Responsibility for late payment of alimony

Home / Alimony / Violation of child rights: what are the consequences of failure to pay alimony?

Every person who evades payment of maintenance for their young children must remember the punishment provided for this type of offense. Today, legislation quite strictly protects the rights and interests of the child. In this regard, a large number of levers of influence on the defaulter have been developed. Some of them are milder, while others are more radical in nature (for example, imprisonment).

Alimony obligations of former spouses

For persons in a marital relationship or previously married, knowledge of legal regulation in 2 areas is of particular importance:

1. Maintenance of a minor child.
2. Alimony support for a spouse or ex-spouse.

Alimony for minor children

To put this briefly, alimony issues can be resolved in 2 ways:

• by means of an agreement;
• with the help of the court.

An alimony agreement is a written document, the parties to which are the future payer and the recipient of alimony. In most cases, the ex-husband acts as the payer, and the ex-wife acts as the recipient, representing the interests of minor children as their legal representative. The features of this agreement include:

• 
  mandatory notarization;

• the amount of material support must correspond to or be higher than the minimum conditions prescribed by law (81 article of the Family Code);
• there is no need to enforce the contract, since immediately after its conclusion it acquires the force of a writ of execution and can be accepted by the bailiff service for collection;
• prohibition on unilateral changes to the terms of the agreement;
• the ability to choose the method by which the obligated person will pay maintenance.

Security in the form of alimony can be demanded through the court if the person demanding alimony has the right to it, and an agreement on alimony has not been previously concluded. The standards establishing the amount of financial support for minor children are set out in the table.

Alimony for the maintenance of former spouses

Just as in the situation with minor children, issues regarding alimony that arise between spouses (former spouses) can be resolved:

1. With the help of an agreement.
2. Through the court.

As for the alimony agreement, the rules for concluding it, changing the terms or terminating it are the same for all cases, regardless of who the recipient is: a minor child or a spouse (former spouse). Within the limits provided by law, the parties have the right to independently determine the terms of the agreement, for example:

• method of payment of alimony benefits;
• benefit amount. The only limitation is that it cannot be less than the minimum size established by law;
• period of validity of the agreement;
• conditions for termination of the maintenance obligation.

The persons listed in the table below can request financial support through a judicial authority.

Consideration of an alimony case, by law, should not exceed a time period of more than 1 month and ends with the announcement of a decision to refuse alimony payments or award financial support, paid in a fixed amount every month.

Family law names the following as grounds for refusal of material support from a spouse (former spouse):

• short duration of stay in the marriage union. This issue is left to the discretion of the judge, since the law does not explain the concept of “short duration of stay”;
• unworthy behavior of an applicant for spousal maintenance. Misbehavior means insulting other family members, neglecting their interests, refusal to assume family responsibilities;
• the inability to work occurred due to the commission of a crime with direct intent, alcohol or drug abuse.

Features of attraction

The application of a fine for non-payment of alimony to alimony debtors has a number of features. Let's list them:

1. A fine is applied only when it is not possible to impose arrest or compulsory labor. In fact, it turns out that pregnant women, disabled people, military personnel, and employees of other law enforcement agencies, directly specified in the Code, are subject to fines. All others may be prescribed other measures above.
2. The fine applies only if a 2-month delay was committed by the debtor without good reason. If there are extenuating circumstances and the bailiff is presented with a document indicating them, the fine is not applied to the defaulter.
3. In case of non-payment of the fine, its size is doubled.

Determining the amount of debt

The exact amount of money that the alimony payer must transfer to the recipient in order to pay off the debt is calculated by the bailiff. In doing so, he is guided by the following rules:

1. 
   The basis for calculating the amount of alimony debt is the income of the obligated person during the delay. After determining the amount of earnings, the rules of Article 81 of the Family Code are applied, and the bailiff calculates the exact amount of alimony benefits.

2. If the payer did not work and did not have earnings, or worked and cannot document it, then the basis for calculation is the average salary in Russia at the time of delay in alimony payments.
3. If the alimony payer believes that the amount of financial support determined by the bailiff will become a heavy burden due to his illness, low earnings, maintenance of other dependents or due to the birth of a child, he can challenge the bailiff’s decision in court. The payer has the right to demand a recalculation of the alimony debt and the award of its payment in a fixed, constant amount.

In addition, the bailiff determines the period of time for which the debt must be collected from the alimony payer. The procedure for determining the deadline is written in the table.

Deadlines

The deadlines for this issue are as follows. The time during which the payer does not transfer funds to the claimant for alimony, which gives the right to apply a fine to the former, is 2 months. This period begins to run not from the moment the court makes a decision, not from the date the parties sign a voluntary agreement in a notary’s office, but precisely from the day the bailiffs open proceedings in the case. This is an important feature.

The period during which the debtor must be fined for failure to pay alimony is not specified in the law. In most cases, everything depends on the initiative of the claimant and the conscientious performance of their duties by the bailiffs. If the alimony claimant submits an application to the FSSP about violations committed by the payer in terms of payments, the bailiff in charge of the case cannot remain idle. Having ascertained that the other party has not made payments, he must perform the following procedure:

• issue a violation report;
• send it to court;
• notify the claimant during the conversation about the measures taken.

After the court makes a decision to impose a fine on the defaulter, he must not only pay the fine itself, but also all arrears in alimony due to his fault. As for the collection of penalties for late days on payments, the recipient independently resolves the issue by sending a claim to a judicial authority (). But before that, he must ask the bailiff for the exact amount of the debt.

Failure to pay child support for 2 months should be distinguished from malicious evasion by a person of payments to children. The following facts include malicious evasion:

• concealment by the payer of the real amount of income received by him;
• changing their place of residence in order to evade responsibility;
• refusal to work offered at the Employment Center if the payer is officially recognized as unemployed;
• failure to pay child support for six months in a row;
• failure of the payer to respond to measures taken, including in the form of a fine.

Responsibility for malicious evasion is much more serious, up to the initiation of a criminal case against the debtor.

Types of liability for alimony obligations

Withholding from the earnings of the alimony payer

Withholding may be carried out if 1 of 2 grounds are present:

1. A notarized alimony agreement concluded in full compliance with the law.
2. An executive document handed over to the recipient of alimony in court (writ of execution or court order).

These documents must be accompanied by an application, a sample of which can be viewed at this link, your own passport and a certificate issued for the child after his birth.

These papers are transferred to the organization where the payer works in the following ways:

• the recipient of alimony support personally gives the manager a package of documents. In addition, it is possible to send these papers by registered mail;
• the recipient transfers a copy of his own passport, a certificate for the child, a writ of execution and all known information about the payer to the bailiff service along with an application to open enforcement proceedings.

The accounting department, having received at its disposal a writ of execution or an alimony agreement, must act as follows:

• 
  calculate the amount of earnings of the alimony worker after deducting taxes from it;

• establish the principle for calculating alimony payments, described in the alimony agreement or writ of execution (a constant amount or percentage of income), and the frequency of deductions (every month, every quarter, every year);
• see if the amount of alimony support exceeds 50 percent of earnings, and in the case of paying maintenance for young children - 70 percent of earnings. If the amount of alimony is higher than required, then bring it to the maximum permissible value;
• alimony, transferred in a constant amount, is indexed with an increase or decrease in the size of the subsistence minimum;
• after carrying out the above actions, the money must be transferred by the accountant to the account specified in the claimant’s application within three days.

Liability in the form of penalties and other penalties

The law or contract refers to the amount of money that the alimony payer must transfer to the recipient in case of delay in payment of alimony benefits.

The differences between penalties and losses are that:

1. A penalty is a method of ensuring the fulfillment of an obligation to the recipient of alimony, and damages are real damage or lost profits of the recipient. Losses include, for example, the purchase by the recipient of a stroller for a young child at his own expense, when he (she) expected to purchase it with alimony awarded legally.
2. When claiming a penalty, the recipient does not have the obligation to collect evidence of property damage caused to him.

The recipient of financial support must take into account that penalties and other property sanctions can be collected only if the guilt of the alimony payer is established. Thus, if the delay occurred due to unlawful actions of third parties, for example, an employer delaying wages, an error by a bank employee who transferred alimony to another account, then sanctions cannot be imposed on the obligated person. If the payer refuses to cover the debt along with the penalty, the interested party can claim the debt in court and collect it with the help of the bailiff service.

It should be noted that if the court considers the amount of the penalty specified in the alimony agreement to be too high and disproportionate to the consequences of the violated agreement, it can reduce its amount.

Seizure of property

If earnings received from hired work, or income from investment or business are not enough to pay the monetary security, then alimony is withheld according to writs of execution by bailiffs from the following property:

1. First of all, money and other valuables held in accounts or deposits in banks or other credit institutions are recovered.
2. Secondly, if there is insufficient funds in banks and other credit institutions, any property belonging to the alimony payer is confiscated. The exception is property seized from circulation, such as firearms and drugs, as well as property that cannot be taken from the debtor.

Administrative responsibility

A parent who simultaneously:

1. Violates a court decision or alimony agreement.
2. Does not pay alimony in favor of minor children for 2 or more months from the date of commencement of enforcement proceedings.
3. Committed this offense for the first time.
4. There are no valid reasons justifying its non-payment. These include:
   payer's illness;
5. force majeure;
6. long business trip;
7. caring for a seriously ill loved one;
8. financial difficulties, for example, low income;
9. marital status, for example, financial support for other disabled dependents or the birth of a child.

The list of possible punishments that a parent may be subject to is as follows:

1. Compulsory work for a maximum period of 150 hours.
2. Arrest for a period of time from 10 to 15 days.
3. Fine equal to 20 thousand rubles.

Criminal liability

It occurs under the combination of the following conditions:

1. A parent does not transfer financial support to his minor children and, thereby, violates a court decision or alimony agreement.
2. Repeated offense. This means that the payer, within 1 year before the repeated violation, had already been convicted of failure to pay alimony and was subject to administrative punishment. In other words, one more administrative offense within 1 year will result in criminal penalties.
3. Valid reasons for non-payment have not been identified by government agencies involved in investigative actions. Possible valid reasons include:
   payer's illness;
4. force majeure;
5. long business trip;
6. caring for a seriously ill loved one;
7. financial difficulties, for example, low income;
8. marital status, for example, financial support for other disabled dependents or the birth of a child.

The types of penalties that a violator may be subject to are:

1. Correctional labor for up to 1 year.
2. Forced labor for up to 1 year.
3. Arrest up to 3 months.
4. Imprisonment for up to 1 year.

What is malicious evasion

It's time to figure out what malicious evasion of alimony payments is. This is generally considered to be a systematic, prolonged and deliberate refusal of a person to provide funds for the maintenance of a child (or parent). The signs characterizing the maliciousness of evasion are defined by the Methodological Recommendations of the FSSP No. 01-16 and paragraph 16 of the Plenum of the Armed Forces of the Russian Federation No. 44. The set of signs set out in them makes it possible to specifically determine what constitutes malicious evasion. These are, in particular:

• deliberate failure to pay money for a child over a long period of time;
• concealing your real income or property from which money can be recovered, providing false information about them;
• change of place of residence or work without notifying the FSSP;
• continued evasion even after the application of administrative punishment;
• the very fact of administrative or criminal punishment;
• the formation of alimony arrears through the fault of the alimony provider - the material “Alimony arrears” will tell you more about it.

Who is considered a “malicious draft dodger”

Thus, an unintentionally generated debt of 1-2 months does not make the alimony worker a malicious evader. Taking into account all of the above, we can definitely say that a persistent defaulter of alimony is a person who is obliged by a court decision to pay alimony and has the opportunity to pay it, but avoids fulfilling his obligation in every possible way.

We are talking about the presence of intent on the part of the parent, aimed at avoiding payment of money - that is, the deliberate nature of non-payment is the main sign qualifying malice. All other components characterizing the guilty behavior of a person (concealing income, changing jobs, and so on) are derivative.

But the presence of intent and actions aimed at evading the payment of alimony are not enough to qualify a person as an evader if the result is not achieved. Thus, among those who are considered malicious draft dodgers, only those who, as a result of their guilty behavior, managed to accumulate a significant alimony debt. Without a debt, no matter what the debtor does, he cannot be recognized as a defaulter.

Let's pay attention to one more point. Taking into account all the signs discussed above, a “malicious” evader can only be one who does not pay alimony according to a court decision - the nature of malice, apparently, does not apply to alimony agreements. This, however, does not mean that the evader cannot be brought to justice.

Grounds for exemption from payment of alimony debt

It should be clarified that the debt cannot be written off if:

1. The child in whose favor the maintenance was paid reached the age of eighteen and did not demand payment of the alimony debt.
2. The minor child died, and before his death the payer was already overdue for child support payments.

Arbitrage practice

The case was considered by the Derbent City Court of the Republic of Dagestan in July 2021.

The ex-wife filed a claim document with the court office with the following list of demands:

1. Determine the place of residence of 2 young children in residential premises belonging to her parents. According to the plaintiff, this must be done due to the fact that an agreement on children with her ex-husband was not concluded, and the defendant and mother-in-law, after the divorce, did not allow her to live with the children and took them with them.
2. Oblige the ex-husband to provide financial support to the children, namely 18,744 rubles. every month until adulthood.

The plaintiff explained in her statement that the children should be left with her, since in the house belonging to her grandparents, where she lives, there are conditions for the decent development of young children. In addition, children should not be separated, as this will cause them psychological trauma due to their strong attachment to each other.

At the first meeting, the representative of the ex-wife clarified the alimony requirements, asking the court to determine the amount of alimony allowance in the form of 1/2 of the subsistence minimum accepted in Dagestan for each child. The defendant did not come to court and did not present any objections to the claim. A representative from the guardianship authority explained that it was not possible to inspect the defendant’s house and determine the material and living conditions of his life, so the dispute about the children should be resolved at the discretion of the judge.

Having studied the materials of the case under consideration, the court decided:

1. Leave the children with their mother. This is due to the fact that the plaintiff has good material and living conditions for the life of her young children. Neighbors describe her positively. The children were interviewed in the courtroom by a qualified psychologist and expressed a desire to live with their mother.
2. Having evidence that the defendant does not have a stable income, it is more expedient to award alimony in a fixed, constant amount, which is equal to 0.5 of the subsistence minimum per child in Dagestan, and not as a percentage of income. This amount should be indexed depending on changes in the cost of living in the region.