Evasion of alimony payments: what is malicious evasion

Who is a persistent alimony defaulter?

So, first of all, let's define the basic concepts. In what case is a child support defaulter considered malicious? If a citizen does not pay alimony for a long time and does it systematically and consciously, such evasion is called malicious. At the same time, it is possible to recognize a person as a willful defaulter only if the obligation to pay alimony was imposed on him by the court or it arose on the basis of a notarized agreement. If the parties simply agreed on payments for child support, evasion cannot be considered malicious.

Important! It should be borne in mind that a delay in payments (occurring over a couple of months) or transfer of an incomplete amount cannot be evidence that the payer is maliciously avoiding fulfilling his obligations.

In what cases can you expect that the debtor will be recognized as malicious? A person is recognized as a willful defaulter if the following conditions are met (one or more):

• long period of non-fulfillment of obligations (over 4 months);
• providing false information about income;
• refusal to help the Employment Center in finding a job (if it is not available);
• regular change of place of residence (in order to hide from the bailiffs);
• ignoring warnings sent by bailiffs.

How to prove unofficial income

Usually, suspicions of concealing income when paying alimony arise when enforcement proceedings begin and funds begin to arrive. The bailiff responsible for the timeliness of transfers may not identify any suspicious actions in relation to the displayed salary. Due to the excessive workload, it is difficult to devote individual time to each case, so the task of the payment recipient is to monitor the amounts received into the account and control the correctness of their calculation.

Signs of concealment of income may include:

• the payment amount is too low;
• frequent changes in the amount of money;
• irregularity of receipts.

Such cases are a direct guide to action: collect evidence and go to court with a new demand to change the calculation of the share of income to a fixed payment in accordance with Art. 83 RF IC.

• Limitation period for alimony: the right to demand payments

It will be necessary to prove in court the unacceptability of the usual settlement procedure within the framework of the lawsuit, which involves summoning the defendant to meetings, hearing witnesses and a comprehensive consideration of the documents presented by both parties. There is no simplified procedure for assigning a fixed sum of money in court.

Before filing a claim in court, you will have to try to collect the maximum number of facts, documents, objective information that would indicate a deliberate understatement or concealment of earnings. The burden of proof falls on the plaintiff, so the desire to receive fixed, stable payments is clearly not enough to consider the case.

How evidence is collected

The following information will be useful to the child's mother or other recipient of alimony payments if it is necessary to collect information about real income. Speaking as an unofficial person, it can be difficult to get any information about how much the father earns.

A woman is limited in how she can obtain information, but there are still several ways to cope with the task:

• The FSSP service, where enforcement proceedings have been opened, requests information and documents obtained during the investigation. If it is not possible to extract accurate information from them, you can find valuable information about the nature and source of income in the accounts of the defaulter.
• When there is an understanding that the person receiving alimony goes to work and performs certain types of work, it is worth contacting the management and requesting information about the correspondence of the information from the FSSP with the actual state of affairs. If you talk to management, you can convince them to officially accept the job in order to remove suspicions from the employer of concealing the labor income of the staff.
• If the management does not make contact, they contact the labor inspectorate with a complaint and a request to conduct an inspection of the legal entity in which the alimony payer works or may work. It is easier for officially authorized persons to understand the situation and check the organization’s documents in relation to a specific employee.
• Gray salaries and envelopes on payday will not surprise anyone. If you conduct a detailed investigation, comparing expenses with income, these actions will not be enough for the court. The most effective way would be to contact the Federal Tax Service with a request to check the legal entity for payment of taxes and identify reports indicating the concealment of part of salary payments. The conclusion of the Federal Tax Service will become strong evidence for the court.
• Expensive purchases, cars, apartments purchased by relatives may turn out to be purchased with the money of an alimony defaulter. If there is a suspiciously rapid increase in property in the ex-spouse’s family, there is reason to assume that the child’s father decided to transfer purchases to his relatives in order not to advertise his income. A more detailed dive into the income of the child's father's relatives may show that their own income is clearly not enough to afford a large purchase.
• If the ex-spouse lives in grand style and justifies this with the loan he received, it is worth asking how he pays the loan payments. The task will be to obtain confirmation of the availability of loan payments, but the banks themselves are unlikely to provide information to outsiders. You will have to ask the bailiff for help to submit an official request to the bank where the defaulter is supposedly receiving credit.
• Business owners are also in no hurry to share their profits with their own children. As soon as a court order for payment is received, it turns out that the company is suffering losses or is barely making ends meet. It is difficult to understand the complexities of accounting and tax reporting, but it is possible to substantiate suspicions of concealing income if, after receiving a writ of execution, the company sharply changed its indicators.
• If a person occupies a well-paid position or profession, the court is presented with statistics on the average salary in the region for specialists of a similar level. Information on the average salary is requested from the Chamber of Commerce and Industry.

There is no single solution to how to prepare as thoroughly as possible for trial and present a convincing case. Acting according to the circumstances, you need to choose those methods of how to find out your husband’s salary for alimony that are applicable in a particular case.

Entrepreneur's income

Often recipients of alimony doubt the authenticity of the income shown to the tax authorities from the entrepreneur. If an individual entrepreneur hides income, how to prove this fact to the court becomes the main problem for the plaintiff. When the payer runs his own business, it is recommended to assign fixed payments in favor of the child, since business income is often unstable and allows periods of excess profits and losses.

• Application to the bailiffs regarding arrears of alimony

If the assigned amount seems insufficient or unfair, the woman has the right to address her doubts to the bailiff and make a request for similar information from all official organizations, government agencies, and credit institutions.

This information should be enough to judge whether there is concealment of income from alimony.

Recognition of alimony debtor as a willful defaulter

It is possible to recognize a defaulter as malicious only in court. To do this, the interested party must send a statement of claim to the court, which sets out all the circumstances of the case. The recognition process consists of several components:

• written notification of the defaulter about the liability that threatens him;
• re-sending the notice (after 1 month);
• collecting information about the debtor;
• criminal proceedings.

The court makes a decision based on the results of legal proceedings. If a citizen is found to be a persistent defaulter, he will be punished.

Do you go to jail for not paying child support?

Expert opinion

Semyon Frolov

Lawyer. 7 years of experience. Specialization: family, inheritance, housing law.

Question:

My husband and I have been divorced for more than 10 years, our common child is 15 years old. During all this time, we received pitiful pennies from the child’s father. He was fired from his job, he went abroad to work, worked unofficially, and spent a long time undergoing treatment in the hospital. The bailiffs throw up their hands and fail to achieve payment of the debt. Is it possible to put my ex-husband in jail for non-payment of alimony? Are they imprisoned for such a violation?

Answer:

Yes, the criminal law provides for such a crime as non-payment of alimony (Article 157 of the Criminal Code of the Russian Federation). And although it is classified as a crime of minor gravity, criminal liability for it is a very effective method of influencing non-payers.

Responsibility for evasion of alimony payment

There are three types of liability for defaulters: criminal, civil and administrative. It should be taken into account that malicious evasion entails the imposition of criminal punishment under Article 157 of the Criminal Code of the Russian Federation. Debtors are given such types of punishment as correctional or forced labor (up to 1 year), arrest (up to 3 months), and imprisonment (for no more than 1 year). At the same time, it will not be possible to immediately recognize a defaulter as malicious: first, administrative punishment is applied to such citizens.

Important! It was decided to recognize persistent defaulters as criminals due to the fact that such a measure should encourage debtors to pay alimony (fines are simply not a problem for many). First, debtors are given a chance to rectify the situation and are given administrative punishment, and only then criminal punishment.

Arbitrage practice

In judicial practice, it has developed that methods of malicious evasion are indicated in the form of evasion from paying alimony, despite the presence of an appropriate warning, evasion from carrying out work activities, and other actions.

If a person obligated to pay alimony does not fulfill his obligation in good faith, the Federal Bailiff Service intervenes, one of whose functions is to ensure the rights of citizens to receive alimony. To carry out this function, bailiffs apply enforcement measures .

A criminal case can be initiated on the basis of:

1. Bailiff's report on detection of signs of a crime,
2. Claimant's statements
3. Messages from other sources about a crime that has already occurred or is being prepared.

Such cases are under the jurisdiction of magistrates . As a rule, most criminal cases are initiated based on statements from former spouses against former husbands.

As for judicial practice regarding malicious evasion of adult children from paying funds for the maintenance of disabled parents in need of support, there is practically no such practice.

Example

The defendant, an unemployed father of three minor children, was ordered by a magistrate to pay monthly alimony in favor of their mother (the victim) in the amount of 1/3 of his income for the maintenance of children.

The bailiff initiated enforcement proceedings, the father of the children repeatedly received warnings against signature that malicious evasion of alimony payment is a crime, and criminal liability is provided for its commission.

However, the defendant made no attempt to find employment. Also, for 6 months after the judgment, he did not pay alimony, did not give gifts to the children, did not buy things for them, and did not take part in their upbringing at all. The total amount of debt for alimony obligations amounted to more than 370 thousand rubles.

The prosecution presented written evidence (court order, direction to pay alimony, warning of liability, etc.). Plus, the father was registered with a narcologist, was prosecuted for committing an administrative offense, and showed himself on the negative side in prison.

The father's actions were recognized by the court as malicious evasion of child support obligations. He was sentenced to correctional labor for a period of 9 months.

Administrative liability for malicious evasion

The punishment for malicious evasion is established in Article 5.35.1 of the Code of Administrative Offenses of the Russian Federation. Persons found guilty under this article are given a fine of 20 thousand rubles. Also, such sanctions as compulsory work, arrest (for 10-15 days) and restriction of driver's licenses (it will be impossible to use a driver's license until the debt is repaid) are applied to debtors.

Another measure of influence on debtors is deprivation of parental rights (Article 69 of the Family Code of the Russian Federation), which is considered the most severe administrative punishment. When this punishment is imposed, the defaulter is deprived of the opportunity to participate in the upbringing of the child, but the obligation to support him (and, accordingly, to fulfill alimony obligations) remains.

Deprivation of parental rights

Another extreme measure against negligent payers is deprivation of parental rights. This is a rather complicated procedure. Only a court can make an appropriate decision based on compelling reasons at the request of the second parent or representatives of the guardianship authorities.

This prospect does not always frighten irresponsible parents. Some people mistakenly believe that this way they are automatically released from alimony obligations. This opinion is completely wrong. According to Russian legislation, deprivation of rights in this case does not imply the abolition of responsibilities. Therefore, the need to pay money for child support remains. But the opportunity to demand from grown children funds to support their parents, inherit their property, etc. is lost.

We recommend reading: deprived of parental rights, is it necessary to pay child support?

Civil liability (collection of penalties through court)

The presence of civil liability provides for the possibility of paying a penalty in the event of debt formation (Article 115 of the Family Code of the Russian Federation). The amount of the penalty is 0.1% of the debt amount for each day of delay. To receive payment, the injured party must file a statement of claim with the court (the statement indicates the demand for the collection of a penalty).

Thus, the legislation provides for various measures to protect children, including imposing criminal penalties on debtors. If a situation arises in which a parent does not fulfill his obligations to support the child, we recommend immediately contacting specialists.

The lawyer will advise on possible options for the development of events and suggest the optimal course of action. The specialist will also help in preparing documents and representing the interests of the principal.

Application to court

To increase the chances of receiving the alimony due for raising a child, you can file an application with the court against the evading parent under Article 80 of the Family Code. It must be compiled in compliance with certain rules.

In accordance with Article 142 of the Civil Code, the application must contain:

• the correct full name of the judicial authority, the district to which the application for arrears of alimony is submitted;
• passport details of the applicant, namely first name, last name, patronymic and registration address;
• passport and other known data of the person (parent) from whom child support must be collected, this is the name, surname, patronymic, actual place of residence, date of birth, place of work;
• statement of requirements (description of the situation, application of justifications, that is, the child’s birth certificate indicating the parents or a court decision to establish paternity, etc.);
• attachment of documents serving as the basis for the collection of funds;
• a list of applications, where the first item is always a receipt for payment of the state duty, which, in accordance with the Tax Code Article 333, is 50% of the rate in effect at the time of filing the application for ordinary claims.

A fully completed application is submitted to the judicial authority (magistrate court) at the applicant’s place of residence. This can be done by the plaintiff himself or his legal representative, acting on the basis of a notarized power of attorney on behalf of the citizen who is collecting alimony. The application is considered within 5 days (Article 126 of the Civil Procedure Code) from the date it is received by the court.

The case of collecting alimony from a parent is considered in a special manner. The parties are not summoned to court for the proceedings.

The judge considers the case and makes a decision in the form of an order, then sends it to the citizen who is in debt. In this case, the debtor can present his claims under the order within 10 days; if this does not happen, then another copy of the order is sent to the bailiff service to enforce the penalty. If the debtor exercises his right and sends a written disagreement with the order, it will be canceled, and the person collecting the claim will have to file a claim in the general manner also in the magistrate’s court (the procedure is described in Article 129 of the Civil Code). To file a claim, another application form is used.

applications for alimony:

If it was not possible to reach peace agreements

If it is impossible to resolve the problem of receiving alimony payments on the basis of a voluntary agreement and the payer evades fulfillment of obligations, the only option is to file a lawsuit. The determination of the actual earnings of the former spouse for the purpose of alimony payments is made by the magistrate at the registration address of the alimony obligee. By law, both father and mother must provide for children until they reach adulthood.

If the father does not pay the amounts due, then when filing a statement of claim it is necessary to prepare a sufficient amount of evidence. Condoning your ex-husband's irresponsible actions is the wrong tactic. The mother is not obliged to support the children alone, and the help of the father helps to achieve the necessary income.

Due to legal illiteracy, many women after a divorce receive only verbal consent to payments from their ex-husband, without concluding a notarial agreement. In this case, the relationship is built on the parameters declared by the payer; he determines the amount and dates of payments. This leads to regular delays, the amount of payment does not correspond to what was promised. Sometimes the payer delays alimony payments for a quarter, and then up to six months. The following circumstances are identified why fathers avoid obligations:

1. The desire for revenge - after a divorce, the spouse tries to cause his ex as much trouble as possible for initiating the dissolution of the marriage.
2. There are no paternal feelings - ex-husbands, accustomed to guardianship and protected from parental responsibilities by their wives, do not feel responsibility towards their own children.
3. Unemployment and ultra-low income - in this case, the loan determines whether the man is deliberately not employed. If so, he will be held accountable.
4. Selfish character - there is no desire to care about anyone other than yourself.

This complicates the already difficult life of a mother who has to provide for her child on her own. Therefore, she inevitably faces the question of how to prove her ex-husband’s income for alimony.

Confirmation of income of the child's father

It is not difficult to prove that the defendant does not have a permanent job and stable sources of income. But if the draft dodger is employed and is listed as an employee of the organization, but still does not pay, then the trial will affect not only the defendant, but also the employer. The plaintiff needs to act in accordance with the following algorithm:

1. Search for reliable evidence and contact the police. Concealing real income from government agencies and the recipient of alimony is a violation of the law of an economic nature. In this case, sufficient arguments may include, for example, the purchase of luxury housing, registration of a car, the presence of unofficial sources of income from which taxes have not been paid.
2. Submitting an application with attached evidence to the relevant department of internal affairs.
3. The applicant should not leave things to chance. It is necessary to monitor the work process of law enforcement agencies and become familiar with records management data. If authorized persons fail to act, you must complain to higher authorities.

To move things forward more effectively, seek the help of a professional lawyer who specializes in divorce proceedings and alimony collection. He gives competent advice on how to prove the concealment of income for alimony payments, will help speed up the investigation, and will also draw up the necessary letters. Having summarized the available materials, you can prepare a statement of claim that will help restore justice.

When can they not be imprisoned for failure to pay child support?

There are a number of mitigating circumstances, the presence of which excludes criminal penalties for non-payment of alimony:

• loss of work if the alimony payer contacted the employment service to find a job;
• delay of salary to the payer due to the fault of the employer;
• availability of receipts for payment of alimony, even if the payment was not made by the bank;
• long-term illness that caused significant financial losses to the payer;
• payment of alimony in minimum amounts over the past 6 months.