Responsibility for non-payment of alimony in 2021

Parental duty is to support their children, including after divorce. Divorced people usually pay alimony. And if they don’t pay, they face liability for non-payment of child support. This is exactly what a person who says “I don’t pay child support and I won’t get anything for it” needs to know. So, it will be! Because the law protects the rights of the child. True, it is one thing if the alimony payer deliberately avoids responsibility, and another if a person’s life circumstances are such that he cannot support a child. Although there will still be punishment, it’s just the extent of it that is different.

Reasons for non-payment of alimony

Prosecution for non-payment of alimony can be argued for violations that the child’s guardians do in relation to their duties. The reasons for the violation may be different, but this does not detract from the degree of responsibility to the recipient. In other words, child support must be paid, but if it is not, the reason for nonpayment may affect the extent of the penalty.

Usually, the reasons for non-payment are divided into two large groups:

deliberate

respectful

In the first case, the alimony payer knows that he has an obligation to pay, but avoids it in every possible way, not fulfilling his parental duty. Non-payment occurs. Measures to evade liability may vary. For example, a person shows false documents or, conversely, hides some papers. He can also hide how much he actually earns, receiving a salary “in an envelope”, and giving the child a tiny amount from his “white” earnings.

Failure to pay alimony may be for a good reason, but to determine this, you will need to carefully analyze the situation and make sure that it is truly hopeless. Although the law contains a list of reasons that can be considered valid when it comes to non-payment of alimony. Sometimes the responsibility is removed, but in most cases the punishment will not be too severe.

The penalty for the fact that the payer was unable to pay alimony can be mitigated if he has lost his job and does not have any other regular income. But at the same time, the person does not sit still, but constantly tries to find a job or in some other way correct the situation, and does not parasitize. A person may also be found innocent if he has a job, but for reasons beyond his control, he did not receive any income. In particular, if the salary is withheld by the employer.

A person cannot earn alimony due to his disability or serious illness. This is also a valid reason, like other circumstances, under which a person cannot earn money regularly. The main thing is that these reasons are objective, and the person tries to circumvent them (to the best of his ability). Typically, persons can be released from administrative or criminal liability. Sometimes they are not charged a late fee.

In April 2021, the Supreme Court of the Russian Federation expanded the list of reasons why citizens could not pay alimony. In particular, now a parent will not be punished if he has been drafted into the army and is undergoing compulsory military service. Or there was a failure in the banking system. This resolution was adopted at the plenum on April 27.

It was also stated at the meeting that the amount of alimony can be disputed, but the fact of disagreement with it is not a compelling reason not to pay anything. In addition, the court may not agree that the amount of alimony set is incorrect.

Some amendments were adopted on the topic of non-payment of alimony by people who are in prison. It is indicated that each case where non-payment was recorded will be dealt with individually.
For example, assess how a prisoner works and whether he takes time off from work to fulfill his parental duty. In addition, representatives of the RF Armed Forces emphasized that in order to make the right decision, they must take into account the individual characteristics of each case, the financial situation of the family, etc. But if a person maliciously evades, he will be imprisoned for 15 days, and the maximum penalty is one year in prison.

What is considered malicious evasion?

Malicious evasion of payment of alimony is a failure by a parent to fulfill the obligation to support a minor child, when the failure to fulfill is systematic, deliberate and prolonged.

The set of signs characterizing malicious evasion is defined in Resolution of the Plenum of the Armed Forces of the Russian Federation No. 44 and is as follows:

Attempts to hide property or sources of income;
Change of job or place of residence without notifying bailiffs;
Administrative violations for non-payment of alimony;
Criminal penalties for non-payment of alimony.

Only that person in respect of whom there is a court decision that has entered into force on the obligation to pay alimony payments can be recognized as a malicious evader for non-payment of alimony.

In addition, for a parent’s behavior to be recognized as a malicious violation, there must be an impressive amount of debt and direct intent in his behavior.

If a person is a couple of months late in payment, this will not be grounds for initiating a criminal case against him for non-payment of alimony.

What are the consequences of non-payment of alimony?

When the question arises “should I pay child support?”, you should always remember that people who do not pay must be held accountable for failure to comply with the law. The main purpose of child support is to ensure a comfortable life for the child. Sometimes child support must be paid not only for minor children, but also for people who cannot support themselves due to disability.

If the alimony payer does not pay money, he must understand that he faces liability and will be punished. The offender may be affected in different ways. The measure is chosen depending on the circumstances of the case, whether the offender is malicious or not, as well as other circumstances.

As a rule, it all starts with the bailiff visiting the home of a person who has failed to pay alimony, handing him a notice that he has been summoned to the FSSP. If the funds are not deposited, the violator will be prohibited from traveling outside Russia, since enforcement proceedings have been opened against the person. For each day of delay, the alimony payer must pay a penalty, which has a cumulative effect, so the amount will become even greater. The amount of the fine is fixed and amounts to 0.5% of the amount of overdue alimony.

The violator also faces administrative liability. In particular, this may be a fine, compulsory labor or administrative arrest. In particularly egregious cases, the violator may be subject to criminal liability and even imprisonment.

Fine

One of the most loyal penalties for not paying alimony is a fine as an administrative form of punishment. In addition, a fine for non-payment of alimony is imposed most often. This is due to the fact that there are really a lot of violators, and it is simply not possible to imprison everyone. Moreover, this is not a very serious offense. But the main purpose of the fine is to encourage the citizen to take his responsibilities responsibly and pay the debt. And if he doesn’t do this, he will owe not only the child, but also the state. And it’s better not to joke with the law.

Deprivation of parental rights

Deprivation of a father's parental rights for non-payment of child support is not always possible. The first requirement is a sufficiently large amount of debt . You can apply for deprivation of parental rights if the amount of debt is at least 10 thousand rubles. Although usually, few people apply for deprivation of parenthood as soon as the debt crosses the designated line. As a rule, the amount should be higher.

In addition to money, there must be a fact of malicious evasion. For example, if the father is constantly late in payments or simply does not pay anything. The process is regulated by the norms prescribed in the law on enforcement proceedings. Although the measure in question can also be applied in the event of harm to a child, etc.

The fact of malicious evasion of responsibility is also very important. In particular, it will not be possible to deprive parental rights simply because a parent is temporarily behind on one child support payment. It is important that this deviation be systematic. Only in this case can he be called “malicious” and the procedure for depriving parental rights begin. More information about this can be found in Art. 69 RF IC.

Once a person is deprived of parental rights, he is deprived of the opportunity to participate in the life of the child. This also has legal consequences, since from now on the former parent will not be able to approve the child’s transactions, represent his interests and more. He does not fulfill his parental duty, and will not be able to receive the child’s inheritance or qualify for government subsidies. Although the obligation to pay alimony will not be removed from him.

Revocation of driver's license

This measure can only be used if the defendant does not prove that driving is his main source of income. Otherwise, he will have to receive another administrative punishment.

Administrative responsibility

If obligations are not fulfilled, citizens sometimes face administrative liability for non-payment of alimony. As in other cases, an administrative form of punishment will be received if the alimony payer deliberately did not pay, evading his duties.

First of all, a person can be held accountable under Article 5.35.1 of the Code of Administrative Offenses of the Russian Federation. Administrative liability means several penalties that a person who does not pay child support may incur:

fines of 20 thousand rubles;
forced labor for three months;
stay under arrest for 15 days.

The majority of defaulters may bear administrative liability. This is due to the congestion of prisons, because for most citizens it is enough to pay fines as an administrative form of punishment or undergo forced labor rather than serve a criminal sentence.

Criminal liability

Criminal liability for non-payment of alimony is the last lever of pressure on especially persistent defaulters. Usually, defaulters have to answer under criminal law if administrative measures were applied to them, but the person continued to violate for another 2 months or more.

The Criminal Code applies if the defaulter of alimony is unpaid for three or more months, and he does not even think about covering such debt. Lack of work is also not an excuse, since then the person must be registered with the Central Employment Service.

There is also a high risk of incurring criminal liability, based on the Criminal Code, if the defaulter does everything to evade his task. For example, he switches to a “gray” salary, hides income, sells property using fictitious transactions.

But for criminal liability to begin, a criminal case must be initiated and a court verdict must be obtained . After this, the alimony payer may suffer a more serious punishment, which is provided for by the Criminal Code. In particular, go to forced labor, where he will have to work for about a year. Also, the defaulter may be arrested for three months or imprisoned for a year.

Imprisonment is the harshest measure, which is used extremely rarely even if the non-payment is large. In particular, if no other penalties provide the desired effect, like a criminal sentence.

Mitigating circumstances when bringing to criminal liability

Article 157 of the Criminal Code of Russia provides for a number of mitigating factors, due to which responsibility for systematic evasion of financial assistance to a child cannot be punished by imprisonment. These include:

Loss of a job. The reason is considered valid in the case when the person making the alimony payment applied to the employment center to find a job.
Long delay in wages of the payer due to the fault of the employer.
The payer has receipts for the transfer of funds if payments were not made through the banking system.
Long-term health problems with the payer that have caused serious difficulties in the financial situation.
Making alimony payments over the last six months, but in a minimal amount.

In any other cases, the person is considered criminally responsible and will suffer one of the penalties indicated earlier.

Court for non-payment of alimony

As a rule, the first thing that threatens non-payment of alimony is a trial, since it is doubtful that the defaulter will agree to voluntarily return the money. You will have to start legal proceedings, and for this you need to file a lawsuit. Appeal to the court can be done in several ways. The first is filing an application for a court order. The second is to write an application for alimony.

The writ procedure for liability is used in certain cases. For example, if the applicant tries to collect alimony in the form of a share of the payer’s earnings. Also, the type of claim under consideration is filed if it is necessary to appeal the order, it is necessary to collect a fixed payment, or there is no accurate information about the earnings of the alimony payer.

If non-payment is not the only problem, other, parallel cases are also resolved. For example, if alimony is assigned along with the issue of divorce and division of property. Naturally, issues are resolved through the court when alimony has already been assigned, but the payer for some reason refuses to pay it. In this case, the court may request the collection of a penalty.

For everything to go well, you need to correctly follow the procedure for bringing to justice, adhering to the procedure prescribed by law. The procedure includes several stages. First of all, you need to go to the alimony payer and ask him to draw up a settlement agreement, according to which you will not sue, and he will return the money by a specified date. But it’s not always possible to do this.

If a settlement agreement cannot be concluded, you should begin collecting documents in order to file a lawsuit to have the non-payment returned. Having collected the package of necessary papers, you will have to write a statement indicating the filing of the claim. Now you can submit documents and an application to the court to bring the defendant to justice.

When the trial takes place, you must be present at the hearing or send a representative. Although in some cases a decision may be made without participants in the hearing. Having a writ of execution in hand, you should go to the FSSP so that enforcement proceedings can be initiated. For non-payment of alimony, bailiffs will look for all sorts of ways to repay the debt to the alimony recipient.

Particular attention should be paid to how the statement of claim is drawn up, since the correctness of the document in question determines how seriously the court will take your problem and what punishment it will choose (administrative or criminal option). Please note that an application cannot be made to hold the defaulter liable. But, not counting the cases where non-payment of alimony is not the only argument, but there is also a penalty and a fine.

The documents submitted along with the claim must include:

papers confirming the identity of the applicant;
marriage certificate, divorce and birth certificate;
documents confirming the income of the alimony payer (we can talk about estimated income) and the alimony recipient;
documents confirming the health of the recipient child, etc., documents reflecting what expenses the treatment involves;
other papers providing grounds for payment of alimony;
other documents that can make the plaintiff’s position more authoritative.

Sometimes a power of attorney may be required if the parties are represented by a representative. When the documents are collected, it should be demanded that alimony be forcibly collected from the alimony payer, and he bears responsibility. Such a requirement may require the availability of some additional documents. For example, a writ of execution, a passport, a judicial act, etc. The application must be submitted to the local service where the bailiff works, at the debtor’s place of residence.

There are certain requirements for drawing up a statement of claim. The document must contain information about the bailiff department where it is being submitted, its address and details. This is the so-called cap of the claim. Next, indicate the name of the document and the request (to initiate a case of an administrative or criminal nature). Give the basis on which the request can be fulfilled (details of the order or sheet). You also need to list the applications and sign them.

The statement looks like this:

The process of initiating a case

Unfortunately, cases of punishing alimony defaulters are always complex, although the legislation, in particular the Criminal Code, has a special article 157 for this offense.

The claimant must interact with the bailiff, senior bailiff, and investigator of the Federal Bailiff Service. You can also use the help of lawyers experienced in this matter:

The collector himself can file a statement of claim, bringing the defaulter to criminal liability. He can also act through a bailiff.
He must give full information about the date on which the non-payment began and what he knows about its reasons. It is important to know the location of the defendant and his place of work.
If the debtor has recently helped financially in some way, in addition to mandatory alimony, the court must be informed about this.

The bailiff considers the claimant's application and the possibility of opening a criminal case. He must decide whether there is a prospect of considering this issue in court. Before submitting documents to the court, the bailiff informs about the upcoming claim of the alimony holder.

ATTENTION! In some cases, this warning is enough for the debtor to pay off his debts and further fulfill his child support obligations.

Few people will be happy with the prospect of arrest or even forced labor.

Wanted for non-payment of alimony

The father and mother must support their children, therefore failure to pay child support by the father leads to serious consequences. The father may not only not pay money, but go into hiding. In this case, there is a high chance that the search procedure will begin.

The search for the father, who is accused of non-payment of child support, begins at the initiative of the bailiff service. They cooperate with law enforcement agencies, which, in fact, do the lion's share of the work. But the work begins after sending the application from the FSSP. Therefore, if the bailiffs ignored their duties, the recipient can write a statement to speed up the process. But the FSSP will begin the search procedure if it was not possible to find him at the defendant’s actual residence address.

To fill out an application to search for your father for non-payment, you must adhere to the prescribed form. The document should indicate which department it is being submitted to (details), information about the bailiff who handled the case. It should also be noted who is the payer of alimony (father) and the recipient (mother of the child, etc.). It is imperative to indicate the fact of the absence of alimony, as well as other circumstances that could influence the situation. Documents that are relevant to the consideration of the case should be referred to. And clearly argue why it is so important to find the debtor father.

The application is submitted, and after that it is considered for three days. When the allotted three-day period expires, the bailiffs give an answer. If it is negative, the reason for the refusal must be explained. And if positive, the search procedure begins, which is provided for by the Criminal Code. The FSSP sends requests to several authorities, including law enforcement. A request to the media must be submitted.

On what grounds is the nature of non-payment considered malicious?

The alimony holder has not complied with the court decision for many months.
He hides property , the sale of which would allow him to collect debts.
Real income is hidden.
The violator can change his place of residence without informing the new address or place of registration to both the alimony collector and the bailiffs. Although he must inform about his new place of residence.
Not only the address can change, but also the last name, first name and patronymic .
Alimony workers change their place of work without informing the bailiff . They also do not inform the accounting department at the new place of employment about the assigned alimony.
Among the methods adopted for non-payment of alimony are deliberate parasitism, unofficial employment, and false information about income.

The bailiffs may discover even one of these evidence of the malicious nature of non-payments in order to have grounds for opening a criminal case against the debtor. In this case, 4 months of debt for child support is enough.

Grounds for refusal

Penalties are not always imposed for non-payment of documents. Bailiffs first look into the reasons for non-payment before taking any strict action. There are a number of reasons why a criminal case may not be opened:

If the person who must pay child support cannot get a job due to health conditions.
It assumes not only physical disability, but also refusal of employers to hire due to health conditions.
A citizen may be called up to serve in the army, in which case he also does not have the income to pay alimony.
For reasons beyond his control, the payer’s financial condition may significantly deteriorate, which is also a serious reason for non-payment.

The child may be supported by a child support provider for a certain period of time. Therefore, it is quite clear that this parent spends money on his son (daughter), and the payment of alimony for this period may be canceled.

Concept and types of payments

Financial support for disabled relatives is the responsibility of every citizen of the Russian Federation. The Family Code provides for the types of payment of maintenance.

Among them:

Voluntary payment of alimony. Voluntary payment is carried out based on the personal wishes of the payer. He independently sets the amount and frequency of payments. The main thing is to document all the funds transferred to him.
Conclusion of a notarial agreement. The agreement is concluded by agreement between the payer and the recipient. The document is drawn up in writing and is subject to notarization. It is binding, just like a court decision. In case of refusal to make payment, the agreement can be transferred to the bailiff department as a writ of execution.
Collection through judicial authorities if the payer does not transfer alimony. Collection of payments through the court occurs when the payer refuses to pay voluntarily or contributes smaller amounts than the recipient expects. The result of the court hearing is a writ of execution. The document is transferred for enforcement to the bailiff department.

Each of these methods (except for voluntary) receiving financial support has its own nuances, and in each of these cases, the child’s parent can receive the status of “willful defaulter” by evading their responsibilities.

Important! If the alimony refuses to make timely payments under the writ of execution and obstructs the bailiffs in collecting funds, the law provides for administrative and/or criminal liability.