Evasion of paying child support is a common problem that women who raise children on their own most often face. Is it possible to hold a willful defaulter accountable? R.TIGER tells what measures of influence on debtors are provided for by Russian legislation.
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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.
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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.
How to hold a defaulter accountable
A bailiff monitors the timely payment of alimony. He warns the defaulter twice about criminal liability from the moment the debt is discovered. A month must pass between the first and second warning. The bailiff service itself identifies defaulters, but the collector can rush things by pointing out to the bailiff the fact of non-payment. After two warnings, the bailiff takes written explanations from the claimant. You will need to tell:
- how long has he not received money;
- where the debtor lives;
- where the debtor works and how much he receives;
- whether he provided financial assistance to the claimant.
After this, the bailiff writes a report on the discovery of the crime (Article 143 of the Criminal Code of the Russian Federation) and transfers it to the investigator. He checks the information received, initiates the initiation of a criminal case, and, if necessary, searches for the defaulter.
After investigation, the case is sent to the court, which will determine the punishment. During the trial, the creditor may demand that the defaulter reimburse the entire debt, as well as pay a penalty for each day of delay - 0.5% of the total debt.
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.
The case under Part 1 of Art. 157 of the Criminal Code of the Russian Federation
Taras Pavlovich turned to me for legal assistance on the urgent recommendation of his friend, who is well aware of the results of my professional activities.
Taras Pavlovich was accused of committing a crime under Part 1 of Art. 157 of the Criminal Code of the Russian Federation - malicious evasion of payment by court decision of funds for the maintenance of a minor child.
The criminal case was at the stage of sending the case to court by the prosecutor. I did not have the opportunity to familiarize myself with the materials of the criminal case, since the investigator sent the case to the prosecutor.
All that remained was to wait for the trial. Having received a copy of the indictment and learned from Taras Pavlovich that he had chosen a special procedure for the trial, it became clear to me that at the stage of the preliminary investigation the investigator did not make a single significant mistake that could cast doubt on the charge brought against him.
Taras Pavlovich did not need a criminal record, since he got a job in law enforcement agencies as a civilian. At the same time, he had a real opportunity to be certified and receive a special title, which automatically increased the size of his salary.
Therefore, there was only one way out for him - this was to receive forgiveness from his ex-wife and reconcile with her.
And this event was quite difficult to carry out.
I managed to correctly instruct Taras Pavlovich before he negotiated with his ex-wife, to convince her that no one would benefit from his criminal record.
His ex-wife, after repeated negotiations, in which I had to join, agreed to reconcile during the court hearing.
Reconciliation with the victim is the basis for exemption from criminal liability.
Taras Pavlovich’s ex-wife did not want to appear in court. However, I warned her that, of course, she may not appear, but the likelihood of her being summoned to court is very high.
All necessary documents were prepared, including those providing the necessary guarantees for the payment of arrears of alimony.
Before the court hearing, I informed the magistrate that there were grounds to terminate the criminal case against Taras Pavlovich, and showed all the prepared documents. However, the magistrate stated that it was necessary for the ex-wife to appear at the court hearing.
Taras Pavlovich phoned her at lightning speed and ensured her appearance at the court hearing.
During the court hearing, the ex-wife supported her petition to dismiss the criminal case.
As a result, the magistrate ruled to terminate the criminal case against Taras Pavlovich.
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.
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When can they not be imprisoned for failure to pay child support?
The application of Article No. 157 of the Criminal Code of the Russian Federation in relation to alimony payers (even if their behavior can be qualified as malicious non-payment) is limited. So, in the presence of certain mitigating circumstances, it cannot be applied, and is not applied.
Such mitigating circumstances could be:
- Loss of a job, provided that the payer contacts the employment service to find a new one
- Delay in wages due to the fault of the employer of the alimony payer
- Non-delivery of alimony to the recipient due to the fault of the bank (proven by presenting paid transfer receipts)
- Long-term illness, as a result of which the alimony payer suffered significant material losses
- Transfer to the alimony recipient of at least the minimum amount during the last six months
These circumstances, of course, do not relieve the alimony payer from the obligation to pay the entire amount of the accumulated debt and subsequently regularly pay alimony. And also from possible administrative and civil liability. But a criminal article will not be applied to him.
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.
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