Alimony from the sale of an apartment: judicial practice received by inheritance

During a divorce, one of the most pressing and sometimes painful issues is the issue of alimony obligations.

It becomes especially acute when dividing property. It’s good if the spouses divorced and resolved these issues by coming to a mutual agreement.

And if there is no agreement between them, then the topic of whether alimony is charged for the sale of an apartment can develop into a very serious problem, because in this case we are talking about very large sums.

Moreover, even if there is an agreement between the former spouses on financial support for children, this will not insure the alimony payer from the risk of receiving a letter from the bailiffs about the recovery of the amount from the sale of housing.

So is it necessary to pay alimony from the sale of an apartment? A controversial point in the question of whether it is necessary to pay alimony from the sale of an apartment is the issue of determining the source of the funds from which the withholding is made.

Is alimony paid from the sale of an apartment?

The Family Code prescribes collection both from the salary of the alimony payer and from other sources of income. The list of these incomes is established by law.

A large number of child support payers do not want to fulfill their responsibilities to their children. Therefore, bailiffs began to include among the income that must be taken into account when determining the amount of alimony the profit received by the debtor when selling his real estate.

Moreover, in real estate transactions, income can amount to millions of rubles, which means that the amount of deductions is very significant. Depending on the number of children, they vary from 25 to 50% of the cost of the sold property. How fair are the withholding data?

The parent who provides financial support to the children is paid alimony from the sale of the apartment when this transaction is recognized as a commercial activity. If he sold the apartment to buy a new home, this is a solution to the housing problem. Then you don't need to pay alimony.

Selling an apartment, in legal terms, is a change in the form of property.

Property (apartment) in kind becomes property in cash. The seller does not receive any profit from this transaction.

Summarizing all of the above, it should be emphasized once again: payment of alimony debt is not made from the sale of an apartment, since the proceeds from this transaction are not income.

If the court has ordered the payment of financial subsidies to children in a fixed amount, then deductions in the form of alimony from the profit from the sale of housing should not be made.

In what cases are they not paid?

If the court determines that a citizen sells his only home to purchase a new one, then this is not an economic activity for the purpose of enrichment. In this situation, the alimony provider should not make deductions.

If the property is not the only one, and after the transaction for its sale the parent received a profit, then this is recognized as economic activity. This is where alimony payments should be made when selling an apartment.

According to the family code, the father pays child support to provide them with decent maintenance. When the child's mother files a lawsuit against the father to withhold a sum of money from the income from his property transaction, this may be regarded as an attempt to enrich himself. The mother's court has the right to refuse to satisfy the claim.

Thus, if a real estate transaction is not recognized as commercial, there is no need to pay alimony. There is a good reason for this:

• the property sold is not a source of profit;
• payment of such alimony infringes on the rights of the alimony recipient;
• the amounts received through such deduction do not serve the purpose of providing children with necessities.

Disputes also arise when resolving issues when an apartment that has been transferred into ownership through a gift or inheritance transaction is sold. Deductions are made only from property that was purchased during the marriage period.

Alimony is not levied on a citizen’s property acquired before marriage, as well as property that the second spouse abandoned. Property that was donated or inherited, purchased with one's own money after an official separation, is also not subject to alimony taxation.

In what cases are they paid?

Based on the above, it can be noted that selling an apartment is not a profitable activity, not a means of enrichment. This is only a change in the form of ownership of personal property, which means that alimony deductions are not made from it.

If the alimony payer makes transactions with property that generate profit, then payment of alimony from the sale of the apartment must be made. For example:

1. After its acquisition, the apartment was renovated and equipped with technical equipment, furniture was installed and it was sold at a better price;
2. after purchasing the land, land surveying was carried out, new buildings were erected and individual land plots were sold along with the real estate;
3. The apartment is rented after purchase.

In such cases, when the purchase and sale of real estate is carried out to generate income, alimony will have to be paid. The amounts are calculated not from the entire cost of the property sold, but from the amount of profit received.

Various methods of collecting overdue obligations are applied to negligent ancestors. The debtor's property is subject to seizure.

But such a turn of events awaits him after the seizure of bank accounts and attempts to make deductions from his place of work. In the absence of such opportunities, the seized apartment due to debts is sold at auction.

The amount of the debt, as well as a penalty of 5% for each day of delay in payment, is transferred to the recipient of the payments. The remaining funds are returned to the former owner of the property.

If the apartment is the only home of the alimony payer who owes money to the children, they cannot sell it without his consent.

Apartment as alimony payment

The parent has the right to give the child’s ownership of the apartment instead of paying child support debts. In this case, he no longer has any alimony obligations. To do this, the parents must enter into an agreement stating that the father transfers the housing to the child instead of paying child support.

To summarize, we can state that the answer to the question of whether alimony is taken from the sale of an apartment is negative, since this transaction is not economically profitable.

If the sale of property becomes a source of profit for the alimony payer, then the answer to the question of whether alimony is paid from the sale of an apartment is affirmative.
Renting out real estate and selling it after renovation are ways to make a profit. Alimony penalties are subject to amounts received from the sale of housing that is not the parent’s only living space.

If he has several apartments, then the procedure for selling one of them is considered as a profitable activity.

The alimony payer may voluntarily transfer real estate into the ownership of his child as payment for parental obligations. If there is a debt, the property may be seized and sold to pay it off. But if the parent has the only such living space, then it is not possible to sell it and receive alimony from the sale of a share in the apartment.

Dear readers, the information in the article may be out of date, take advantage of a free consultation by calling: Moscow +7 (499) 288-73-46 , St. Petersburg +7 (812) 317-70-86 or ask a lawyer a question using the feedback form, located below.

Source: https://uristjournal.com/semejnoe-pravo/zaklyuchenie-i-rastorzhenie-braka/razvod/alimenty/s-prodazhi-kvartiry.html

Alimony from inheritance: is it paid in 2020?

The question of whether alimony is paid from an inheritance is relevant for the alimony payers themselves and for citizens applying for financial support. Indeed, any property is allowed to be used or sold in various ways to cover child support obligations to a minor child and the second parent. Inherited property fits well into this scheme.

Types of income from which alimony is paid

Almost all types of taxable income are subject to participation in alimony calculations and assessments. The lack of official earnings is not an obstacle to assigning alimony obligations. If in the first case they most often assign a percentage calculation of the amount of payments, then in the second - a fixed amount, taking into account the cost of living and the minimum wage in the region.

Among the types of earnings, only the salary part plus bonuses or interest that are paid officially are taken into account. Some social benefits from the state budget are added to the same income. The latter may appear as the only source of income, then the amount of alimony will be quite insignificant.

It doesn’t matter how the alleged alimony payer earns his living - it can be both mental and physical labor. A specific list of species is available in government decree No. 841. In this case, the maintenance of minor children is declared. Adults also have the right to express claims, but if they have a non-working disability group.

Main income categories:

• salary of the average citizen employed at the place of employment + bonuses provided for in the employment contract;
• income of individual entrepreneurs;
• allowances for military personnel (including those who resigned: one-time and monthly payments);
• earnings of convicted persons received in places of deprivation of liberty, minus deductions assigned to them by court decision;
• unemployment benefits (received through the labor exchange);
• pension payments;
• scholarships;
• monetary compensation from the federal and local budgets;
• receiving funds for the provision of real estate for rent.

It is not prohibited to use several sources of income of the future payer to calculate his obligations to the child (and possibly to the second spouse).

In this case, upon application to the court, periodic indexation of the initially assigned amount is carried out. Many parents are irresponsible in paying child support, thereby accumulating debt.

Both citizens themselves and their employers are responsible for this.

If the plaintiff understands in advance how to calculate the amount of alimony, he will be able to insist on a percentage calculation or a fixed payment. To do this, you need to know all of your opponent’s income.

Initially, it is believed that inheritance and alimony are concepts far from each other, but in fact, even existing or recently acquired real estate becomes the only or additional source of income.

When is an inheritance subject to alimony?

Any property can become a source of closure of alimony obligations. This becomes relevant in two cases: when parents voluntarily agree on such an offset, or when it turns out that the alimony payer owes a large amount of alimony and the bailiffs collect the citizen’s property to cover it.

Alimony and real estate

In order to accept an apartment or other real estate instead of permanent alimony, parents will have to conduct a bilateral transaction.

After settlement (the transaction of transferring property by gift), the recipient of the property writes a receipt stating that alimony obligations have been paid off and there are no claims against the former alimony payer.

To give the receipt significance, it is worth notarizing it.

The limitation for the sale of property is its singular nature among the owner. That is, if the housing is the only one and is used directly for living, then it will not be possible to sell it on the initiative of the bailiffs. However, if the footage is large, the debtor has the right to independently make an exchange, gaining funds to cancel the debt.

Read also: Postpartum payments: for the first child, for the second and third

Alimony and money from the account

In order not to offer the second parent, who is actually raising the child, the real estate directly, the newly-minted owner has the right to independently sell the property and give a one-time large sum of money (or put it in a bank account specially opened for the child).

It is worth considering that it is unlikely that you will be able to sell real estate if a person already has a very large alimony debt. In this case, the bailiffs may have time to initiate the arrest of the property that appears.

In another situation, the purchase and sale transaction may still take place and, if the parent is decent enough, he will be able to transfer the proceeds to the child one time or by making monthly debits from the account.

Withholding alimony when receiving an inheritance

Withholding for alimony is made to the child (and sometimes to the disabled ex-spouse) whenever possible. The emergence of an inheritance case, and then the execution of documents for property, is a reason for bailiffs to close the accumulated debt or a reason for increasing the monthly alimony amount to the second parent.

Types of collection of alimony from inheritance: pros and cons

The heir can transfer property as alimony payment only after he has completed the ownership documents. It will not be possible to do this earlier.

This negative point is relative, but nevertheless, temporary delays can last quite a long time, because...

The period for accepting an inheritance is calculated as a six-month delay, then courts and a period of paperwork may follow.

Let's consider whether the inheritance is subject to alimony and what are the types of its implementation:

• a bilateral decision of the parents (or other representatives of the child) on offset;
• recovery of property from the FSSP in connection with the accumulation of a large amount of debt by the alimony payer.

In addition, this method of offset is not encouraged by the court. That is, it is not directly considered in cases of alimony. Citizens in this case exercise their goodwill by donating real estate on the one hand and writing a receipt on the other. It is recommended to confirm this act with witness signatures and notarized registration of the document.

This way of paying off existing or potential debts can be extremely beneficial. In fact, a person who is called upon to pay alimony does not lose anything by giving the child the property of the testator that came to him by inheritance. This is not relevant if it is not difficult for the alimony payer to pay the required amount monthly for the maintenance of his son or daughter.

Arbitrage practice

In any case, the courts protect the rights of all citizens. Despite the fact that the bias towards unprotected minor children is obvious, modern legislation and Russian realities make it possible to minimize the amount of payments to your own child. It is worth noting that judicial practice often only provides for the determination of cash payments in a fixed equivalent or as a percentage of the salary.

Increase in alimony after receiving an inheritance

The amount of alimony may be increased if there is an actual improvement in the financial condition of the citizen. That is, at the time of the emergence of new property, he does not identify additional burdensome factors (or reasons for increasing costs). An example is the appointment of guardianship over a new dependent.

Under standard circumstances, an established heir can rent out the acquired housing, thereby improving his material well-being.

If he did not have time to take this step, then you can push him to file a claim for an increase in alimony. This situation works to the disadvantage of the alimony recipient himself.

If he acquires real estate through inheritance, the amount of alimony can be reduced.

In any case, all of the above actions can be fixed by mutual decision through the conclusion of a child support agreement (when there is no dispute between the parents).

A non-voluntary procedure implies the initiation of another trial with defending one’s position in the debate between the parties.

This increase is relevant both for a fixed payment method and for a percentage payment method (part of the salary).

Is it possible to withhold alimony from the sale of previously inherited real estate?

In principle, it does not matter when the property was inherited. Alimony from inheritance in the form of real estate is paid independently or collected through the court by the opponent. The interested party must take into account that alimony from an inheritance is an alternative method of payment and will have to be negotiated with the opposite party.

An aggravating factor in this case is, for example, the gift or sale of a share in the property to another person. In addition, the alimony payer can acquire more children and register them here. Due to this circumstance, it is unlikely that it will be possible to sell the previously received apartment and gain money.

Conclusion

The question of whether inheritance is income is positive in an indirect format. Real estate can theoretically generate additional income through rental or become a source of additional cash after its sale. An alternative option in the matter of closing alimony obligations is the transfer of the real estate itself into the ownership of the child.

It is allowed to pay alimony, ensuring the rights of minors, on inherited property. The initiator is often the direct payer of alimony. However, for this reason, the second parent with whom the child actually lives can also claim the inheritance.

The defaulter should remember that the answer to the question of whether alimony debts are inherited will be positive. Therefore, you should promptly seek relief from paying the debt and end all disputes with the second representative of the child. At the same time, inheritance and income are not at all opposite concepts. Money can be obtained through proper operation or sale of real estate.

Source: https://NasledoVed.ru/platyatsya-li-alimenty-s-nasledstva/

Alimony from inheritance

A parent obligated to pay child support must pay funds for the maintenance of a minor child, regardless of the procedure for collection from any type of income: by a court decision or at his own request. Current legislation does not provide for rules obliging the payment of alimony from an inheritance, but, on the contrary, indicates their impossibility. However, there are situations when you have to pay.

What types of income are alimony paid on?

Contents (click to open)

The types of income subject to the collection of alimony are regulated by Resolution of the PRF No. 841. The regulatory legal act contains detailed information about the types of earnings both at the main place of employment and part-time:

• salary;
• incentives:
• bonus;
• monetary gratitude;
• reward;
• compensation;
• profit accrued as a result of business activities;
• additional payments established by the wage system;
• vacation pay;
• fees;
• income from the sale of scientific and author's works;
• salary:
• government employees organs;
• persons in prison;
• investments;
• profit received from trading on the stock exchange;
• securities;
• payments under contractual obligations (real estate leases, other transactions);
• state benefits:
• on unemployment;
• disabled people;
• social payments;
• pensions;
• scholarships.

This list is closed.

The concept of “income” is enshrined in Article 41 of the Tax Code of the Russian Federation. As a rule, this is a benefit expressed in monetary units or in kind. Profit for individuals persons must meet tax requirements:

• form - money or property;
• assessment in volume;
• compliance with Chapter 23 of the Tax Code of the Russian Federation.

In accordance with paragraph 5 of Article 217 of the Tax Code of the Russian Federation, alimony is also considered income. Payments have individual characteristics:

• no taxation;
• are not subject to arrest;
• intended purpose is to support a minor child.

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Is inheritance subject to alimony?

Financial support in favor of minors is withheld from the income of the alimony obligee.

The inheritance is not subject to alimony obligations, since it is not included in the exhaustive list regulated by Resolution No. 841.

The document contains some inaccuracies in the wording regarding civil documents, but the fact of inheritance is not an agreement or transaction.

The legislator defined inheritance (Article 1110 of the Civil Code of the Russian Federation) as a transfer of property rights.

The impossibility of withholding alimony is due to the absence of a sign of regularity. And one of the foundations of income is consistency. In addition, receiving property free of charge does not always lead to enrichment. The inheritance estate may also contain debt obligations of the testator (an apartment with a mortgage requires repayment of mortgage payments, the same applies to a car on credit).

However, there are exceptions to the rules.

Alimony from inheritance in the form of real estate

The law does not provide for a provision for the collection of alimony from real estate received as an inheritance. Payments are made in cash equivalent. The availability of real estate cannot affect this process.

Funds received as a result of the sale of the inheritance mass are not considered types of income. The purchase and sale obliges the seller only to fulfill tax obligations to the state.

Collection of alimony is possible in exceptional cases. The type of property and the purpose of the sale play an important role.

Property received by inheritance
Action
Purpose
Result
Withholding alimony
Residential apartment Sale Purchasing a new apartment with the investment of personal funds to improve living conditions 1. Lack of profit.
2. Selling is not a way to make money (real estate agency).
3. Signs of property remain. No Car Sale Own needs Making a profit Yes

Each situation requires an individual approach. The procedure for paying alimony must maintain a balance of interests of all interested parties (recipient, payer). Of particular importance is the interpretation of the officials involved in the case:

• judges;
• FSSP employees;
• notary bodies.

If an unjustified decision is made, and the debtor does not take measures to appeal, then the unlawful collection is subject to execution.

Alimony from inheritance in the form of money in the account

Receipt of an inheritance in the form of a cash equivalent should not be taken into account by the alimony obligee when making material payments in favor of the child.

Inheritance cannot be considered regular income (earnings), which is subject to withholding in accordance with current legislation. In alimony legal relations, systematicity is one of the main factors. Therefore, no collection is made from money received one-time from the account.

When is alimony subject to withholding upon receipt of an inheritance?

There are situations when an heir liable for alimony pays alimony:

1. Voluntary fulfillment of obligations. We are talking about concluding an alimony agreement in notarial form, provided for by the norms of family law. The parties independently determine:
   • amount of payments;
   • frequency of fulfillment of obligations;
   • reasons and conditions for termination.

   By mutual agreement of the collector and the payer, other conditions are prescribed that do not contradict the legislation of the Russian Federation. At the same time, respecting the interests of all parties remains a priority.

   The fulfillment of the alimony obligation at the expense of the estate may be specified in the contract. The main thing is that payment of funds to a minor is voluntary.

2. Benefiting from inheritance, which contributes to obtaining a permanent income:
   • registration of rental relations for inheritance;
   • transfer to shares that generate profit (dividends);
   • use for earning money (cars for cargo transportation).

   The person liable for alimony enters into an inheritance, thereby improving his financial situation, which is a reason for the claimant to increase the amount of alimony obligations by initiating legal proceedings. In this case, automatic recalculation is not provided.

3. Presence of alimony debt. Based on the writ of execution, the FSSP has the right to withhold debt obligations from the debtor’s property, which is privately owned. Collection also applies to accounts in banking institutions.
   It is necessary to have a court decision regarding the possibility of deductions from the alimony obligee. The heirs of the alimony obligee must pay off the arrears of alimony payments. Determining the amount of debt requires the collector to comply with the following sequence of actions:
   • appeal to the FSSP;
   • provision of data on the death of the alimony obligee for correct calculation;
   • receipt of official paper with information about the volume of monetary obligations;
   • documentary evidence of lack of payments (extracts, witness statements).

   The heirs have the right to take measures to refute the data provided.

Read also: Paternity leave at the birth of a child in 2020

There are 2 ways to pay off debt:

1. Voluntary (peace negotiations).
2. Forcibly (consideration of claims in court).

The recipient of the alimony must wait the period allotted for entering into the inheritance - 6 months, after which the rights of the heirs are established. The distribution of obligations is carried out in proportion to the shares received. Based on the results of the trial, a decision is made to carry out certain actions.

Arbitrage practice

Disputes regarding the collection of alimony at the expense of the property estate occur in civil proceedings. The consideration of disputes falls within the competence of the magistrate's court, since the main requirement of the claimant is to increase the amount of alimony obligations. The documents regulating this issue include the RF IC, the RF Civil Code and the RF PP No. 841. The practice of the Supreme Court and international authorities is taken into account.

Each case involving inheritance law is unique. The court makes a decision with maximum objectivity, without violating the interests of the parties. Satisfaction of claims requires strong evidence. Recovery is carried out within the limits of the value of the property received as an inheritance.

An example of an increase in alimony as a result of receiving an inheritance

Citizen I.V. Kotov pays monthly alimony in favor of a minor in the amount of 5,000 rubles. By the tribunal's decision. The ex-wife, having learned about the receipt of an inheritance by the alimony recipient in the form of an apartment and a car, filed a claim to increase payments to 7,500 rubles. based on increased income. The payer does not agree with the claimant's demands.

The court, having studied the circumstances of the case, satisfied the claim in full. Reason: an inherited apartment is rented out, and the car is used for taxi services. The property mass became the subject of receiving regular income.

Is it possible to withhold alimony from the sale of real estate previously received by inheritance?

The possibility of retention is determined by the purpose of selling the property. Receiving net profit for your own needs involves a collection procedure. Making a decision falls within the competence of the court.

Conclusion

Alimony is a form of financial support for minor dependents. The deduction is made from the income of the alimony obligee. Property received as an inheritance does not have a sign of regularity and, as a general rule, is not subject to withholding. However, there are exceptions to the rules.

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Source: https://SocPrav.ru/alimenty-s-nasledstva

Is alimony paid from the sale of an apartment?

The legislative framework

The Family Code stipulates the only source of alimony is the income of the payer. Until recently, there was no mention of proceeds from the sale of real estate.

  However, after the 2015 edition of Government Resolution No. 841 of 1996, in the list of types of income from which alimony payments must be withdrawn, a clause appeared on contracts concluded in accordance with civil law (clause 2, subclause “o”), and the contract The purchase and sale of an apartment falls under this clause! However, there are different opinions on what is considered income from the sale of real estate:

• The entire amount received from the sale;
• The difference between the total amount spent on the purchase of a new home and the proceeds from the sale of the apartment (if the new real estate property turned out to be cheaper than the previous one);
• The entire amount, but only if the apartment is sold for another purpose, and not for the purchase of a new home.
• Proceeds from the sale of real estate cannot be considered income at all, because the payer's total assets do not increase (the apartment simply “turns” into a cash equivalent).

The Constitutional Court's ruling dated January 17, 2011 introduces another restriction on the collection of alimony from the sale of an apartment.

It lies in the fact that the payment of the share in support of minor children is relied upon only if the economic activity of the payer consists of the sale of apartments. This refers to a realtor for whom buying and selling real estate is his job.

In the same case, if a divorced citizen sells his only living space to buy a new one, no deductions should be made. However, here too in judicial practice there are different interpretations and heated discussions.

The problem is that the Constitutional Court did not specifically define what kind of income from the sale of apartments can be considered aimed at economic benefit, so the courts that hear disputes between tax payers and recipients interpret this concept themselves.

Arguments against payment

• When selling an apartment, a divorced citizen plans to purchase new housing, so he sells not for material gain, but for the subsequent purchase of a new property: an apartment or a cottage.
• The sale of real estate cannot be considered income, since the apartment is converted into money.
• Often, to purchase a new home, the money received for the sale of an existing apartment is not enough, so the alimony payer has to pay an impressive amount, and as a result, he remains in the red.
• After paying alimony from the amount received for the apartment, the payer will also be in the red because the remainder will not be able to purchase a worthy replacement for the existing housing, which means a deterioration in well-being.
• The share from the sale of an apartment transferred to the recipient of alimony will be too large to meet the main purpose of such payments, that is, the maintenance of minor children, and not enrichment.

When is child support withheld?

The share of proceeds from the sale of an apartment must be deducted in favor of the alimony recipient in the following cases:

• The market value of the apartment has increased due to pre-made renovations;
• After the purchase, the new owner does not live in the apartment, but rents it out.

Alimony cannot be deducted from apartment revenue in the following cases:

• The property was received by the payer by inheritance;
• The apartment was purchased before marriage;
• The property was acquired after a divorce;
• The property was received as a gift;
• The recipient of alimony waived his rights to this apartment in the manner prescribed by law.

Consider the following example of judicial practice.

1. Citizen Smirnov pays alimony in the amount of 25% of income, since his wife is raising their only minor child.
2. Smirnov is selling an apartment for 2.5 million rubles.
3. His ex-wife, citizen Smirnova, finds out about the sale and wants to receive alimony in favor of the child.
4. She submits an application to the bailiff to withhold the appropriate share of 25% of the proceeds from the sale.
5. The bailiff examines the Smirnovs’ case and comes to the conclusion that this transaction was a one-time transaction and carried out for the sake of improving the living conditions of the payer.
6. Consequently, this transaction is in no way connected with the economic activities of citizen Smirnova, and therefore does not allow citizen Smirnova to enrich herself from the proceeds.
7. Based on the information received and conclusions drawn, the bailiff refuses Smirnova’s application.

Apartment for debts

Separately, we should consider the case when the payer has a significant debt to the recipient of alimony. In this case, by court decision, he may lose his apartment to cover this debt.

If the debt is proportionate, the district bailiff department issues a certificate of debt, which is then presented to the court for further consideration of the possibility of repaying the debt by selling the apartment.

Debt collection is carried out from different sources of income in the following sequence:

1. Wage;
2. Cash in the bank;
3. Movable property;
4. Real estate.

In order to prevent the sale of his apartment to pay off the debt, the payer can appeal the decision to sell and the bailiff’s order in court, or urgently pay off the debt. During the entire consideration of this issue, the property is under arrest, which ensures its safety and does not allow transfer or sale.

The example below demonstrates how funds received from the sale of real estate can be transferred to the recipient of alimony in the event of arrears.

1. Citizen Pronin is obliged to pay alimony for the maintenance of a minor child.
2. He is unemployed, is not registered with the employment center and deliberately evades payment of alimony, as a result of which he has accumulated a debt of 114 thousand rubles.
3. Pronin sells the apartment and receives proceeds of 3 million rubles.
4. The funds received from the sale are in his bank account opened with Sberbank.
5. The bailiff, implementing the received writ of execution for debt collection, seizes Pronin's bank account for an amount equal to the debt to pay it off.

Alimony agreement

There are cases when spouses planning a divorce enter into an alimony agreement with a notary, which stipulates the following issues:

• Fixed amount of alimony;
• Terms and conditions of payment;
• Methods for repaying debt when it arises.

When drawing up such an agreement, the former spouses can include in it a condition on the calculation of alimony and the repayment of debt from future transactions from the sale of property of any type, be it movable or immovable. This stipulates either a fixed payment or a clear percentage of the proceeds (for example, the traditional amount of 25% for one child).

The following example will illustrate the drawing up of an alimony agreement in numbers:

1. The former Pechkin spouses enter into an alimony agreement in order to support their common minor daughter.
2. They add to the document a clause about a fixed cash payment in the amount of 7 thousand rubles, which should be calculated from Pechkin’s salary.
3. They also provided for the inclusion of a clause on the payment of a fixed amount of 10 thousand rubles from the proceeds from the sale of any property owned by Pechkin.

Conclusion

So, the issue of paying alimony from the proceeds received from the sale of an apartment is associated with many different interpretations.

Sometimes different lawyers have their own unique opinion on this matter, and in judicial practice there are cases that decide cases both in favor of the alimony payer and in favor of the recipient.

Therefore, if a divorced citizen plans to sell real estate, he should take into account the possibility that his ex-spouse will become aware of this transaction, and then, perhaps, the need to participate in legal proceedings will follow.

Source: https://legal03.ru/alimenty-s-prodazhi-kvartiry/

Alimony from a sold apartment received as an inheritance - Pravoved.RU

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Good evening. I would like to know whether it is necessary to pay alimony from the sale of an apartment received as an inheritance. I'll tell you in more detail. On May 25, 2012, the mother who owned the apartment died. The heirs were me, my brother and father.

My father refused the inheritance in favor of his brother, so now my share of the inheritance in the apartment is 1/3 and my brother’s is 2/3. My brother divorced his wife on December 14, 2012 and now pays child support.

At the moment, my brother and I decided to sell this apartment and we had a question: will we have to pay alimony from the proceeds from the sale?

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Good afternoon.

In accordance with Art.

82 of the RF IC and types of earnings and (or) other income that parents receive in rubles and (or) in foreign currency and from which alimony is withheld for minor children and determined by the Government of the Russian Federation - income from the sale of real estate is not subject to alimony collection. Those. Your brother will not pay child support from the income from the sale of the apartment.www.consultant.ru/popular/family/20_17.html#p710© ConsultantPlus, 1992-2014

The ruling of the Constitutional Court of the Russian Federation dated January 17, 2012 No. 122-О-О “On the complaint of citizen Vladimir Nikolaevich Gnilomedov about the violation of his constitutional rights by subparagraph “o” of paragraph 2 of the List of types of wages and other income from which alimony is withheld for minor children” should finally put

point in all disputes about the possibility of collecting alimony from the sale of an apartment and other real estate.

• The Constitutional Court explained that alimony is subject to withholding from the income received by the payer only after contracts concluded in accordance with civil law, by concluding which a person exercises everyone’s right to freely use their abilities and property for economic activities not prohibited by law, as well as the right to work (Article 34 , part 1; article
• 37, part 1 of the Constitution of the Russian Federation). That is, alimony for the sale of an apartment
• citizen, and he derives profit from transactions. If it’s just one-time transactions, and a person sold, for example, his only apartment in order to buy another, then alimony for the sale of the apartment is not
• are collected.

collected if the sale of real estate is an economic activity

Source: https://pravoved.ru/question/596840/

Is it necessary to pay alimony from the sale of an apartment in 2019: judicial practice

Payments for children are calculated not only from official wages, but also from other types of income. Therefore, many parents have to pay child support from the sale of an apartment. But there are situations when such income is not taken into account even by the court.

Do I need to pay

Alimony is collected from various types of income. The full list is specified in PP No. 841. Until 2008, profits from sold real estate were not taken into account when calculating alimony payments. But in 2008, a number of changes were made, due to which the calculation now takes into account income from:

1. copyright;
2. legal activities;
3. agreement concluded by an individual persons.

In theory, such a contract can also include purchase and sale. Another argument is an increase in the payer’s income by a certain amount from which payments can be recovered. But the entire amount received as a result of the sale of housing, in the opinion of the majority, cannot be taken into account when calculating alimony. After all, taxes must be paid on this money.

Many payers regard this situation as follows:

• income should take into account the full cost of housing;
• profit is the difference between the cost of real estate when buying a home and when selling it;
• if another living space was purchased with the proceeds, this amount cannot be counted as income.

None of these statements are true. From a legal point of view, if an apartment is the property of a person, then when it is sold, the property simply changes. The natural form of the object changes to the monetary form, so there can be no talk of any income. Alimony is also not deducted from tax deductions.

But the law leaves the final decision in this matter to the court. But the court can use income from the sale of housing when calculating alimony. His opinion on this matter is this:

1. The sale of real estate is taken into account if the payer has alimony debt.
2. The living space was bought for next to nothing and sold for several times more.
3. The alimony payer purchases living space and then rents it out.

Alimony is often withheld from such income by court decision. As for living space received by inheritance or as a gift, alimony is not taken into account from its sale. Moreover, the cost or whether the owner has debt is unimportant.

Arbitrage practice

If we look at actual court decisions on this issue, we can see that judicial practice is not always clear:

• Appeal decision of the Supreme Court of the Republic of Tatarstan dated October 7, 2013 (case No. 33-12144/2013). The plaintiff challenged the actions of the bailiff, who did not take into account the payer’s income from the sale of the land plot and residential building. But the court took into account the fact that in this case the sale of real estate is not a source of income. This means that the amount received cannot be taken into account when calculating alimony.
• Decision of the Volzhsky City Court of February 25, 2013 (case No. 2-1236/2013). The mother of a minor child demanded alimony from the income received by the payer as a result of the sale of a share of real estate. The court, as in the previous case, did not satisfy the claims.
• Decision of the Murmansk City Court of June 26, 2017 (case No. 23-1224/2017). The plaintiff’s demands included taking into account income from the sale of the payer’s apartment when calculating alimony. The plaintiff managed to convince the court that the sale of housing is a commercial activity of the defendant. This means that the income received as a result of these actions must be taken into account when calculating alimony payments.

When going to court, it should be taken into account that in most cases such profit cannot be regarded as full income of the payer.

Collection of alimony for an apartment

If there is a debt for alimony, the apartment can be recovered by a court decision or a decree of bailiffs. In this case, the property is seized, after which it is most often sold. The funds go towards paying off the alimony debt.

In this case, you need to take into account several important nuances:

1. The debtor's only home is not used for seizure and further sale. But if the payer has another living space, then one of them may be seized.
2. The property is being sold at auction at very low prices. Therefore, even if the property is seized, it is better for the debtor to try to repay the debt. For this purpose, a certain period is provided from the moment of arrest until the sale. Otherwise, it is unlikely that you will be able to receive even minimal compensation.

The sale of the debtor's apartment is often initiated by the alimony collector. To do this, he needs to contact the bailiffs with a statement.

Then everything is standard. Seizure of property is an official procedure consisting of several stages:

• First, the bailiff sends the payer a demand to repay the debt.
• In case of refusal to pay the debt, he issues an appropriate decision.
• Then the bailiff collects information about the debtor.
• Makes an arrest.

Information about whether the payer has the relevant property can be obtained from the recipient of alimony, as well as from government bodies (tax service, Rosreestr, etc.). The bailiff is authorized to submit various written requests and receive the necessary information.

During the seizure of property, an inventory must be drawn up:

1. Information about persons present.
2. List of property subject to seizure. If we are talking about living space, then the address, floor, area and other characteristics of the object are indicated.
3. Date and signature.

When the apartment is seized, the alimony collector may also be present. To prevent the sale of property, the debt must be paid after the seizure. It is necessary to take into account not only the principal amount of the debt, but also the penalty. According to Russian laws, for each day of delay, an additional 0.5% of the amount of debt is added.

If the owner of the property does not pay the debt within the period specified by the bailiffs, the apartment will be sold at auction.

The procedure is carried out exclusively officially with the help of the relevant organization (Rosimushchestvo). After the apartment has been sold, the money is transferred to the account of the alimony recipient.

The remaining funds are provided to the home owner. But, as a rule, this does not happen often.

Apartment as alimony payment

The law allows the use of expensive property for transfer as alimony. In this case, you can both pay off your existing debt and pay for future payments. The transfer order is as follows:

• The payer evaluates the living space that he is going to transfer.
• The parties draw up an agreement through which the transfer is carried out.
• A minor obtains ownership of the living space.

In this case, you can use the following housing:

1. Bought before marriage.
2. Gifted or inherited.

In other words, the living space must be owned by the payer. The value of the property should be approximately equal to the amount that must be paid to the person for alimony. Otherwise, the rights of the child will be violated.

The most important thing in this case is not only the consent of the child’s guardian from material claims, but also the execution of the transaction in writing. You can conclude either a gift agreement or an alimony agreement. As a rule, it is better to draw up an alimony agreement, since the deed of gift will have to indicate the purpose of the transfer of property. And this may call into question the gratuitousness of the document.

The agreement is drawn up by a notary, so his responsibilities include checking the documents provided. The contract must indicate:

• information about the parties (and the minor);
• subject of the agreement;
• cost (in numbers and words);
• the purpose of the agreement is to transfer the apartment as alimony;
• rights and obligations of the parties;
• liability for failure to fulfill obligations;
• date of;
• signatures.

You can download the alimony agreement by clicking the button below:

If the apartment is transferred as alimony in accordance with all the rules, then the guardian of a minor has no right to collect these payments in the future.

Let's sum it up

Alimony is collected from different types of income, including wages or business activities. But not all of the payer’s profit can be taken into account in the calculation.

This type of income is the sale of residential real estate. It will not be possible to recover these funds.

But the payer himself can use the money received to pay off a debt or make payments several months or years in advance.

If you want to find out how to solve your particular problem, please use the online consultant form below or call :

Source: https://pravovoiexpert.ru/alimenty/alimenty-s-prodazhi-kvartiry/