Malicious evasion of alimony payments: liability, enforcement measures, judicial practice

Raising children is a mutual responsibility of parents, which is enshrined in the norms of Family Law, and violation of the obligations imposed on them is fraught with the application of legal liability. In addition to punishment for the use of violence during upbringing, improper upbringing, as well as allowing minor children to commit administrative or criminal offenses, negligent parents also face sanctions for malicious evasion of the financial support of their children, that is, the payment of alimony. And this year, alimony legislation has undergone a number of significant changes in this area.

What does malicious evasion of child support mean?

According to the norms of the current legislation, malicious evasion of alimony payments is usually understood as the actions of a person who is obliged to financially help children and has the financial ability to do so, but uses various methods of refusal and evasion of payments (not always legal).

In this case, the defaulter must repeatedly receive a warning or legal penalty in order to be considered malicious.

The main signs of misconduct leading to recognition of the defaulter as malicious include the following:

performing intentional actions that create grounds for cancellation of payments;
actions must be systematic, which is a sign of malice.

IMPORTANT: The obligation to pay alimony must be fixed and not based on promises. It is possible to sign a notarial agreement between the mother and father on payments or to force payments by a court decision.

In addition, the objective side of a criminal act is characterized by the commission of the following actions:

change of place of residence or provision of false information about the residence address;
concealment of official income;
receiving unofficial income and refusing legal employment or receiving unemployment benefits for unofficial employment;
deliberate change of first or last name in order to prevent deductions.

In addition, in order to apply punishment for non-payment of alimony, there must be a minimum period of evasion, which must be 4 months. During the entire period of evasion of alimony payment, a penalty is charged on the amount of the debt.

Important! The offense implies not only the unjustified refusal of financial assistance to children by parents, but also the refusal of adult children to provide financial support to parents who cannot provide for themselves. This is only possible provided that the mother and father were not deprived of parental rights and remained legal guardians until the child reached adulthood. Deprivation of parental rights of parents does not exempt the latter from paying child support.

Instead of an afterword

As practice shows, women who are left with children after a divorce bring their ex-husbands, who do not pay alimony, to justice, without pursuing the goal of actually depriving them of their freedom.

The threat of criminal punishment may encourage a persistent alimony defaulter to pay off the debt and continue to faithfully fulfill his obligations.
Information about the criminal punishment of the father (mother) for deliberate evasion of obligations not only for the upbringing, but also for the financial support of the child is a justified reason for filing an application for deprivation of the parental rights of the former spouse, with all the ensuing consequences.

It is impossible to give definite advice on what is better: to resort to the possibility of holding the ex-spouse accountable if he is in debt, or to find a compromise.
Order a free legal consultation

Who is a habitual defaulter?

The subject of this criminal act can only be adults and capable persons who are obliged to provide financial assistance to close relatives.

Thus, the following may act as persistent violators of non-payment of alimony:

mother and father who have not been deprived of parental rights;
legal guardians;
adults and able-bodied children;
grandchildren, grandparents (Articles 94-95 of the RF IC).

In addition, there must be legal grounds for collection, that is, a court decision to assign alimony.

It is also possible to sign a notarial agreement between the parties, in case of non-compliance with which enforcement proceedings may be initiated.

IMPORTANT: If the parent with whom the child left after the divorce lives did not go to court with a demand for alimony, and at the same time there was no agreement on alimony between him and the second parent, then it will be impossible to prove the fact of malicious failure to pay alimony. It will be permissible to collect through the court alimony for the three years preceding the time of application, but for this the plaintiff will have to prove that the payer has been making attempts to obtain child support all this time, and the ex-husband, for example, has evaded paying it.

How to hold people accountable?

The procedure is as follows:

The recipient of alimony submits an application to the bailiff conducting enforcement proceedings in this case.
The bailiff, in collaboration with the investigator and the senior bailiff, carries out a set of measures aimed at identifying signs of malicious evasion. FSSP employees send a written warning of criminal liability to the debtor's address. If the payer still has not paid alimony, then after a month he will be sent a second warning.
If the debtor ignores the notifications, does not appear at the FSSP department and does not send explanatory letters with the reasons for non-payment, then the bailiff draws up a report on identifying signs of a crime and sends it to the investigator. He, in turn, having studied the evidence attached to the report, initiates a criminal case.

The matter becomes more complicated if the whereabouts of the debtor cannot be established. In this case, the bailiffs put him on the wanted list. A criminal case is initiated only after the address of a persistent offender becomes known. We talked in more detail about who and how will search for the debtor in a separate article.

Responsibility and types of penalties for evasion

On July 3, 2016, a new article numbered 5.35.1 was introduced into the current Code of Administrative Offenses, the purpose of which is to punish persons who evade alimony obligations. According to this norm, the following may be held liable under this article of the Code of Administrative Offenses:

only parents or adult children obligated to pay child support;
the minimum period of evasion must be 2 months;
In addition to a court decision, a notarial peace agreement is also sufficient, which were violated.

The period begins to count not from the day the payments were stopped, but from the moment the proceedings for the forced collection of alimony payments took place and the person received an official warning about punishment for non-payment of alimony.

Regardless of the subject of the crime, the following types of liability may be applied to guilty persons:

compulsory work for a period of up to 150 hours;
administrative arrest for a border period of 15 days;
penalties up to 20,000 rubles.

In addition, criminal sanctions are also provided. Thus, on July 3, 2016, Article 157 of the Criminal Code of the Russian Federation was amended in terms of the grounds for prosecution. Now, a mandatory condition for the application of punishment is the preliminary bringing of a person to administrative responsibility and only during the period while the person is considered held accountable - that is, for one calendar year.

Committing a crime entails one of the following sanctions:

correctional or forced labor for a maximum of 1 year;
arrest up to 3 months;
imprisonment for no more than 1 year.

Article 157 of the Criminal Code of the Russian Federation does not provide grounds for exemption from liability.

IMPORTANT: Punishment for non-payment of alimony is applied only in case of absolute non-payment of alimony. If the payer is registered for the minimum allowance at the labor exchange and is unemployed, paying alimony from an allowance in the amount of 300 rubles/month, then he is not a defaulter until the presence of other income is proven.

What it is?

Signs of malicious evasion of alimony obligations are indicated in the FSSP letter No. 01-16 dated June 19, 2012 “Methodological recommendations on the procedure for fulfilling the requirements of executive documents on the collection of alimony.” In accordance with paragraph 11, malicious evasion is characterized by:

deliberate failure to comply with a court decision for a long time (more than 4 months) and ignoring warnings from bailiffs;
concealment of real income and property;
change of residence address without notifying the bailiffs of the move;
reporting false information about oneself, property and income;
change of place of work without informing the bailiff;
reluctance to work or register with the labor exchange (we described how alimony is collected from such unemployed debtors here);
failure to fulfill obligations even after being brought to administrative responsibility.

Thus, a person who deliberately avoids fulfilling alimony obligations for 4 months is recognized as a willful defaulter. To bring a person to justice, you will need to collect evidence of intentional evasion .

Our experts have prepared other materials that will help combat evasion of alimony payments, including an article about what a writ of execution is and how alimony will be collected after it is issued.

How to prove malicious evasion of alimony payments

The burden of proving the presence of intent in the violator’s actions falls on the shoulders of the Bailiff Service. And, the main ways to establish grounds for bringing to responsibility include the following:

sending official notices and alerts by registered mail and attaching receipts of notifications to office records;
collection of complete data on place of residence and income;
systematization of information on expenses, including large purchases, trips or loan repayments;
interviewing witnesses, who may be close relatives, neighbors, friends or former employers.

The main task of the evidentiary process is to establish that a person has the opportunity to make at least a small share of deductions, but he does not do this, thereby deliberately evading his obligations to support children.

Lack of work is not considered a valid reason for non-payment of alimony. If the payer is not employed, but is not registered with the Central Employment Service, then the bailiffs will be forced to determine his payments according to the rules for calculating alimony for the unemployed, namely based on the average earnings in the region or country.

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.

Measures to be taken against the evader

Depending on the amount of debt generated, as well as the history of criminal prosecutions, bailiffs may additionally apply other measures of influence aimed at actually collecting the debt.

So, the main ones include:

restriction of travel abroad;
temporary suspension of a driver's license, which does not allow driving vehicles (except for cases where the car is a source of official income);
restricting the use of certain government services.

The measure of influence is chosen individually depending on the circumstances of the case and non-payment, while bringing to responsibility under Art. 5.35.1 of the Code of Administrative Offenses of the Russian Federation or 157 of the Criminal Code of the Russian Federation does not relieve the defaulter from the obligation to repay the existing debt and the penalty for alimony, which can be collected separately.

In the absence of grounds for bringing the defaulter to criminal liability, the applicant (recipient of alimony) remains the right to calculate and collect a penalty for late payment of alimony.

Where can I view the list of alimony debtors?

The bailiff service makes every effort to collect debts; alimony is a socially significant category.

Today, a variety of methods are used to influence would-be debtors. Foreclosing on the debtor's money or property is a classic.

In many cities of the country, photographs of hiding or malicious alimony defaulters are put on public display (by the way, this is not a violation of the law on personal data); the right of debtors to travel abroad is limited and even the deprivation of a driver’s license.

It is not difficult to find out information about existing debts. This can be done in person by visiting the service unit located in your area/city during office hours. If you don’t have time to go, then the “Data Bank of Enforcement Proceedings” service on the website of the Bailiff Service - www.fssprus.ru will help.

Anyone can view information about debts; they are public and in the public domain. The service allows you to find existing debts by last name, first name and patronymic. To obtain more detailed information (if a debt is discovered), you will need to enter your passport details, as well as the code that will be indicated on the page.

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Application for malicious evasion of alimony payment

The responsibility for writing a statement regarding non-payment of funds falls on the shoulders of the recipient of the salary.

Bailiffs are not deprived of the right to independently initiate proceedings to bring the defaulter to justice. However, if the FSSP service is in no hurry to respond to the actions of a malicious evader, the recipient of alimony has the right to submit a corresponding application.

The document must contain the following mandatory information:

the grounds for the emergence and termination of marriage relations, indicating dates and attaching copies of certificates;
information about all minors indicating which of them are common or adopted by the defendant;
the procedure for forming alimony obligations, that is, a court decision or a mutual notarial agreement;
detailed statistics of transfers and the amount of deposits, in what method the money was transferred;
for what amount was the debt generated, for what period;
information to help contact or locate the defendant.

The document must also contain a “Please” section, which reflects the plaintiff’s desire to hold the alimony payer accountable and collect the full amount of the debt in favor of the child. Be sure to display the date of application.

The application is submitted to the bailiff who conducts the proceedings. But, it is advisable to draw up the petition in two copies, on one of which the bailiff marks the receipt of the document.

Depending on the circumstances and the stage of collection of alimony, the applicant may request:

Bringing to administrative responsibility;
Criminal prosecution.

Sample statements for each case are provided below.

Note: In practice, you can submit an application in any form, simply asking that the defaulter be brought to any type of liability, and the bailiff will be obliged to check all the arguments and will himself establish the grounds and possibility for holding him accountable. If there are no grounds, the applicant will be given a written response .

There is no fee for this application.

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.

Arbitrage practice

As practice shows, the court most often takes the side of the alimony payer, especially when it comes to long-term failure to fulfill alimony obligations.

An analysis of judicial practice shows that the satisfaction of a claim must fulfill the following conditions:

Correct establishment of all circumstances of the occurrence of alimony obligations;
Absence of legal grounds to reduce or reduce alimony debt;
Obtaining the most complete data about the attacker’s lifestyle and income;
Drawing up a protocol on an administrative offense no later than one year before filing a petition for criminal prosecution;
The defendant has received at least two warnings about possible criminal liability.

It is also mandatory to interview the violator himself, which makes it possible to verify the absence or presence of mitigating circumstances and good reasons for non-payment of alimony.

Good reasons

Not every case of malicious non-payment is such in fact. The payer may have serious problems that he must solve before continuing to pay money as part of alimony transfers. These reasons include:

A sharp and significant deterioration in financial situation.

Example : A person received 100 thousand monthly and regularly transferred money for child support without any problems. At some point, he was suddenly laid off and the company ceased operations. Now the person has no means of subsistence and must first find a job and then continue making payments.

The payer is seriously ill, which is why he cannot work, does not receive money and, as a result, is not able to pay alimony in the required amount.
The payer has a new family, which also requires maintenance. This reason is usually the basis for reducing the amount of payment, but for completely canceling alimony.
The payer received the status of disabled person.

How to collect a penalty?

As a rule, the court orders the debt to be repaid monthly in equal amounts . However, if the payer evades execution of the court decision, the plaintiff has the right to additionally recover alimony penalties.

More information about the amount of fines can be found in Article 115 of the Family Code of Russia. The law determines that the penalty is 0.5% of the total amount of alimony debt for each day of non-payment.

If the parents enter into a settlement agreement, the amount of the penalty can be agreed upon individually, but it can be increased and not reduced in any way.

To collect a penalty, you must contact the magistrate at the debtor’s place of residence with a statement of claim.

If the final amount of the penalty is too high, the defendant can ask the court to reduce its amount . If the court satisfies the payer's application, the recipient will not receive a refund of the state fee.

That is why experts recommend that when drawing up a statement of claim for the recovery of a penalty, take into account:

the amount of the penalty,
financial situation of the defendant.

If the amount of the fine is quite high, it is better to immediately indicate in the application to reduce the amount of the penalty; read how to do this here.