Claim for alimony: structure, jurisdiction and attachments

Usually a person comes to look at the structure of a claim after an agreement on the payment of alimony has not been concluded or the other party is not performing it. They already have a marriage certificate or a divorce certificate, a child's birth certificate, sometimes income statements, and the question is what exactly to write in the application and what to attach to it. Whether the court accepts the document for proceedings without leaving it without movement depends on how accurately the details, claims and attachments are stated.

The article examines the mandatory elements of a claim, jurisdiction at the claimant's choice, the set of attachments, cases of recovery in a fixed sum of money, the calculation of the claim value, time limits for applying for arrears and typical mistakes when filing. Related claims that are often made in the same proceedings are also touched upon separately.

Claim for alimony: what this document is and when it is filed

A claim for the recovery of alimony is a written request to the court for the award of maintenance for a child or another family member, considered in claim proceedings with the parties summoned and evidence examined. The claim is filed where there is a dispute over a right: over the fact of the alimony obligation, its amount, period or arrears. The result is a court decision on the basis of which a writ of execution is issued.

A claim differs from an application for the issuance of a court order: the order is issued by a judge alone without a hearing on undisputed claims confirmed by documents. If the defendant objects, disputes paternity, conceals income, or alimony in a fixed sum of money is claimed, the claim procedure applies.

• undisputed claim for the recovery of alimony in shares of income
• existence of a dispute over the amount, the period or the very right to maintenance
• claim for alimony in a fixed sum of money
• dispute of paternity or maternity by the defendant
• need to recover arrears for a past period
• making claims together with other family disputes

Who may file a claim for alimony and in whose favour

A claim for the recovery of alimony is filed by the parent with whom the child lives, regardless of marriage. In the case of guardianship — by the guardian or curator, in an organisation — by the institution. For the maintenance of a spouse — by the spouse himself or herself or by his or her legal representative if he or she is incapacitated. By the guardianship and curatorship authority — if the parents do not maintain the child and protection of rights in another way is impossible.

Alimony is recovered in favour of the child and is received by the legal representative until majority, and under certain conditions — afterwards as well. The claim is filed by the parent or a person replacing them at the defendant's place of residence or at their own. For several children a separate claim is drawn up indicating each child and their age. The right to maintenance does not depend on need.

• documents confirming kinship or marriage: the child's birth certificate, the marriage certificate;
• a certificate confirming the family composition and the child's place of residence with the claimant;
• information on the defendant's income or documents confirming the absence of such information;
• medical documents confirming pregnancy, childcare or the spouse's need;
• calculation of the claim amount for each recipient;
• documents confirming the applicant's authority where the claim is filed by a guardian or the guardianship and trusteeship authority.

Structure of a maintenance claim: mandatory particulars

A maintenance claim consists of an introductory, a descriptive and a prayer part. The introductory part contains the name of the court, the details of the claimant and the defendant, information about the children, and a statement that the dispute does not fall within the category of cases considered in order proceedings. The descriptive part records the fact that maintenance has ceased, the amount of the defendant's income and the child's need. The prayer part formulates the request to recover maintenance in shares or in a fixed sum.

In the descriptive part it is sufficient to state that the defendant does not transfer funds, that there is no agreement, and that the child lives with the claimant. Information on the payer's income is confirmed by a certificate from the place of work or by data from the tax authorities' database. If the income is irregular, the court may determine a fixed sum.

• Name of the court and details of the parties: full name, IIN, addresses, contacts.
• Information about the children: full name, date of birth, place of residence.
• Grounds: absence of an agreement and the fact of non-performance of the maintenance obligation.
• Calculation: share of income or a fixed sum with justification.
• Request: to recover maintenance and to attach the documents.
• Attachments: copies of certificates, statements, the calculation.

The set of details depends on the method of recovery: shares or a fixed sum.

Where to file a claim for maintenance: court, alternative jurisdiction, state fee

Maintenance cases are heard by a court. As a general rule, a claim for recovery of maintenance is filed at the defendant's place of residence, but alternative jurisdiction applies: the claimant has the right to file at their own place of residence. This is convenient when the parent living with the child resides in another region and the payer is far away.

The application is filed in writing. Recovery of funds for a minor child is heard by a specialised interdistrict court for juvenile cases or a district court; recovery of maintenance for an adult family member with a disability or a spouse is heard by a district court. Filing is permitted through the court's registry, by post, or electronically with a confirmed electronic digital signature.

• name of the court to which the application is filed
• details of the claimant and the defendant, including IIN and addresses
• details of the child or other recipient of maintenance
• the claim for recovery of maintenance and its grounds
• list of attached documents
• confirmation that a copy of the claim was sent to the defendant

Attachments to a maintenance claim: which documents to attach

Documents confirming the right to maintenance and its amount are attached to a maintenance claim: marriage, child birth and divorce certificates, and where filing through a representative, a power of attorney.

Certificates of the defendant's income are needed when recovering a fixed sum or a fixed sum together with a share; a calculation of arrears is needed if maintenance was already awarded but not paid.

Copies of the attachments are prepared for the number of parties participating in the case, plus a copy of the claim for the court.

The composition of the package depends on the situation: for a second child, the birth certificate of the first is added; if the place of residence has changed, confirmation of the address. The claim form and sample application contain a list of attachments and serve as a checklist.

• marriage certificate and divorce certificate, if the marriage has been dissolved
• birth certificate of the child (children)
• certificates of the parties' income for the calculation period
• calculation of maintenance arrears, if any have arisen
• a duly certified power of attorney of the representative
• copies of the claim and appendices for each person participating in the case

Copies of documents are filed for each person participating in the case; originals are presented for the court's inspection.

The court assesses a claim by its content, not by the number of pages: the details, the claim and the supporting documents matter more than length.

Claim for maintenance in a fixed sum of money: when it is appropriate

A fixed sum of money is used when maintenance as a share of earnings is impossible or unfair: the payer's income is irregular, seasonal, in foreign currency or concealed. The basis is the provisions of the Code of the Republic of Kazakhstan on Marriage (Matrimony) and Family on the recovery of maintenance in a fixed sum of money: the court may determine the amount of maintenance as a fixed sum if this serves the interests of the child. In that case, a claim for maintenance in a fixed sum of money is prepared, rather than an application for a court order.

The fixed sum is set as a multiple of the subsistence minimum per child in force on the date of applying to the court and is subject to indexation. The claim must contain a calculation stating the multiple and the reasoning why a share of income is inapplicable. If the payer receives income in instalments in different currencies or works outside Kazakhstan, the fixed sum protects the child's interests from exchange rate fluctuations.

• Grounds for a fixed sum: irregular or seasonal income, income in kind or in foreign currency, absence of official earnings.
• Calculation as a multiple of the subsistence minimum per child, stating the date on which the indicator applies.
• Information on the income and property of both parties, family composition, and other dependants of the payer.
• Evidence of expenses on the child: medical documents, education contracts, receipts, certificates.
• A claim for indexation of the fixed sum and for the recovery of alimony for the future.
• A request to recover court costs from the defendant in the manner established by the Civil Procedure Code of the Republic of Kazakhstan.

Statement of claim for alimony and other claims: divorce, paternity, deprivation of rights

A single claim may combine several related claims if they concern the same child and fall within the jurisdiction of one court. Most often this is a claim for dissolution of marriage and recovery of alimony: dissolution is considered under contentious proceedings where there is a dispute over children or an objection by the spouse. The court simultaneously decides the question of the children's maintenance until they reach majority.

If the marriage is not registered or there is no record of the father, a claim for recognition of paternity and recovery of alimony is filed. Paternity is confirmed by evidence, including genetic testing, and alimony is recovered from the moment of applying to the court. Deprivation of parental rights does not release a parent from maintaining the child: alimony is retained.

• marriage certificate and child's birth certificate
• certificate of the defendant's income and family composition
• documents establishing paternity or expert examination
• copies of the statement of claim for each defendant
• document confirming payment of the state duty
• power of attorney of the representative, if the claim is not signed by the applicant personally

The value of a claim for alimony: how to calculate and state it in the application

The value of a claim for alimony is determined under the rules of the civil procedural legislation of the Republic of Kazakhstan and depends on whether the claim is made as a lump sum or periodically. For alimony for a minor child, the claimant is exempt from the state duty, so the value of the claim matters for drafting the application and for jurisdiction.

For periodic payments, the value of the claim is calculated on the basis of the aggregate of payments for one year ahead. For a lump-sum recovery, for example arrears for a past period or a fixed sum for the future, the entire sum recovered is included in the calculation. The period, the monthly payment amount and the total sum for the year are stated.

• the type of claim — alimony for the maintenance of a child, spouse or parent;
• the method of recovery — a share of income or a fixed monetary sum;
• the period for which the arrears are recovered;
• the monthly payment amount;
• the total sum for the year in the case of periodic payments;
• the total sum in the case of a lump-sum recovery.

Limitation period and recovery of alimony arrears

The limitation period does not apply to claims for the recovery of maintenance for a minor child for the current period: the right to maintenance exists continuously for as long as the child needs it. The position is different for arrears for a past period: if maintenance was not recovered and no agreement was concluded, it can be recovered only for the period preceding the application, within the limitation period. As a general rule, that period is three years, and it starts running from the moment when the entitled person learned of the infringement of the right.

To recover arrears arising through the fault of the payer, the entitled person files a claim for the recovery of maintenance arrears. If maintenance has already been awarded by a court or established by agreement, but payments are not being made, an application for calculation of maintenance arrears is prepared first: it is sent to the court enforcement officer handling the case. The court enforcement officer calculates the arrears on the basis of the amount of maintenance established by the court decision or agreement and taking into account information on the payer's income.

• a copy of the child's birth certificate
• a court decision or agreement on the payment of maintenance, if any
• a statement from the court enforcement officer calculating the arrears or a decision on calculation
• documents on the payer's income and place of work, if available
• documents confirming the application to the court enforcement officer and correspondence between the parties

Claim for maintenance: penalty, reduction, release from payment

To change the established amount, a claim for reduction of maintenance or a request for an increase is filed. The grounds are: a change in financial or family circumstances, other dependants, loss of employment. The application states the previous court decision or notarial agreement and the new circumstances, with documents. The review is considered by the same court under the rules of claim proceedings.

Delay gives the right to file a claim for the recovery of a penalty for maintenance: a calculation for each month, the period of delay, the payer's fault. If the arrears are confirmed, a claim for the recovery of the arrears and the penalty is filed. The application for the penalty supplements the court enforcement officer's calculation.

• a copy of the court decision or maintenance agreement
• birth certificates of the children and the marriage or divorce certificate
• statements of income, family composition and dependants
• calculation of the arrears and penalty indicating the period
• documents on a change in health or employment
• a receipt for payment of the state duty

Sample claim for maintenance: common mistakes and preparation for filing

A standard sample application for maintenance does not save you from mistakes made when filling it in formally. The claim states the parties' details, information about the children, the basis and the calculation; the recovery of maintenance must not be combined with the division of property or the recovery of a debt. The court leaves the claim without movement if the circumstances are not confirmed or the calculation does not correspond to the claimed share.

The list of attachments is selected for the specific request: documents on marriage and its dissolution, birth certificates of the children, a statement of income and family composition, calculation of the arrears. For additional expenses, documents on actual spending are needed; for the penalty, a calculation for each period of delay.

• Check the maintenance calculation against the attached statement of income and deductions;
• Attach documents on marriage, the birth of children, family composition and income;
• Prepare separately a calculation of the arrears and penalty broken down by period;
• Check whether incompatible claims have been included in one claim;
• Make sure that copies of the claim and attachments have been sent to the other party;
• Attach a document confirming payment of the state duty if the request is subject to payment.