Non-payment of alimony
Legal proceedings for non-payment of alimony are, unfortunately, very common.
The economic situation we have been going through in recent years has been the main reason. There are also cases in which the person obliged to pay them refuses for personal reasons.
If your ex-partner has stopped paying child support, you may be interested in reading to contemplate article 227 of the Penal Code.
What expenses are included in alimony?
We are going to differentiate between those expenses included and those that are not included in alimony.
The judicially established alimony includes the ordinary expenses necessary to support the children.
These ordinary expenses include, among others, food, decent housing, medical care, school expenses, personal belongings…
The person obliged to pay child support is the non-custodial parent. Even during vacation periods, when the children are in the company of the obligated parent, the latter must pay them.
The sentence will set the amount of alimony (ordinary expenses).
Expenses not included
Expenses not included in alimony are called extraordinary expenses.
Extraordinary expenses are those that cannot be foreseen at the time of issuing the judicial resolution.
Among others, extracurricular activities, medical expenses not included in insurance, support classes…
These extraordinary expenses are paid by both parents. The divorce decree will determine the percentage for which each parent is responsible, generally 50%.
But, equally, you can claim non-payment of the percentage that corresponds to your ex-partner if he or she does not do so.
Are there reasons that allow non-payment of alimony?
NO. The purpose of alimony is the well-being of the children.
When a court ruling imposes the payment of alimony, it is mandatory to do so, in any case.
It is common for the obligor to stop paying child support on the grounds that they are not allowed to see them. Other times, because they believe that the money is used by the custodial parent for personal expenses. Or also because your financial situation makes it difficult for you to make the payments.
These reasons do not allow the obligated parent to stop paying alimony.
Nor does the unemployment situation justify non-payment of child support.
In no case may the obligor take the law into his or her own hands.
However, you can request a modification of alimony in justified cases that you can prove (for example, unemployment).
What can I do in case of non-payment of alimony?
1) Claim unpaid amounts
To avoid legal proceedings, the most convenient option is the amicable route.
Try to reach an agreement with your ex-partner to resolve the issue. If this is not possible, it is advisable to request payment in a reliable manner (sending a burofax).
2) Request the execution of the sentence for non-payment of alimony
If your ex-partner does not voluntarily pay the alimony owed to your children, you must go to court.
If your children are of legal age, they will be the ones to claim the amounts not received. The Public Prosecutor’s Office may also do so.
The claim will be made through a demand for forced execution of the sentence for non-payment of alimony.
The maximum period to claim will be 5 years from the non-payment of alimony. The intervention of a Lawyer and Attorney will be necessary.
3) Request in the executive lawsuit the seizure of assets and the imposition of coercive fines
Seizure of debtor’s assets
Non-payment of alimony can lead to the seizure of the debtor’s assets.
In the executive demand, you must indicate the debtor’s assets that may be seized. If you do not know their assets, you can request an investigation of the debtor’s assets.
The Judge may order the seizure of the debtor’s salary, bank accounts, homes, rents, or any other property.
Regarding the salary, in general terms, it is not seizable if it is less than the Minimum Interprofessional Salary (SMI):
The salary, salary, pension, remuneration or its equivalent, which does not exceed the amount indicated for the minimum inter professional salary, cannot be seized.
But this general rule has an exception:
The provisions of the previous article will not apply when the execution of a sentence condemning the payment of alimony is carried out, in all cases in which the obligation to satisfy them arises directly from the Law, including the pronouncements of the sentences handed down in judicial proceedings. annulment, separation or divorce on maintenance owed to the spouse or children or of the decrees or public deeds that formalize the regulatory agreement that establishes them. In these cases, as well as in those of the corresponding precautionary measures, the court will set the amount that can be seized.
Consequently, the debtor’s salary for non-payment of maintenance, even if it is less than the SMI, can be seized.
Imposition of periodic penalty payments
Likewise, you can request the imposition of coercive fines in the event of repeated non-compliance with the payment obligation.
These fines may consist of 20% of the monthly amount that must be paid or a fine of 50% of the total amount.
4) Report the crime of family abandonment
The penalty will be imprisonment of 3 months to 1 year or a fine of 6 to 24 months.
Anyone who fails to pay for two consecutive months or four non-consecutive months any type of financial benefit in favor of his or her spouse or children, established in a judicially approved agreement or judicial resolution in cases of legal separation, divorce, declaration of nullity of marriage , filiation process, or alimony process in favor of their children, will be punished with a prison sentence of three months to one year or a fine of six to 24 months.
To file a complaint, it is necessary that the parent obliged to pay, even if he or she is able, does not have the will to pay. Willful misconduct is required.
1-How to get a notice of non-payment of alimony?
If alimony payments are missed, contact the court clerk’s office to file an affidavit and motion for notice and show cause hearing for non-payment of alimony.
2-How to obtain non-payment of alimony?
To address non-payment of alimony, file a contempt motion with the court stating the payments owed and requesting enforcement of the alimony order.
3-Can child support ceases because of financial inability?
In most states, child support obligations cannot be retroactively modified or forgiven due to financial hardship, though limited prospective relief may be available in some cases.
4-Is alimony required to be paid in cases of genuine insolvency?
If the obligor can prove they cannot pay, the court may temporarily suspend or modify alimony payments, but arrears will typically continue to accrue.