Refusal of an apartment for alimony payments

The procedure for collecting alimony from property

According to the requirements of the law, a parent obliged by the court to support his child pays financial support once a month. Many people take this responsibility lightheartedly, but among them there are also citizens who find themselves in a difficult financial situation, which may be an obstacle to making monthly payments.

In this connection, alimony arrears arise, and quite often, in a very large amount. One of the options for solving this problem is to transfer the movable or immovable property of the debtor to pay alimony and repay the debt. This could be a home, a car, a plot of land, a summer house, a garage, etc.

Payment of alimony with property is possible in the following cases:

• the alimony debt will be repaid through the sale of the debtor's property
• transfer in kind to the claimant (legal representative of the child) of the property of the parent who does not pay child support

IMPORTANT : transfer of property for alimony can be carried out voluntarily or compulsorily by the bailiff service.

According to the law, property transferred into the ownership of a child can:

1. Pay off part of the alimony
2. Pay off alimony debt
3. Exempt the payer from paying alimony

One of the conditions for the transfer of property in such cases is the equivalence of the amount of alimony and the value of the property.

What kind of housing can be transferred as alimony?

Only the parent who has ownership rights to this property can transfer housing to a child as alimony.

• The apartment was purchased by the parent before the marriage. The second parent is not the owner of this property;
• The share of the apartment belongs to the parent, so he can easily transfer it to the child;
• If the parent has a deed of gift in his name, then he can officially give the apartment as alimony.
• If the apartment was inherited, the parent has full rights to it and can transfer the property to the child.

If the housing area is collateral for a mortgage, then the parent will be refused to transfer such housing.

What property cannot be taken to pay off alimony debt?

Not all property can be taken to pay off alimony debt:

• You cannot take away property if its value is significantly greater than the alimony
• They do not take away things necessary to meet the minimum household needs of the alimony debtor
• They do not take away items necessary for the debtor for work or professional activities
• You cannot take away things that compensate the debtor for health deficiencies, for example, a wheelchair, special exercise equipment for regular exercises necessary for the treatment of a disease, etc.
• You can find out other items that may be on the list of prohibited seizures from the debtor from our lawyer during a consultation, since the above is not exhaustive

What kind of housing can be used for alimony payments?

To dispose of a property, it is necessary to have ownership rights to it. The law provides for the possibility of transferring an apartment for financial support if it is owned by the alimony holder.

A citizen may transfer a property to a minor child that:

• purchased by him before marriage;
• purchased during marriage using personal funds;
• received under a gift agreement;
• received as an inheritance;
• was privatized.

Important! If a citizen is the owner of a share in a residential premises, then he can only dispose of this share. Parts belonging to other owners remain their property.

When selling housing owned by several citizens, the co-owners are given the right of first refusal. When transferring a share by agreement, the opinions of other owners are not taken into account.

Separately, it is necessary to consider the situation with the object under encumbrance. If the housing is mortgaged, seized for debt or pledged, then the citizen cannot dispose of it at his own discretion.

Can they take away an apartment for alimony?

If the property is the only place where the defendant can live, then the enforcement service has no right to collect the debt in this way.

The court cannot collect alimony in the form of an apartment or other property owned by the child. But, according to the provisions of the law, the payment of monetary assistance to a child in the form of living quarters: an apartment or a house is not prohibited. To do this, it is necessary to draw up an agreement with a notary, in which the housing will become the property of the child or the claimant, which will subsequently resolve unresolved issues regarding the payment of funds and the collection of debts for the payment of alimony.

The issue of transferring housing for alimony must be approached very carefully, since you may encounter an incorrect interpretation of the essence of the agreement and mistake it for a gift agreement, often for an agreement to improve the child’s residence. It is important to remember that transferring an apartment to a son or daughter under a gift agreement without stipulating special conditions does not terminate the parent’s child support obligations.

How to sue an apartment for alimony? The higher the alimony debt, the greater the chances of the ex-spouse suing for the apartment. The debt may include penalties and fines for failure to fulfill alimony obligations, as well as penalties for late payment of alimony. It is 0.5% for each day of the total amount. The penalty is collected in court.

If the amount of alimony debt approximately corresponds to the cost of the apartment, then you can contact the debtor to draw up an agreement or contact the bailiff service, who will foreclose on the apartment and sell it at auction. This procedure works well when the apartment is not the only home, and also when it is too large for the alimony debtor.

How to transfer an apartment to pay alimony

If parents want to resolve the issue voluntarily, then an agreement must be drawn up. However, you can get the payer’s apartment against his will. This is possible in the event of the formation of a large debt for material support.

The law provides for the following options for levying a debtor’s housing:

1. The property was seized and sold to pay off the debt. The debt is repaid using the proceeds.
2. The citizen sells the apartment himself. The funds received are transferred to the recipient.
3. The property is re-registered to the claimant. This requires the consent of the recipient.

Procedure

Let's consider the option of drawing up an agreement. First of all, it is necessary to pay attention that the amount under the agreement cannot be less than what the child will receive by court decision. Therefore, the parties must make calculations.

Procedure for drawing up a notarial agreement:

1. Conducting an assessment of residential premises.
2. Calculation of the amount of financial support until the child reaches adulthood.
3. Determining the procedure for transferring an apartment.
4. Preparation of documentation.
5. Drawing up a draft agreement.
6. Preparation of deed of gift.
7. Notarization of documents.
8. Registration of property rights.

Procedure

The law establishes the following types of assessment of residential premises:

1. Inventory. Determined by BTI. The cost does not take into account a number of important points (location of the apartment, availability of public transport stops near the house, infrastructure of the area). Therefore, the inventory value is very low. When drawing up an agreement, it is not advisable for the owner to use it.
2. Market. It is preferable to use market valuation. It is carried out by commercial organizations. To do this, you need to conclude an agreement. Initially, you need to clarify whether the organization has a license to carry out such work, as well as the inclusion of the appraiser in the SRO. The cost of the procedure in 2021 is from 3,000 rubles.

The calculation of the amount of child support required can be carried out by the parents themselves. However, it is necessary to prepare the settlement in writing for a notary.

The parties must determine the procedure for transferring the apartment. They should discuss:

• procedure for registering a deed of gift;
• the day the object is transferred for use to the child (according to the transfer and acceptance certificate);
• payment of compensation.

If the cost of the apartment is less than the amount of alimony payments, then the owner must pay the missing amount. If the object is worth more than the amount of material support, then the owner of the property can receive compensation. However, this is not necessary. The parent is not obliged to demand the missing amount from the child.

List of documents for execution of the agreement:

• civil passports of the parties;
• birth document of a minor;
• child’s passport (if available);
• an extract from the house register at the child’s place of residence;
• assessment report;
• title documentation for the apartment;
• extract from the Unified State Register of Real Estate.

The draft agreement is prepared by a notary. The parties have the right to prepare it themselves and involve a lawyer. However, payment for legal services of a notary is included in the price. Therefore, they will have to be paid in any case. Therefore, it is advisable to use it.

The apartment is transferred under a gift agreement. Since the recipient of the property is a minor, the agreement is subject to notarization. This requires additional costs.

At the time of notarization of the agreement and deed of gift, the mother and father must be present. The presence of a child is required if he has reached 14 years of age.

After signing the documents and notarization, it is necessary to register the ownership. To do this, you need to submit documents to Rosreestr.

Submitting an application is possible through the MFC or the Rosreestr website. The parties jointly appear at the authorized body and submit an application. The re-registration period takes from 7 to 14 days.

Sample agreement

The agreement must include the following information:

• Title of the document;
• date and place of registration;
• information about the alimony payer;
• information about the recipient of alimony;
• information about the child;
• information about the subject of the agreement (alimony);
• information about the crediting of the apartment against material security;
• information about the apartment (address, total and living area);
• procedure for transfer of rights;
• details of the parties and signatures.

Sample agreement on the offset of an apartment against material security

Agreement on offset of the apartment against alimony

Expenses

The procedure for drawing up an agreement requires certain costs.

Basic expenses

Notarial agreement on alimony with property

Property can be transferred by the owner voluntarily by drawing up a notarized agreement between the child's legal representative (this may be the second parent or the person to whom guardianship rights have been transferred) and the owner of the property.

IMPORTANT : certification of the agreement by a notary is required, otherwise the transaction will be declared invalid for violating the form of the agreement

When drawing up an agreement, parents must provide for all the terms of the agreement:

1. The payment of the amount of money provided for in the agreement must correspond to the amount that the child would receive under a court decision.
2. This calculation of the amount in the interests of both parties must be made independently before the child reaches adulthood.
3. The agreement specifies all the conditions confirming the transfer of housing into the ownership of the child or the claimant, with the further transfer of ownership and registration in the Unified State Register of Rights to Real Estate (in the case of transfer of real estate).
4. The agreement also provides a detailed description of the object transferred under the agreement. All relevant documents confirming the rights to residential premises are attached.

A notarized agreement on alimony with property is a procedure that allows you to save a lot of time. Compared to resolving a dispute in court, this agreement eliminates the need to collect a large number of documents, which ultimately has the same legal force as a forced recovery in accordance with a writ of execution.

Can alimony be paid with property?

The Family Code provides for the possibility of transferring housing to a child as one of the options for paying alimony. Property can be transferred by the owner:

• voluntarily, by drawing up a notarized agreement between the legal representative of the child (to whom guardianship rights have been transferred) and the owner of the property;
• based on a decision made by the judiciary (forcibly);

According to experts, the main problem when independently providing property to a child is the legal interpretation of the very concept of “alimony.” In the interpretation of the law, these are cash payments for maintenance. That is, with their help, the parent or legal representative must satisfy the vital needs of the child until he reaches adulthood. Among them: buying clothes, food, education and others. A transaction to transfer an apartment for alimony has many pitfalls, so drawing up a mutual agreement should be entrusted to a competent specialist who will take into account all the nuances of the transaction. If the case concerns the debtor, then after the decision to collect alimony is issued, the bailiffs carry out the procedure of seizing the existing property. At the end of the period allotted by law, it is sold at auction, and the profit received is transferred to pay off the debt.

In what cases can I refuse payments towards real estate?

1. The personal will of the parent to help the child with housing. When creating an agreement on the payment of alimony through the provision of property, first of all, the purpose of this provision must be respected - meeting the needs of the recipient for a long time. In the case of transfer of an apartment, the issue of whether the minor and his legal representative have a need for living space is important. If this entails additional expenses on the part of the recipient of “in-kind” alimony, then the notary may not approve the abandonment of the apartment in favor of the minor. The agreement must indicate:
   • detailed characteristics of the transferred property;

   transfer period;

2. rights (ownership or temporary use);

The agreement is certified by a notary and acquires the force of a writ of execution. Many people make the mistake of drawing up a gift deed for a child instead of an agreement. This procedure does not exclude the obligation to pay alimony.

3. Settlement of real estate against cash payments due to the lack of other financial resources. This option can be resorted to when a citizen has no other sources of income, while he does not shirk his responsibilities. The scheme is similar to the first point. However, there is no guarantee that a request for alimony payment will not be received again. Everything will depend on the value of the property and the amount accrued for the mandatory monthly payment. If, according to the conclusion of the appraisal company, the price of the alienated housing is equivalent to the alimony debt for the entire required period, then the obligations, after signing the agreement, will be considered fulfilled. When a source of income appears, the amount of alimony payments may change.

Is it possible to transfer a share in an apartment for alimony?

The law does not prohibit the transfer of a share of residential premises for the payment of alimony. In this case, the parents enter into a written agreement to transfer the share in the apartment into the ownership of the minor child.

An important feature when concluding a contract is the establishment of the price category of housing (the market value of the apartment). They can determine the cost of the apartment share themselves.

If they cannot reach an agreement, then they need to contact qualified appraisers who will conduct an assessment and draw up an appropriate conclusion, which will reflect a reasonable position indicating the amount of the residential premises. This conclusion can subsequently be used in court in case of a dispute. The agreement must specify who will be the owner of the share of the apartment; it is better to indicate that the owner will be the child and not the ex-spouse.

It is important to remember that if there is jointly acquired property between the spouses, then this fact does not apply to the child’s right of ownership of housing, since when the property is divided, each party owns ½ share of the housing and has nothing to do with alimony obligations.

Is it possible to give away an apartment as alimony?

The main provisions on the procedure for registering alimony and methods of paying them are set out in chapters 13-17 of the Family Code of the Russian Federation. Collections are carried out on the basis of:

1. Contracts or “agreements” regarding alimony. Parents pay maintenance on a voluntary basis, agreeing on the frequency of deductions, the amount of payments, and responsibility for failure to fulfill obligations. You can agree orally or document what has been said in a document certified by a notary. The second method is preferable, since the agreement, if properly executed, has the force of a writ of execution. It is by agreement that an apartment can be transferred to the child as alimony. Legal basis - Art. 104 of the RF IC, which states that alimony can be paid in a lump sum by providing property.
2. Court order. This order is called “forced”. To obtain documents you must go to court. Issuing a court order is a simplified way of filing penalties. To receive it, a woman must submit a corresponding application and receive a writ of execution 5 days later. The second party will be able to challenge the order within 10 days after receiving it.
3. Court decisions. If the parents do not agree, there are other interested parties (for example, the spouse has other minor children), the payer’s place of residence is unknown, payments are claimed through a claim proceeding. The procedure is longer and involves the participation of both parties in the trial.

The court cannot force the apartment to be transferred to pay for alimony. Payments are assigned:

• In a fixed amount of money, the amount of which is “tied” to the cost of living in the region of residence.
• As a percentage of income (Article 81 of the RF IC). The deduction share must be no less than ¼ for 1 child, 1/3 for two and ½ for 3 or more minors.

The transfer of real estate will be possible forcibly if the payer refuses to fulfill the obligations. Then the spouse will contact the FSSP, and the bailiff will calculate the amount of the debt. Based on clause 4 of Art. 69 of the Law “On Enforcement Proceedings” No. 229-FZ, penalties can be applied to the debtor’s property, including an apartment, if there are insufficient funds in cash accounts to repay the debt. To do this, you do not have to be the owner of the entire apartment. The share belonging to the draft dodger may be alienated to offset debts.

Basic principles of voluntary transfer of an apartment to a child

Not all parents can provide their child with a decent standard of living. The reason for this is an unstable financial situation, changes in social status, illness, and the appearance of other dependents. By transferring an apartment as alimony payment, the payer will be able to:

• provide the child with housing in advance;
• pay part of the alimony obligations “for the future”;
• cover debts.

When paying alimony with real estate, the equivalence of possible income and the cost of the apartment in monetary terms is important.

For example , if the child is 14 years old, there are 4 years left until the end of the withholding. At the moment, with my father’s salary amounting to 120 thousand rubles. , monthly deductions - 30 thousand rubles. For 4 years, the child could receive alimony in the amount of: 30 thousand rubles. x 48 months = 1440 thousand rubles. 1.5 million rubles as alimony , he will cover the amount of potential income and provide his son with housing. If, for example, an apartment is purchased for 1.2 million rubles. , a debt of 240 thousand rubles will remain. , which, by agreement of the parties, can be paid in a lump sum or divided over several years.

Consequences of paying alimony with property

Having received housing for alimony, many believe that alimony obligations have been terminated. But this opinion is erroneous. If the payment of alimony is established in a fixed sum of money, then with an increase in citizens' wages, the rights of the child will be violated, in this regard, the alimony claimant has the right to file a claim to increase the amount of alimony.

Only with a competent drafting of an agreement on the transfer of property in payment of alimony or alimony arrears and the corresponding value of the property, disputes between parents about child support can be stopped.

Share of the apartment towards alimony

According to family law, a share in an apartment can be transferred to pay for alimony. The simplest option is for the parents to sign an agreement, which will indicate that the share of the property is transferred to the child in exchange for the alimony due to him or a part thereof.

Before concluding such an agreement, you need to assess the real market value of the property. If the former spouses themselves cannot do this, then certified independent appraisers must be involved. They will issue a document indicating the amount and its justification. This document is evidence in case of legal proceedings.

It must be taken into account that the division of jointly acquired property does not constitute a transfer of part of it in favor of the child. The apartment is divided only between parents (most often in half). That is, the share that went to the spouse with whom the child lives does not affect the obligations of the second spouse to pay alimony.