past periods only if it can be proven that the child's mother deliberately misled the judge considering the case of alimony collection. This can be done within the limitation period.

When starting a legal battle, the plaintiff must understand that the claim for compensation for unlawful benefits will need to be sent to the recipient of alimony, and the court decision to pay this alimony must be canceled in court. The listed methods are the only options for not paying child support for someone else’s child.

If the child has already reached the age of majority, then the alimony paid can be returned only on the grounds indicated above.

Since the termination of payments occurs automatically after the minor reaches 18 years of age, it makes no sense to challenge paternity in order to reimburse the listed alimony.

The collection of alimony stops after the result of a genetic examination and other studies that confirm that the man is not the father of the child. Cancellation of alimony occurs from the moment the relevant court decision is made and this decision is provided to the bailiff service.

In some cases, for example, if it is not possible to establish the father of the child, the court may oblige the alimony provider to pay money for the maintenance of this child until paternity is established or the child is adopted.

If a fact is discovered that proves the absence of a biological relationship with the child, the parent can file a civil lawsuit in court. In such cases, the law gives the father the right to demand that the entry in the document confirming the fact of birth be changed. A child who has reached the age of 18 or his guardian also has the right to challenge paternity.

When filing a claim, the parent will need to enter a request to cancel payments before the court makes a decision. But funds for child support during this time will continue to be transferred in favor of the child.

If the defendant agrees with the demands presented in court, the claim will be satisfied without ordering an examination. Otherwise, the court will order a DNA test, which will be paid for by the plaintiff. If biological paternity is denied, legal costs will be reimbursed by the defendant.

Men who begin the procedure are interested in whether alimony can be returned when paternity is contested. The answer is in Article 116 of the Family Code of the Russian Federation - the return of alimony when paternity is contested is not allowed.

This means that amounts already paid cannot be returned.

The court will also oblige the man to repay the debt to the “former” child if at the time of challenging paternity the man had arrears in child support. If the alimony holder deliberately evaded paying child support, the court will impose punishment for this offense.

Is there a refund of paid alimony after the procedure for challenging paternity? It is possible to return excessively withheld funds in the following situations if:

1. The company's accounting department made a mistake when calculating alimony.
2. The organization was untimely notified by the recipient of alimony or the executive service about the fact that the child reached the age of majority or about a change in the amount of alimony payments.
3. Errors were made when calculating accruals.
4. When officials commit intentional actions.

Excess amounts paid are refunded based on actual circumstances. For example, if an error was made by the accounting department of an enterprise, then the money is returned to the employee by the organization, and the losses that the enterprise incurs are covered by deducting from the salary of the person at fault.

Recovery from the recipient is possible in court only if the defendant gives personal consent to such a procedure.

If the funds were transferred in excess due to the fact that the recipient did not notify about the changed conditions and circumstances, the money can be returned if:

• there are no objections from the guilty party. Refunds are made after sending the appropriate request;
• the recipient of alimony refuses. Refunds are made through legal process.

If during the trial it is established that there was a mechanical or accounting error that occurs when software malfunctions or typos in documents, it is also possible to return the overcharged funds.

Questions regarding alimony after challenging paternity periodically arise, therefore, in disputes about unlawful assignment, Article 1109 of the Civil Code of the Russian Federation is applied, which allows for partial return of money.

This legal act states that the payer has the right to demand the return of alimony payments in court. To do this, he must provide evidence of an error in calculating the funds collected in favor of the child.

The basis for the return in this case will be unintentional overpayments of alimony that occurred due to a failure in the software or other equipment of the bank or organization responsible for transferring funds.

In this case, only the excess will be returned.

List of grounds for partial refund of over-transferred funds:

1. Accounting errors of the enterprise in which the alimony worker works.
2. Lack of notification from the recipient of alimony or the executive service about the termination of alimony obligations.
3. Arithmetic errors in calculations.
4. System failures in computer programs.
5. Mistakes by bank or post office employees when transferring alimony.

It must be remembered that an appeal for the return of overpaid funds is sent to the organization that is to blame for the error. This means that if a mistake is made by the chief accountant of the enterprise, the funds will be returned to the child support provider from the employee’s salary, and not from the child’s account.

Important

An overpayment that arose due to the fault of the claimant who did not notify about the expiration of the period for collecting alimony payments can be returned only with a voluntary agreement between the parties.

How to return alimony? This is only possible in certain cases:

• when canceling illegal alimony;
• if the alimony agreement is invalid;
• in case of a court verdict on forgery of a writ of execution for the collection of alimony.

Claiming back alimony is possible only if it is proven that the recipient provided the court with false information or forged documents. For example, if the child’s mother misled a man regarding his paternity and provided incorrect information to the court.

There are situations when the recipient of alimony forces a man to sign an alimony agreement through deception, violence or threats. The Civil Code of the Russian Federation recognizes these transactions as invalid.

If a man signed an agreement as a result of deceiving a woman, if this fact is revealed, the alimony provider has the right to challenge the agreement in court.

After this, it is possible to go to court to return the illegally paid funds.

If a man contacts law enforcement agencies with a statement about falsifying a court decision on alimony or an alimony agreement, a criminal case will be initiated against the child’s mother, in accordance with Article 237 of the Criminal Code of the Russian Federation. If the mother's guilt is proven, the court will impose criminal penalties against her. After this, the man will be able to claim the previously listed alimony in court.

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It should be understood that if it is proven that the child’s mother knew about the absence of a biological connection between the child and the alimony payer, then only the mother’s property will be subject to recovery in favor of the payer. The child's property is considered inviolable.

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The return procedure has the following features:

• by law, the non-blood father of the child bears the status and responsibility of the parent until a decision is made to challenge child support;
• payment of alimony stops only from the moment paternity is disproved, and the person is not released from the debt;
• the return of collected alimony is based only on the intentional actions of the claimant.

The procedure for the return of paid funds for the alimony holder:

1. Collection of necessary documentation.
2. Confirmation of the grounds for challenging paternity.
3. Formation of an evidence base that confirms the recipient’s guilt.
4. Drawing up and filing a lawsuit
5. Conducting court-ordered genetic examinations and research.
6. Making a court decision.
7. Providing a writ of execution to the bailiff.

The return of paid alimony money is made only by decision of the court, which during the proceedings orders a bioexpertise (DNA test). When considering a claim, the testimony of witnesses is taken into account.

If it is impossible to prove conscious manipulation of the payer’s woman, then even if paternity is denied, no refund will be made.

Otherwise, the proceedings are conducted taking into account the provisions of Article 303 of the Criminal Code of the Russian Federation.

Refunds of paid maintenance are made in accordance with the general requirements of the Code of Civil Procedure of the Russian Federation:

• if the amount of the claim is less than 50 thousand rubles. the refund will have to be made in the magistrate's court;
• if the amount of the claim is more than 50 thousand rubles. and at the same time the alimony payer demands to challenge paternity, this case is considered by the city (district) court of general jurisdiction.

The claim is filed at the place of residence of the defendant.

In order not to pay more for alimony after challenging paternity, you must comply with the requirements when drawing up a statement of claim:

• writing style - formal and businesslike;
• no obscene language;
• objectivity and restraint of presentation;
• accuracy and specificity in the chronology of the presentation of facts.

The claim must provide reliable information on the following points:

1. Name of the judicial authority.
2. Information about the participants in the process (full name, date of birth, registration).
3. Bringing court decisions:
   • on an alimony agreement or collection of alimony;
   • to challenge biological paternity;
4. Presentation of circumstances confirming the misrepresentation of the payer.
5. Claim:
   • cancellation of a court order or alimony agreement, according to which material support was collected in favor of a minor;
   • return of funds unjustifiably paid to the defendant;
6. Applications.
7. Date of compilation, signature of the plaintiff.

The claim is drawn up in an amount corresponding to the number of parties to the trial.

The copies of documents included in the application must be certified by the authorized bodies. To consider a claim for the return of alimony, the judge must be provided with:

• information about income;
• passport details;
• conclusion of genetic examination (DNA test);
• other evidence;
• petitions.

• To the Oktyabrsky District Court of Omsk
• st. 9th Line, building 232
• Potekhonin Roman Sergeevich

st. Dekabristov, 108, Omsk, 644010

tel. (3812) 44-57-23

Potekhonina Veronica Anatolyevna

st. Kosmicheskiy Avenue, 97a, building 2, Omsk, 644076

1. tel. (3812) 29-00-43
2. Statement of claim
3. about challenging paternity and returning funds paid

Source: https://bukvaprava.ru/vozvrat-alimentov-posle-osparivaniya-otcovstva/

Refund of alimony after challenging paternity - examples of judicial practice

Exemption from alimony payments

23.10.2017

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The payment of child support is the responsibility of the parents only. When the ex-husband finds out that the child is not his own, he often seeks to return the money spent. The case is quite complicated, what was paid is not returned, you can demand the mother to return the funds, but under certain conditions.

Article 80 of the Family Code states: alimony is paid exclusively by parents. If the ex-husband finds out that the child is not his own, his confidence is not enough. He is required to challenge paternity, the right is spelled out in Article 52 of the Family Code.

A statement of claim is written, in which, in addition to the requirement to challenge paternity, it is recommended to include a clause on the termination of alimony payments. Otherwise, even if the court recognizes a non-related relationship with the child, you will have to continue to pay.

If you simply refuse when paternity is not recognized by the court, you may be held accountable.

A child support payer who wants to prove that he is not the natural father should initiate a judicial investigation and act in the following way:

1. 1. submit an application to invalidate paternity and cancel the payment of maintenance;
2. 2. ask, if the defendant recognizes the lack of relationship, to cancel the genetic study.

If the mother disagrees or does not know the biological father, a DNA test is ordered by the court. Payment falls on the plaintiff, but if the examination reveals evidence that he is not the biological father, the defendant will be forced to return the funds spent on the research. After the court decision is positive for the plaintiff, he can demand a refund of the money. The statement contains:

• requiring the defendant to compensate for the wrongfully received benefit;
• requirement to cancel payments if this has not been done earlier.

Return of alimony after challenging paternity is possible in rare cases. In practice, the real case is when the mother voluntarily admits to knowing that the plaintiff is not his own father. As you might guess, this happens in extremely rare cases. In addition, we are not talking about the return of alimony - it went to the child - but about compensation by the mother for the losses wrongfully inflicted on the applicant.

The plaintiff must prove in court that the mother knew that he was not the biological father and took advantage of his trust or ignorance to write him down on the birth certificate.

If the plaintiff can prove the malicious intent of his ex-wife, who filed an application for child support, knowing that he is not his own child, he can claim the amount paid.

The court may order the mother who took advantage of the deception to return the funds paid over the last three years.

If a decision made by a previous court is overturned, the plaintiff is obliged to return to the defendant all funds paid under the previous decision.

Another important circumstance that gives the plaintiff the opportunity to get back payments is the circumstance when he was forced to enter into an alimony agreement through threats, violence, or deception.

When returning, the interests and rights of the child must be respected. He shouldn't get hurt. If payments were made incorrectly due to the fault of the mother, guardian, or adoptive parent, and this is proven, then it is the listed persons who must be held accountable financially.

Children's property and funds remain inviolable.

It happens that the mother, after the child reaches adulthood, admits that her ex-husband is not the biological father. She unknowingly believes that since payments have been legally stopped, she can take revenge on her ex-husband by revealing the truth to him. But the law determines: for 3 years, you can demand a judicial investigation and be held accountable for providing knowingly false information.

In practice, the losing party often challenges the court's decision. It is enough for a woman to prove her ignorance regarding paternity. In this case, Article 1109 of the Civil Code of the Russian Federation applies. It says that funds received from a person who is not the child’s relatives will not be returned. The mother was mistaken about paternity, the funds were spent on the children's needs.

The only exception is when the mother misses the appeal deadline.
Then she will have to pay the damages caused to the plaintiff, because Article 13 of the Code of Civil Procedure states: a court decision that has entered into legal force is mandatory for execution. It will not be possible to get back the money spent if the agreement on alimony is reached verbally. If it turns out that the father does not have any documents confirming payments, it will not be possible to return the money. The Family and Civil Codes indicate: an agreement must be drawn up in writing and certified by a notary, and one concluded in non-compliance with the law is not considered valid. A repeated claim for non-recognition of paternity is prohibited, since there is a decision that has entered into force.

There is an important exception to the rules for the return of money, even if the court has proven that there is no relationship between the plaintiff and the child.

This happens when the child has no relatives who could support him, and the real father could not be identified.

The court may make a decision that will oblige the false father to pay child support until he reaches the age of majority, until he is adopted or the real father is identified.

In life there are many different cases related to the payment of alimony by a person who is not a relative and their return. Let us give several examples from judicial practice that will allow us to more accurately understand these issues.

The ex-husband made payments for 5 years, then filed a claim for non-recognition of paternity. After an examination, the court found that he is not the real father. The court also canceled the payment of alimony. The angry husband demands the return of the money he paid over 5 years: about two million.

The mother cannot return them; all she has is an apartment. She is worried that the apartment will be taken away as a refund. The court rejected the plaintiff's request to return what was spent. The decision made was based on the fact that the mother believed that she gave birth to her ex-husband and did not deceive him.

She won’t have to return anything, especially since the apartment won’t be taken away.

In another case, the father knew that he was not his own because he suffered from infertility. In the birth certificate after artificial insemination of the mother, to which he gave written consent, he was recorded as the father. After the divorce, he challenged paternity when his mother filed an application for child support.

The court rejected the request to challenge paternity, since the husband knew that the child was not his own, and was recorded in the certificate on the basis of Art.
51, paragraph 2, Family Code. Moreover, the ex-wife’s demand for alimony payment was satisfied. The husband filed an application to contest paternity. Before that, I paid alimony for 6 years. His request was granted and it was determined that he was not the biological father. In the statement of claim, the alimony payer did not indicate that he was demanding that payments be stopped. He stopped paying them on his own. The wife filed a claim that payments had stopped. The court recognized the ex-husband's debt with an obligation to pay it. Until the order canceling alimony comes into force, it must be paid.

In general, it should be said that practice proves: it is possible to challenge paternity, but even if this happens successfully, it is very rarely possible to return the money spent.

It is almost impossible to prove that the mother acted intentionally and knew that she did not give birth to her husband. Moreover, this entails criminal liability.

It is unlikely that such a case will be dealt with in court, because bringing the mother to criminal liability will take away the only supporter and cause harm to the child.

Source: https://krugompravo.ru/alimenty/osvoboghdenie-ot-alimentov/vozvrat-alimentov-posle-osparivaniya-otcovstva.html