Advance alimony: is it withheld or not?

Alimony in the Family Code of the Russian Federation refers to money that is paid by some family members for the maintenance of others, if the latter need it. Most often, child support is collected from the father or mother in the event of a divorce. Alimony is withheld both from salary and other official sources of income if one of three documents is available:

• order/decision issued by the court;
• executive document;
• agreement concluded between both parties and notarized.

However, for many people the question remains unclear: how does alimony relate to the advance payment? Is alimony required for this type of income? To understand how and when alimony is deducted from an advance payment, let’s consider all the important points of the case.

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The legality of withholding alimony is prescribed in various legislative acts, in particular in Government Resolution No. 841. Collection of alimony can be made:

• from standard sources (salary, etc.);
• from bonus accruals;
• from sources of additional income;
• from salary advances, etc.

Article No. 101 of Federal Law No. 229 contains a list of payments from which alimony cannot be withheld:

1. Cash accrued in connection with the loss of the main breadwinner.
2. Funds issued in cases of death or injury, injury, trauma, or concussion during the performance of official duties (including to family members of the deceased person).
3. Funds paid to care for disabled persons from different types of budgets.
4. Payments of a monthly or annual nature, made in accordance with current legislation for certain categories of citizens (purchase of medicines, travel allowances, etc.).
5. Money accrued as alimony during the period of search activities of the debtor parent.
6. Compensatory payments provided for by the Russian labor law related to:

• business trips, transfer of an employee to work in other places;
• wear and tear of tools that allow the employee to carry out full-fledged professional activities;
• payments to an enterprise/organization for the birth of children, registration of marriages, death of close relatives.

1. Payments regulated by insurance coverage under the terms of compulsory social insurance (with the exception of sick leave benefits and disability pension benefits).
2. Amounts of money allocated from the federal budget for the payment of survivors' pensions.
3. Funds accrued from the budget of the constituent entities of the Russian Federation for the payment of survivor benefits.
4. Child benefits allocated from different budgets.
5. Statutory payments in the form of maternity capital (in accordance with Federal Law No. 256).
6. Amounts related to the category of one-time material assistance, allocated from various budgets, including funds from foreign states or companies in the following cases:

• occurrence of natural disasters, emergency circumstances;
• terrorist attacks;
• facts of death of family members and close relatives;
• receiving humanitarian assistance;
• payments of remunerations related to the provision of measures to assist in the processes of disclosure, prevention, suppression of crimes and terrorist acts.

1. Full or partial compensation of the cost of trips to employees and members of their families from the employing companies. Compensation for travel packages for health purposes. The exception is tourist vouchers.
2. Compensation for travel to the place of treatment (in two directions), if established by the Federal Law.
3. Social benefits related to burial.

Alimony: are there any restrictions?

If we talk about wages, we can recall Article 138 of the Labor Code of the Russian Federation, which states: “the total amount of all deductions for each payment of wages cannot exceed 20 percent, and in cases provided for by federal laws, 50 percent of wages due to the employee.” .

A discrepancy arises here, because child support for three or more children reaches 50%, and in certain situations, considered individually, can reach 70%.

The answer lies in the same Article 138 of the Labor Code: “The restrictions established by this article do not apply to deductions from wages when collecting alimony for minor children.”

It follows that payments for the maintenance of children from the first part of the salary are collected without any special restrictions. Their size is regulated by a settlement agreement or a court decision.

Alimony: types of payments, methods of deductions and nuances

1. Alimony in kind. In this situation, alimony from salary advance cannot be considered, since the in-kind form was chosen. The amount of payments in this case is directly dependent on the prices of specific property at the time of its transfer to the person paying alimony.
2. Deductions from temporary disability benefits.

   According to the law, the deduction for alimony in this case is of a general nature. Alimony is collected from payments for temporary disability, unemployment and other types of income.

3. Part-time work and obligations.

   Wages from a part-time job are included in the total income of the alimony payer, therefore, alimony from advance wages is calculated according to the standard scheme in accordance with the requirements of a court decision, writ of execution or agreement.

4. Vacation accruals and periods without pay. Alimony from vacation money is deducted in accordance with the general procedure.

   If the leave was taken by the alimony payer for several years at once, then alimony is not distributed over months, but comes in the form of a single payment. There is no deduction of alimony if there are no payments in a particular month.

5. Advance from salary. There are no legal mandatory conditions for withholding alimony from the advance payment.

   As stated in Article 109 of the Family Code of the Russian Federation, alimony should be paid monthly. Article 136 of the Labor Code of the Russian Federation states that salaries must be paid twice a month. Accordingly, alimony can be withheld at the end of the month from the second part of the money paid to the employee.

   Why do business managers in most cases not calculate alimony from advances: taxes are usually deducted at the end of the month, and alimony is paid from the money remaining after personal income tax withholding. An exception may be situations when the amount of alimony exceeds a third of the payer’s income. Then it makes sense to divide them by two.

Features of alimony deductions that are worth remembering:

• funds for the maintenance of children are collected from all incomes of citizens;
• the payment of alimony is preceded by a mandatory process of withholding personal income tax;
• recovery occurs in the amount/part/share ratio specified in the executive documents;
• The transfer of alimony payments is carried out no later than 3 days from the moment the alimony payer receives his salary.

Conclusion

To summarize the issue of alimony payments from salary advances, it is worth noting important points:

1. Collection specifically from an advance payment is not necessarily regulated by law. Article 109 of the Russian IC states that deductions are made at monthly intervals from wages or other income. An advance is part of the official salary from which deductions can be made. In practice, this is not always done; often the second part of the money paid to the employee is subject to collections for alimony. The procedure for withholding alimony payments, as mentioned earlier, involves the preliminary withholding of personal income tax. Therefore, it is more expedient to withhold alimony from the total amount of salary, rather than from part of it.
2. The last day of the outgoing month is considered the starting point for withholding personal income tax. The tax agent carries out this procedure once a month in the process of final calculations for all income of the employee/alimony payer. Consequently, it is more appropriate to calculate and withhold alimony at the end of the month based on the total amount of money.
3. The employer's obligation is to withhold alimony payments from all amounts constituting income. The main problem remains that with the simultaneous deduction of both tax and alimony from the advance payment to the employee, too little amount remains to be paid. For example, the salary is 30 thousand rubles. The employee pays child support for one minor. The advance amount is 12 thousand (40%). At the end of the month, personal income tax is calculated taking into account the standard tax deduction for child support (1,400 rubles):

1. (30000 – 1400) = 28600, of which 13% tax is 3718 rubles.
2. The following is the amount of alimony payments:
3. (30000 – 3718) x 25% = 6570.5 rubles.
4. As a result, at the end of the month the employee will receive:
5. 30000 – 3718 – 6570.5 – 12000 = 7711.5 rubles.
6. To ensure that the difference between the first and second parts of the salary is not so great, some employers practice withholding alimony payments twice a month.

The issue related to the deduction of funds for the maintenance of children from the first part of the salary remains controversial and ambiguous. It is decided individually, taking into account legal norms.

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Is alimony from salary advance withheld or not?

Kalinina Evgenia, economist by education and linguist by vocation. Editor-in-Chief of the Alimenty-urist.ru project. Has 11 years of experience working in various publications.

The obligation of parents to support minor children is enshrined in the Family Code. The law stipulates that financial assistance to offspring before they enter adulthood (up to 23 years of age) must be paid from their total income. But is alimony collected from the advance payment? In this article, we will try to understand the issue raised.

Is alimony from the advance payment at the place of employment withheld or not?

Whether they will make deductions from an advance at work, you need to figure it out. Considering that neither loss of ability to work nor imprisonment exempts you from fulfilling parental duties, it is important to understand from which category of income you can collect.

Government Decree No. 841 takes into account the types of profit taken into account when calculating:

• business income;
• wage;
• disability pension;
• labor pension;
• unemployment benefit.

1. Premium payments.
2. Additional sources of income (wages at a second job, part-time work).

Collection from advance payment, yes or no?

Under Article 109 of the RF IC, alimony is withheld every month.

Salary is the main source of income, which means that the requirement concerns it first and foremost. When an applicant is officially employed, the issue of deduction of payments is dealt with by the accounting department of the enterprise where he is employed. Collections are carried out on the basis of a writ of execution.

Attention! An accountant can make deductions for children only after receiving a writ of execution or a notarial agreement.

You should also read Art. 136 of the Labor Code, which stipulates the need to pay wages twice a month. Since the first part of the salary is the main income, a completely logical question arises: is there a deduction of alimony from the advance payment? If so, is this an obligation or a right of the organization?

On a note! There is no official designation of “advance” in the legislation. The law only states that assignments to children are made after taxes have been deducted.

Is it necessary to withhold alimony from the advance payment, popular points of view:

1. Advance receipts are part of the salary and they are added to alimony, as one of the contributions.
2. Child support is deducted at the end of the month from the remaining salary, after taxes have been collected. There is no need to transfer them from the advance payment in advance.

Is any statement true? Partly yes. To answer the main question, let us turn to additional legislative norms:

• Art. 99 of Law No. 229-FZ of October 2 stipulates that collections must be made after deducting personal income tax.
• Art. 223 of the Tax Code says that personal income tax deductions should go at the end of the month.

Thus, if child support is a percentage of the salary, then it should be withheld from the second part of the salary, after tax deductions. But, if this part of the income is not enough to pay off the debt, the organization can deduct a certain amount from the advance.

The size of child support deductions in the standard case can be 25-50% (depending on the number of offspring). Thus, already after deducting taxes, the amount of earnings allows you to withhold alimony only from your salary. They will take money from the advance if more than 50% is assigned, the maximum threshold is 70%, or there is a debt for a certain period.

If deductions are more than 50%, then withholding alimony from the advance payment is the only way out

Withholding alimony from an employee’s salary is the right and obligation of the employer; it is implemented on the basis of an agreement or a court order. Of course, it is more convenient for the accounting department to make deductions once during the reporting period and according to the rules, that is, at the end of the month after taxes have been deducted. But when fulfilling alimony obligations, the defendant may be assigned up to 70% of earnings.

For your information! More than 50% can be assigned if, in addition to helping three children, the spouse pays maintenance to his ex-wife or the children require increased maintenance due to illness, education, or other circumstances.

In this case, the following difficulties arise:

1. The amount is not enough to collect the debt.
2. The employee's salary will be paid once a month. There is a clear violation of Art. 136, which is stated in the Labor Code of the Russian Federation, which states that wages must be paid to the employee twice a month.

Since enforcement proceedings require covering all debts to the child, funds in the required amount must be collected from the payer. If the second part of the salary is not enough, then you will have to use an advance. In such a situation, the accountant must make all the calculations in advance. Most often, 40% of the monthly accruals go towards the advance, leaving 60% for the salary.

Attention! If assistance for children was withheld from the advance payment and even when paying wages, then this was required by the writ of execution received by the employer. This can be done, but is not always necessary.

So, we have sorted out the main issue, alimony can be deducted from any part of the salary, but we still have some nuances that require explanation. We'll talk about them below.

From what point on should alimony be withheld from advance payment of wages?

The legislation of the Russian Federation defines the need for financial support for a child. We have determined whether it is necessary to make deductions from the advance payment. Now let’s look at the situation when debt collection has to be carried out, when is it better to do it?

If a debt arose when a debtor was dismissed from one job and there was a break in his work activity, should the new employer collect it from his employee’s earnings? No, he should not do this, and does not have such a right.

Deductions can be made if there is an application for the collection of alimony and a writ of execution has been received from the bailiffs of the UV. For example, if an employee came to work in March, and the writ of execution was sent to the organization in April, then deductions can begin no earlier than April.

Attention! Even if the grounds for payment of alimony arose for the defendant over an impressive period, the employer does not have the right to make deductions before receiving a writ of execution. It is not permissible to withhold amounts for past stages later, only for the period from the moment the basis was received.

If there are obligations under several writs of execution?

Let’s assume a situation in which the defendant has to pay alimony debts and a penalty in the amount of 65% of earnings. In addition, he has a tax debt and the Federal Tax Service has a writ of execution to collect tax debts. How to hold?

Initially, you need to repay alimony in the amount indicated in the production sheet, only then it is permissible to write off other debts, including tax ones. But paying off all debts should not take more than 70% of income, after deducting personal income tax. Thus, no more than 5% will be spent on tax debts if 65% is written off for alimony.

Help for children if earnings come in kind?

Helping a child in kind is permitted. The payer can cover part of the assistance with food, things, and books. There is also the possibility of paying an employee or a landlord in kind, for example, grain or food.

So, the accounting department must take into account the defendant’s income in kind, but they must deduct debts from cash income in order to avoid difficulties.

On a note! No more than 20% of assistance to children can be provided in kind.

If payments are in a fixed amount, how to pay alimony?

In this case, the accountant is obliged to monitor indexation. If the rules for recalculating payments are not taken into account in the writ of execution, then the increase will be made on a general basis under the terms of Art. 102 No. 229-FZ.

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Is it necessary to withhold alimony from the advance payment?

Alimony is a mandatory priority payment. The retention procedure is regulated by a number of regulatory documents, where the Family Code occupies the main position. The employer who has received a writ of execution is obliged to develop an individual calculation mechanism, allowing for the possibility of collecting alimony from an advance payment. In this case, it is necessary to comply with all legal requirements.

Is alimony deducted from the advance payment?

Contents (click to open)

With regard to the advance, it is permissible to withhold alimony funds, since it is a component of wages - the main source of income received in the course of work.

Material maintenance is collected from types of income, the list of which is specified in Resolution of the PRF No. 841 (as amended).

Money, the payment of which is not documented, is not subject to withholding. The procedure for remuneration must be established by the employer’s local regulations. The lack of one or another type of income causes a number of controversial situations.

This rule is supported by the following list of legal sources:

• Labor Code of the Russian Federation (Articles 137-138);
• Family Code of the Russian Federation (section V);
• Federal Law No. 229;
• Decree of the Government of the Russian Federation No. 841.

The possibility of collecting alimony from an advance payment is related to Article 136 of the Labor Code of the Russian Federation, which requires mandatory payment of official earnings at least 2 times a month. Here the accounting department is faced with the procedure for withholding payments from different parts of the monthly income, which is not clearly provided for by law.

There are two opinions that have the right to exist:

• collection from the advance payment is an obligation, since alimony is calculated from all types of income;
• Withholding of alimony is carried out from the salary accrued for the month, regardless of the division and sequence of payments of its parts.

An employer faced with a similar issue should consider:

1. Federal Law “On Enforcement Proceedings” (Article 99), which does not provide for the word “advance”, but establishes an initial deduction - personal income tax.
2. The Tax Code of the Russian Federation (Article 223) confirms the procedure for withholding taxes at the end of the month, after which other obligations are collected.

Thus, alimony is deducted from monthly earnings. The sequence of payments (in full or in parts) does not matter.

If it is necessary to make phased deductions (from each accrued share of the salary), an application with the corresponding requirement is submitted to the accounting department at the place of employment of the alimony obligee.

To make a decision, the proportionality of payments and the actual state of affairs should be taken into account:

• the number of deductions during the month is determined by the employer;
• if the amount of material support exceeds the size of one part of the monthly salary, the advance payment will be collected. On the other hand, this fact implies a violation of Article 136 of the Labor Code of the Russian Federation - payment of wages at least 2 times a month.

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How to calculate the amount of deductions from an advance payment?

According to Article 109 of the RF IC, the withholding of funds in favor of a minor (disabled) child is carried out on the basis of:

These papers contain information about the volume of monetary obligations to be fulfilled. The amount of alimony agreed upon when signing an alimony agreement between the recipient and the alimony obligee should not be less than the amount expected in court proceedings.

In the absence of a written agreement, the parents involve the judicial authorities in the dispute. The procedure for determining the monthly withholding amount corresponds to the following indicators:

• 1 child – 25% of earnings;
• 2 children – 33%;
• 3 children or more – 50%.

The amount of alimony obligations is subject to change based on a court decision due to circumstances relevant to the case. The maximum is 70%. The procedure for calculating alimony in a fixed amount by the court involves the use of the minimum wage indicator in the formula, which is subject to indexation.

The current legislation provides for the payer's liability for non-payment of alimony in the form of a fine. The presence of intent in the unlawful actions of the alimony obligee entails the application of criminal liability measures.

The algorithm of actions when calculating alimony from an advance payment assumes the following conditions:

1. Withholding of funds is assumed by the employer’s internal documentation on the procedure for remuneration.
2. Official employment of the payer.
3. The amount of earnings is documented.

Collection of financial support in favor of a minor requires the accountant to comply with the sequence of stages of the process:

1. Registration of a writ of execution (court order, agreement) for the recovery of funds from earnings. The document belongs to the strict reporting group and is stored in a safe.
2. Sending a notification to the FSSP about receipt of a document (copy or original). The registration data of incoming correspondence and contact means of communication of the enterprise are indicated.
3. Accounting operations – calculation and deduction. The amount is set by the court or alimony agreement. The calculation uses the amount of the payer’s income remaining after deducting personal income tax. Retention occurs every month.
4. Providing alimony to the recipient. Shipping methods:
   • bank transfer;
   • mailing;
   • transfer to a plastic card (account details required).

   The accountant draws up a payment slip, indicating:

   • payer data;
   • details of the writ of execution;
   • purpose of payment;
   • for what period of collection?

   The commission fee for transfer services is borne by the debtor. The amount provided for by the executive document is transferred to the recipient by the enterprise's accountant within 3 days from the date of calculation of wages. Neglect of established deadlines is grounds for prosecution.

5. Return of the writ of execution to the FSSP in the following cases:

Example of withholding alimony when receiving an advance

An employee of Stal LLC Malyshev A.A. receives a monthly advance on the 23rd - 50% of the salary, the second half of the salary - on the 6th. Salary – 60 thousand rubles and bonus – 7 thousand. Alimony obligations are assigned in favor of 1 child and amount to 25% of the official income each month.

Calculation procedure:

1. Total earnings: 60,000 + 7000 = 67,000 rubles.
2. Personal income tax: 67,000 * 13% = 8,710 rubles.
3. Amount used in the formula for calculating alimony: 67,000 – 8710 = 58,290 rubles.
4. Amount of alimony withholding: 58,290 * 25% = 14,572.5 rubles.
5. Advance: (60,000/2) - (60,000/2)*13% = 26,100 rub.
6. The second part of the salary: ((60,000/2)+7000) - ((60,000/2)+7000)*13% = 32,190 rubles.

The total amount of the second part of the earnings is enough to fulfill the monthly alimony obligation. No deduction is required from the advance payment.

What to do when the recovery rate is high?

The legislator provides for the possibility of collecting up to 70% of the income of the alimony obligee in the following cases:

• alimony debt. Of particular importance is the reason for the accumulation of debt;
• the presence of 3 or more minor dependents, one of whom is recognized as disabled.

If you make all deductions at the end of the month, then the following situation arises:

• the payment amount does not cover the amount of alimony obligations;
• violation of labor law in terms of receiving wages at least 2 times a month.

If there are several executive documents

The Federal Law “On Enforcement Proceedings” determined the priority of alimony payments and debt repayment for these obligations. The amount of income used in calculating alimony is the total balance after deducting personal income tax. The sequence and rate of mandatory payment are regulated by the Tax Code of the Russian Federation.

If there are several writs of execution, obligations are fulfilled in the following order:

1. Alimony, payments for damages (material, moral).
2. Penalties.
3. Other.

The material requirements of the next stage are satisfied after the previous one is repaid.

Retention over the years

The employer does not have the right to collect debt for past periods. The FSSP repeatedly explains about the beginning of the procedure for withholding funds from wages from the moment of receipt of the writ of execution (indication of the month). Otherwise, the employer’s actions will be regarded as an offense.

Arbitrage practice

In civil proceedings, the most common disputes are about the collection of alimony. Most proceedings fall under the jurisdiction of the magistrate. Institutions of higher authorities are considering issues with a list of requirements of a different nature.

The legal basis is the Family Code of the Russian Federation; the Civil Procedure Code of the Russian Federation, Federal Law No. 229, and the Tax Code of the Russian Federation are devoted to the peculiarities of the process. The explanations of the RF Armed Forces, international conventions, and the practice of the European Court are taken into account.

As practice shows, the rights of a minor are paramount.
Child support is assigned with maximum objectivity in relation to the needs of the child. The balance of interests is also important. As a rule, the court decision contains the amount of the monthly financial benefit and does not imply specifics about the withholding procedure. Case study:

The court ordered citizen V.T. Moskalev to pay alimony for a child from his first marriage - 1/4 of his official income, and a similar amount for his second child. When the 3rd was born, V.T. Moskalev made several late payments, as a result of which a debt arose.

The ex-wives filed writs of execution at the place of employment of the alimony obligee for the purpose of forced deduction.

• The man decided to reduce the amount of alimony by filing a corresponding statement of claim, citing the fact that he was completely deprived of part of his earnings and received a salary once a month, which is contrary to labor legislation.
• The judge refused to satisfy the plaintiff's request due to the lack of evidence of the impossibility of supporting minor children from his first and second marriage, and ordered the employer to eliminate violations in the procedure for withholding funds (to make proportionate collections from both the advance payment and wages).

A lawyer’s answers to questions about withholding alimony from an advance payment

How to withhold alimony in the amount of 70% when the advance payment is 40%?

In this case, it is necessary to calculate the amount of deductions and proportionally distribute them from payments accrued as wages. Otherwise, the employer will face a problem:

• violation of the requirement of Article 136 of the Labor Code of the Russian Federation to pay wages at least 2 times a month;
• the payment does not cover the amount of alimony.

Is child support paid once or twice a month?

The answer depends on the amount of deduction and the proportionality of the advance with the rest of the salary. Article 109 of the RF IC defines a monthly procedure without the obligation to carry out collection more than once.

The need for double withholding is due to the impossibility of fulfilling the alimony obligation at the expense of one part of the earnings due to insufficient funds.

Is it possible to withhold an advance payment as alimony debt?

In any case, full deduction of the advance payment is impossible, since these actions violate the labor rights of the alimony obligee. Collection of funds is carried out according to the preliminary calculation of the accountant, taking into account the specifics of the case and the remuneration system.

Is it legal for the accounting department to collect from advance payments and wages to a greater extent than established by the court?

The accounting department is obliged to withhold the amount strictly specified by the executive document. By withdrawing more, the accountant breaks the law.

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Author of the article

Lawyer. The main area of ​​activity is family law. I take an active part in courts as a representative.

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Is it necessary to withhold alimony from an advance payment - theory and practice

Amount of alimony

29.12.2017

18.2 thousand

12.2 thousand

7 min.

The issue of collecting alimony from an advance payment is quite relevant and is more practical in nature than theoretical. Inexperienced accountants face a difficult situation, especially in cases where large percentages are deducted. Let's try to understand the issue.

In search of an answer, one legal act is not enough; it is necessary to involve several. First, about the procedure for withholding alimony: Article 109 of the Insurance Code indicates that deductions from income are made every month.

This has a direct bearing on wages, the main source of profit for those associated with the employer through labor relations. Misunderstandings arise due to Art.

136 of the Labor Code, which states that wages must be paid at least twice a month.

The question arises: is it the responsibility of the accountant or his right to withhold alimony from the advance payment? Or maybe the advance payment shouldn’t be touched at all? It is impossible to give a definite answer. There are two points of view, and each of them, in its own way, is correct.

It can be argued that alimony should be paid from all income, even from the advance. On the other hand, salary is the monthly remuneration for work. It is divided into two parts, but deductions should be made once from the total amount.

No point of view can claim absolute truth. Let's see what is said in other legislative acts related to the issue under consideration. Federal Law-229, Art.

99 indicates that any recovery from profits is made after deduction of income tax, which currently amounts to 13%. There is not a word about advances in this article of the Federal Law, as well as in the legislation in general.

This term exists in everyday life, and laws operate with the concept of wages.

In the Tax Code, art. 223 states that personal income tax is withheld based on monthly salary. His last day is considered the time of receipt of income, as stated in the same article of the Tax Code.

Therefore, the prepayment cannot be considered income in itself, but only together with the second part of the salary.

It follows that the organization is not obliged to immediately remit tax on the advance payment, nor to make other deductions.

Alimony is calculated from the salary remaining after tax has been deducted. Speaking purely theoretically, it is at this time that all necessary funds, including alimony payments, should be withheld. But this is theory, and practice often requires a different approach.

So, tax is withheld from the entire monthly salary, and alimony payments are deducted from the remaining amount. But let’s imagine a situation that occurs in life, although not so often. The alimony payer should be paid monthly a large percentage of the profit: 50% or even a maximum of 70%.

It is possible that the deduction is made according to several executive documents. And when the time comes to pay the second part of the salary, it may turn out that there is not enough money. Then, involuntarily, the payer may become a debtor, and the employer will violate Art. 136 of the Labor Code, which talks about paying wages twice a month.

To avoid such a situation, the accounting department must first assess the amount of mandatory deductions.

Then there are two possible resolution options: reduce the amount of the advance or make a partial deduction from the first half of the salary. The employee should be notified about the chosen option and reflected in the accounting procedure.

We see that deduction from the advance payment is sometimes simply inevitable, but more often it is not necessary.

Let's give an example of such a situation and ways to resolve it. Let’s assume that an employee’s salary is 25,000 rubles, which he is paid twice a month: 10,000 and 15,000.

Nothing is withheld from the first payment - neither personal income tax, nor deductions under executive documents, to which the accounting department has every right in accordance with the law.

At the end of the month, 13% of the tax is withheld, which is 3,250 rubles.

The net salary is 21,750 rubles, of which 70% must be calculated according to executive documents, which is expressed in the amount of 15,225 rubles. But 10,000 in advance has already been paid, only 11,750 rubles remain.

It turns out that the employee still owes 3,475 rubles, which will go into debt with subsequent fines. There is a violation of Article 136 of the Labor Code.

But if the size of the advance payment is reduced, for example, to 3 thousand, then it will be enough to support the children and receive a salary of 3525 rubles, and together 6525.

Let's see what happens if you count alimony twice. The advance payment is 10,000, tax, according to the rules, is not withheld. Alimony of 7,000 rubles is paid out of it, and 3,000 is given to the employee.

Based on the results of the month's work, the remaining amount is issued. Out of 25,000, personal income tax is deducted - 3,250 rubles. After deducting 10 thousand advance payment, 11,750 rubles remain. Alimony maintenance is 8225 rubles, the employee receives 3525 rubles.

There is no debt, the salary, albeit small, is paid 2 times a month.

A difficult situation to resolve arises when the accounting department receives several writs of execution to replenish various budgets. For example, an employee’s obligations for alimony payments are 70%. The actual alimony, debt and penalty are withheld from him. He also has not paid his taxes, and already has a writ of execution from the Federal Tax Service.

Alimony, according to the law, is one of the priority deductions. Consequently, deductions under other writs of execution are made only after alimony payment.

If the remaining amount is not enough, the amount of recovery under enforcement documents not related to alimony is reduced. This is a forced step if the accounting department did not provide for such an option and did not deduct the first part of the salary.

In such a situation, charges from the advance payment are inevitable. There is no other way out: it is prohibited to withhold more than 70% of your earnings.

Sometimes a situation arises when calculating alimony from an advance payment is not only possible, but also necessary.

Suppose the accountant knows that after the advance payment the employee will not have any earnings: for example, he is planning a vacation without pay.

Under such circumstances, deduction from the advance payment for alimony is mandatory, otherwise the payment will be late. The employer and accountant face a fine - Art. 17.14, clause 3 of the Administrative Code.

The law does not prohibit the withholding of alimony from the advance payment, but it does not oblige it to be done. It should be decided on a case-by-case basis in order to protect the organization and the alimony payer from troubles and penalties.

For correct calculation, a number of sequential steps must be followed:

1. 1. Familiarize yourself with the employee’s income, which is subject to accounting when calculating alimony. This includes, with the exception of those provided for by Government Decree No. 841, 1996, cash income and payment in kind.
2. 2. View the amount indicated in the alimony withholding document. This may be a voluntary agreement of the parties, a writ of execution, or a court order. The amount is set as a percentage, a multiple of the cost of living, and is determined as a fixed amount.
3. 3. Withhold the required amount within the limits specified by law, observing the order in the presence of several writs of execution. Various situations are possible here, but in all circumstances, funds for the maintenance of the child are allocated first.

Alimony is calculated from payment in kind when the money is first received. Its cost is determined by the employment contract or regulatory act of the organization.

For example, if an employee uses lunch, then when calculating the monthly salary, their cost is calculated from it.

Alimony is withheld only from real income: if a person did not work, earnings were not saved, then not the full salary is taken into account, but the actual salary. In order not to create debt, it is recommended to carry out accruals from the advance payment.

We should not forget about the payer’s right to personal income tax benefits. They amount to 1,400 rubles for the first two children and 3 thousand for the subsequent ones. Benefits for disabled people are much higher: 6–12 thousand.

For registration, the employer is provided with copies of birth and divorce certificates.

If a contract at the place of work is not concluded for some reason, the right to payment of compensation by the tax service after a year is retained.

If the value is set as a percentage, no difficulties arise, but you should calculate whether it is necessary to deduct from the advance payment so that a debt does not arise. To calculate a multiple of the subsistence minimum, you should familiarize yourself with its value in the region. If it is not defined by a subject of the Federation, the indicator established for the country is applied.

The PM is often set after the end of the quarter, then if it increases, a recalculation should be made. You may have to make deductions from advance wages to ensure you receive your paycheck twice a month.

If the court has established a fixed amount that the ex-wife has demanded, you should familiarize yourself with the procedure for indexing it, specified in the writ of execution. The accountant’s task is to track the indexation time, after which the alimony amount increases. If the executive document does not contain special conditions, indexation is carried out on the basis of general rules: Federal Law-229, Art. 102.

You can deduct an amount limited by law from your salary. If there are not enough funds, a priority rule is used, where the maintenance of minors comes first. When only alimony is recoverable, the limit is 70%.

If there are other writs of execution, alimony does not exceed 50%, then they are calculated first, then other payments, but not more than 50% of the total profit.

If alimony payments exceed half of the earnings, they are accrued in full; the remaining funds go to cover other claims, in general no more than 70%.

If there is an application for payment on a voluntary basis, the limit may be 100% when the employee expresses such a desire in writing.

The advance and main part of the earnings is transferred to the recipient.

If, in addition to the application for voluntary payment, there are writs of execution, funds for them are withheld first in order of priority, and according to the application - last.

The number of alimony deductions per month is determined by the employer. If they exceed one of the two parts of the salary, a deduction from the advance payment is necessary.

Source: https://krugompravo.ru/alimenty/razmer-alimentov/nuzhno-li-uderzhivat-alimenty-s-avansa.html

Is it necessary to withhold alimony from the advance payment?

Advance alimony is payable, regardless of the debtor’s salary. Amounts can be collected from prepayments that were transferred for civil transactions - contracts, purchase and sale, lease of property, etc.

The Family Code of the Russian Federation and the Law on Enforcement Proceedings do not directly indicate the possibility of making deductions from an advance payment. There are no similar regulations in Government Resolution No. 841, adopted in 1996 and indicating a list of types of wages and other income from which alimony for minor children can be collected.

Financial support for children is subject to deduction from all salaries, including compensation, vacation pay and advance payments.

Before you find out whether alimony is withheld from the advance or not, you need to take into account that the write-off of funds depends on the specifics of the accounting department of the enterprise. What matters is the amount of financial support and the amount of debt incurred.

If alimony cannot be deducted in full from the main amount of the salary (pay), then part of the funds is deducted from the advance payment every month.

Deductions are also possible in another period when an alimony agreement was signed between the payer and the recipient.

The applicant has the right to contact the accounting department with a request to deduct amounts only from the basic salary, if the deduction amounts are sufficient for alimony payments. In any situation, alimony is withheld only after personal income tax (13%) has been deducted, unless the payer is considered a benefit recipient or has not filed a tax deduction at the place of work.

Grounds for withholding alimony from advance payment

Payments may be collected through a court order, judgment, or alimony agreement. A citizen also has the right to make contributions to the recipient independently - if the claimant has not gone to court and disputes about the financial support of a needy person are settled through negotiations.

If alimony from an advance payment and other payments must be collected by court order, then it is necessary to first apply for the document to the magistrate. The application is drawn up at the place of residence of the debtor or applicant.

The court order contains the following information:

• FULL NAME. the applicant;
• information about the citizen who is obliged to pay maintenance to the child;
• grounds for recovery - a court ruling on the child’s place of residence, actual place of residence with one of the parents;
• request to collect alimony as a share of the payer’s earnings;

Originals and copies of documents must be attached to the court order.

As originals, you must submit an extract from the house register confirming the place of registration of the child or another document on the basis of which it can be concluded that the child lives with one of the parents. You will need an original and a copy of your passport and other documents on the basis of which you can collect child support from the second parent.

In the application for the issuance of an order, you can indicate the place of work of the debtor, if it is known to the collector. The judge accepts the application for consideration, checks that it is filled out correctly and that the necessary documents are available.

Within 5 days from the date of acceptance of the document, the court issues a ruling to issue a court order in favor of the applicant or rejects the applicant.

This is possible when, based on the content of the application, it can be concluded that there is a dispute about the law.

Important! From the moment of receiving a copy of the court order, the debtor has 10 days to file objections to the document. If they go to court, the magistrate is obliged to cancel the order and recommend that the applicant file a statement of claim with the court.

After a court order is issued, alimony is collected from all types of wages of the debtor and most other additional income (if any). An advance is not considered an exception. If it is transferred to the card, the amount can be written off against the debt.

For example, the debtor has a salary of 38 thousand rubles (after deducting personal income tax). An advance in the amount of 10 thousand rubles was received on the card. The bailiff can write off this amount in full or in part - if there is arrears in child support.

If the advance is provided in cash, then the accounting department has the right to pre-deduct the amount, up to 70% by order of the bailiff.

Deductions can be made from the advance payment and the principal amount of earnings, depending on the share that is specified in the court order. For one child it is (Art.

81 of the RF IC) not less than 25% of the salary, for two - 33%, for three or more children - not less than half of the salary. But the court can adjust the size of the share taking into account the child’s real need for financial support.

Collection of financial support may be carried out by court decision. It is necessary when alimony is subject to deduction in a fixed amount. The amount of advance and basic salary does not matter.

The statement of claim must be drawn up in accordance with the rules specified in the Code of Civil Procedure of the Russian Federation, specified in Art. 131-132. The procedure is simplified when the claimant knows where the debtor works and whether he has other income from which alimony can be withheld.

The statement of claim is filed at the place of residence of the plaintiff or defendant.

The document should indicate:

• name of the court;
• information about the plaintiff - full name;
• information about the defendant;
• data about third parties if they take part in legal proceedings.
• the cost of the claim – if it is stated in court. Claims for alimony may be related to divorce and division of property.

The claim must be titled. The application should elaborate on the basis of the collection of alimony. If the claimant knows the place of work of the proposed payer, then this must also be indicated in the application.

The following documents will need to be attached to the claim:

• a copy of the applicant's passport;
• children's birth certificates;
• divorce certificate (if available);
• information about the child’s place of residence;
• information about the needs of the minor.

You can attach additional documents on which the applicant bases his legal claims to the payer.

The claim can also be brought by other needy family members - for example, disabled parents, family members of the debtor (disabled brother, sister, spouse or ex-spouse). Typically, alimony is awarded in the amount of the subsistence minimum for the child or half of it. The final decision on the amount of financial support is determined by the court.

Alimony from the advance payment can also be withheld in the case where the parties have agreed to sign an agreement on material support. The agreement may not stipulate from what income it is necessary to pay child support for the child and the other recipient.

The agreement itself has the force of an executive document. It is presented for collection at any time while the payer has an obligation to provide material support.

During enforcement proceedings, alimony may be deducted from the advance payment and basic salary.

Advance on civil transactions

The Civil Code of the Russian Federation provides for the possibility of drawing up a preliminary agreement, which may provide for the obligation to make an advance payment for goods, work, or services as an advance payment. The advance payment can also be transferred under the main agreement. If this amount is transferred to the counterparty, then a penalty in the form of alimony may also be imposed on it. By order of the bailiff, part of the advance payment or the entire amount is written off, depending on the size of the debt to the recipient of alimony.

To pay for alimony, property that was transferred to the debtor counterparty as an advance payment may be seized. Seizure is possible for construction materials, equipment and other goods. The debtor is first asked to repay the alimony debt, including taking into account the agreement with the claimant.

Methods of influencing the debtor

The bailiff considers the advance and other amounts as income that can be levied.

By resolution of an official, bank accounts, cards, deposits in microfinance organizations, credit and consumer cooperatives may be seized. The amounts are written off against the debt.

One-time transactions can also be seized, for example, an advance payment and the main remuneration under a paid services agreement.

Other methods of influencing the debtor are provided:

• restriction in the special right to drive a car, boat or other vehicle;
• The debtor may be prohibited from traveling abroad;
• Property in kind is confiscated - including vehicles, living quarters (if they are not the only place of residence for the debtor).

The claimant has the right to search for the property and income of the debtor independently and report their availability to the bailiff. The recipient of alimony and (or) his legal representative can monitor the progress of enforcement proceedings and receive clarifications from the bailiff, including in writing.

You can find out whether the alimony payer has a debt and its amount from the information presented on the FSSP website. But the information may differ from the actual debt. To obtain accurate information, it is recommended to contact the bailiff in person.

Illegal actions of an official must be appealed administratively and judicially.

The collection of alimony from the advance payment is therefore possible, along with other income, from which monetary deductions can be made in favor of the recipient of material support.

Question answer

Withholding of alimony is not made from an advance paid to an employee on account of wages.

Source: https://lawinfo24.ru/family/alimenty/alimenty-s-avansa

Advance alimony: is it withheld or not?

Alimony is paid for
the maintenance of a minor by one of the parents.
Most often, they are withheld from the father who does not live with the child.
According to legislative acts, payments are calculated from all income of the payer, with the exception of certain cases.
Therefore, the question often arises whether alimony is withheld from the advance payment , and how this happens.

General provisions on alimony

Decree
No. 841 of July 18, 1996 states that payments for the maintenance
of minors are transferred from such income as:

• wage
  ;
• bonuses;
• additional
  income;
• income
  , etc.

In accordance with Law
No. 229-FZ, alimony is not withheld from the following income:

• survivor pensions;
• payments for caring for disabled citizens;
• maternity benefits;
• reimbursement of travel expenses, etc.

According to labor legislation (Article 136), wages are paid to an employee at least 2 times a month.

At the same time, the amount of the advance is established by the internal rules of the enterprise. But its amount should not exceed 40% of earnings.

Legislative acts do not specifically stipulate whether alimony is withheld from the advance payment or not. It all depends on the amount of payments and accounting in the organization.

Agreement on payment of alimony. [14.65 KB]

How to withhold alimony from an advance payment

In Art. 109 of the Family Code states that payments for the maintenance of a minor are transferred to the parent with whom he lives on a monthly basis from his salary.

In most cases, alimony is paid once a month.

However, if the accounting department decides to transfer funds twice, each time when issuing parts of earnings, then this will not be a violation.

• In this regard , the question of whether alimony is withheld from the advance payment must be resolved in the organization of the enterprise.
• If payments are made under a voluntary agreement, then it may initially stipulate deductions twice a month.
• In the case where alimony is withheld according to a writ of execution, the decision remains with the organization’s accountant.
• The following points are taken into account:

• amount
  of deductions;
• amount of advance
  and salary;
• ratio
  of earnings and deductions.

It should be borne in mind that alimony is calculated only from “net” earnings. In other words, they are taken as a percentage of the amount that remains after personal income tax deductions.

In most cases, the advance is paid without deducting taxes.

Accordingly, when paying alimony twice a month and calculating it from your salary, this point must be taken into account.

Claim for alimony. [39.00 KB]

Amount of alimony

The amount of the allowance for
the maintenance of minors depends on the number of children (Article 81 of the RF IC).
It amounts to:

• 25% for one;
• 33% - two;
• 50% - for three or more children.

If the payer has a debt, then payments can reach up to 70% of wages.

This is taken into account when deducting alimony from advance payments and wages. It is necessary that both parts of the earnings are enough for transfers.

1. Thus, alimony from an advance salary is paid if the organization customarily pays what an employee earns in approximately equal parts.
2. This is especially true in cases where 70% of the debt is withheld from the employee.
3. In such situations, the accountant is recommended to calculate the entire amount that the employee will receive after deducting personal income tax and from it calculate the amount of alimony.
4. The benefit can be divided into two parts, one of which is paid in advance, the other with salary.
5. In accordance with the law, alimony must be transferred to the recipient’s account within 3 days after the payment of earnings to the organization.

Alimony 70 percent: in what cases will the court order.

Features of deduction of alimony from
advance payment

• The benefit is withheld if a writ of execution is sent to the accounting department of the enterprise.
• The employee himself can also write an application for the transfer of a certain amount of earnings under a voluntary agreement concluded with his ex-wife.
• Many employers are faced with the question of when to start transferring funds.

According to tax law, alimony from wages is withheld only from the moment the writ of execution was received.

The benefit is not accrued for previously made payments. Therefore, alimony from the advance payment will be withheld only in the month when the employer receives a confirming document.

The problem often arises for organizations that pay part of their earnings in kind (for example, in farms).

However, it cannot exceed 20% of wages. Russian legislation has not developed a clear practice for collecting alimony from earnings paid in kind.

Therefore, when calculating benefits for the maintenance of a minor, it is recommended that an accountant pay attention only to the wages received by the employee in cash and after deducting personal income tax.

If there is a writ of execution, the employer is obliged to promptly pay alimony from the employee’s earnings.

Otherwise, a fine of up to 100,000 rubles may be imposed on the organization. (Tax Code of the Russian Federation). If the organization provides for wage payments twice a month, then alimony can be withheld from each of them.

1. However, this is not the responsibility of the employer and remains at the discretion of the accounting department.
2. In this case, you should be guided by the amount paid in advance and salary.
3. If alimony is higher than one part of the salary paid, then it is necessary to withhold benefits from both the advance and the salary in order to cover the debt.
4. But the exact amount of the benefit is calculated only after personal income tax is withheld from the employee.

According to legislative acts (Article 207 of the Tax Code of the Russian Federation), the tax is paid at the end of the month. Therefore, the amount of payments transferred from the advance payment and salary may vary.

Child support: what percentage of salary.

Conclusion

 But in general, alimony must be received in full, in accordance with the writ of execution, which states the percentage of deductions to the alimony payer’s earnings, regardless of how many times a month he receives it.  

Source: https://pravasemei.ru/alimenty/alimenty-s-avansa/