Children will be balanced with creditors – Newspaper Kommersant No. 41 (7486) dated 03/13/2023

A citizen who owes money to creditors has the right to spend money on the maintenance of his child, even in the absence of a formal agreement on alimony with his ex-wife, the Supreme Court of the Russian Federation (SC) decided. The bankruptcy of a citizen does not cancel his parental responsibilities, although it requires a “reasonable balance between the interests of children and registered creditors.” Lawyers support the position but fear that debtors will use the alimony argument to strip assets.

On March 10, the Supreme Court published a decision on the dispute over the alimony of the bankrupt. As part of the bankruptcy of Vladimir Seregin (declared insolvent in June 2021), his financial manager challenged 17.86 million rubles. debtor’s payments in favor of his ex-wife Svetlana, made in 2017–2020. According to the manager, the citizen abused the right and harmed the interests of creditors.

In December 2021, the Moscow Arbitration Court satisfied the claim, rejecting the ex-wife’s argument that the money was “alimentary payments for the education and maintenance of their minor daughter.” The decision emphasized that no alimony agreement had been concluded, and that the ex-wife, according to the court, should have known about her husband’s financial difficulties and harm to his creditors. The appeal and the cassation supported this decision, specifying that the purpose of the payments was “a gift to a close relative” without indicating the payment of alimony (for more details, see Kommersant of January 18).

Svetlana Seregina complained to the Supreme Court, emphasizing that the courts did not examine the documents confirming the spending of funds, and the parent must support the child. The amount of payments, in her opinion, was not excessive and satisfied her daughter’s reasonable needs for material support. The case was referred to the Economic Collegium of the Armed Forces, which overturned the decisions of the courts.

The law obliges parents to support minor children, but they can “determine the order and form of this maintenance themselves,” the Supreme Court noted. At the time of payments, Svetlana Seregina, together with her child, lived separately from the debtor, which “suggests the inclusion in payments of amounts for the maintenance of her daughter.” Meanwhile, in the same period, the debtor stopped paying other debts, and spending money on the family “in excess of what is necessary for the maintenance of the child violates the rights of creditors.”

To determine a reasonable amount of funds for a child, the Supreme Court noted, it is necessary “to establish a balance between his interests and the interests of creditors.” According to the law, the amount of alimony is one third of earnings. The debtor has two children from different marriages who were minors during the period of disputed payments, that is, one-sixth for each. But the courts did not establish the amount of the debtor’s income and, accordingly, the amount of alimony. Another ex-wife of the debtor in December 2019 received a court decision approving child support in the amount of 150 thousand rubles. monthly. The second wife has the right to count on a “commensurate amount,” the Supreme Court recognized, considering the collection of payments to the bankruptcy estate against Svetlana Seregina without deduction of alimony illegal. The case has been remanded for retrial.

The decision of the Supreme Court will help debtors and their spouses “to defend the alimony paid on the eve of bankruptcy in the absence of a written agreement,” said Alexandra Alfimova, head of Savina Legal’s bankruptcy and restructuring practice. She sees the advantages of this position in the “obvious social orientation to protect the interests of children.” Yulia Ivanova, managing partner of the Yuko law firm, clarifies that children have priority over ordinary creditors in terms of monetary obligations, since maintenance claims are related to the first stage of repayment in bankruptcy.

But the most important task of the court here is to maintain a balance of interests, Ms. Ivanova emphasizes. If the amount paid to the ex-wife did not exceed the amount due to the child by law, there is “no violation of the rights of creditors,” Yulia Ivanova believes.

At the same time, Guskov & Associates partner Igor Guskov sees a problem in the court’s position: “The decision of the Supreme Court does not contain instructions on how, in the absence of agreements or court decisions, to distinguish alimony payments from an attempt to withdraw funds under the guise of noble goals.” “This, of course, creates risks of abuse, since the debtor, transferring money under donation agreements, can then refer to the fact that all this was alimony,” agrees Denis Krauyalis, junior partner of the Yakovlev and Partners legal group. According to Mr. Guskov, the courts will have to “carefully examine all the details so as not to put creditors in an unequal position.”

Ekaterina Volkova, Anna Zanina