Chapters of the article
Where do I start when seeking alimony?
Whatever the initial situation, the first step is to simply bring the omission to the attention of the defaulter. It doesn’t always have to be bad intent. One phone call or text will not pay and may be the easiest solution. Maybe the reason was just a mis-set standing order or not enough money in one of multiple accounts.
If this easiest route did not lead to your intended goal, the way you arrived at your child support amount is crucial to your next course of action.
If there has only been an out-of-court agreement on child support and you do not have a court order in hand, you can first make a written demand for repayment and resumption of child support payments. Don’t forget to mention the court resolution of the whole matter. The next step can then be a petition for a maintenance order. This should be filed with the district court of the child’s place of residence.
The establishment of maintenance by the court is a prerequisite for obtaining maintenance or punishing the defaulter in the event of long-term or repeated non-payment.
If the court has already approved your agreement or ruled on your maintenance on a motion in the past, your starting position is a little better. The other parent is already legally obliged to pay, and you have more options to recover the maintenance owed. Again, it is tactful to start by writing to the defaulter to warn him of the possibility of enforcement and criminal proceedings. If a solicitor writes the summons and signs it on your behalf, so that your ex-partner can see that you are serious about your intentions, even this step may be enough to make amends.
The next steps may be to file a criminal complaint or a motion to enforce (execute) the judgment.
How can I get the defaulter punished?
When a parent fails to pay child support, this can be classified as a criminal offence. If the obligor fails to pay maintenance for more than four months, he or she can be punished by imprisonment for up to one year. If he has intentionally evaded this obligation, then up to two years. And if the child has been put in danger of distress by such conduct, the defaulter faces up to three years in prison. At the same time, the law allows for so-called “effective contrition” in the case of a child support defaulter, in which case the defaulter does not have to be punished if he or she fulfils the obligation before the judgment is handed down.
As a rule, notorious non-payers of alimony are not aware of the fact that it is a criminal offence until after four months of non-payment. Thus, in practice, they sometimes send a small amount of maintenance once every three months, for example, so that the provisions of the law do not fall on them. However, even in such a case it makes sense to file a criminal complaint. Describe precisely the behaviour of the other parent which may be classified as circumvention of the law.
To file a criminal complaint, go to your local police station. You will need to provide documents relating to child support (i.e. in particular the judgment establishing the support, the divorce decree if applicable, and the child’s birth certificate). After the police have investigated the matter, they will hand it over to the public prosecutor and the court will then decide on the penalty.
Get your child what he or she is entitled to
Is the other parent claiming to have no money and offering you minimum maintenance, or is he or she avoiding his or her maintenance obligation altogether? Leave it to us. We can help you secure the highest possible child support so you don’t have to live on the breadline.
How can I recover maintenance owed?
Punishing a parent who fails to meet his or her child support obligation will not in itself bring you the funds that are due to your child. There are other procedures for recovering child support through the courts. The advantage is that you do not have to wait for non-payment of four child support payments as in a criminal case.
Maintenance that has not been paid can be recovered either in enforcement proceedings under the Civil Procedure Code or in enforcement proceedings.
The latter type of proceedings is more common and is also considered more efficient. The application for enforcement proceedings is filed with the bailiff. Here, too, the possibility of voluntary fulfilment of the obligation is allowed. The bailiff then has a number of options for securing maintenance for your child.
This can be done, for example:
- by deductions from wages,
- by seizing a bank account – the bank will block the amount due on demand,
- by seizing and selling the property (this would only be done for large sums owed),
- seizure and sale of movable property,
- confiscation of a driving licence (this is an indirect execution to force the debtor to pay by restricting certain freedoms).
The costs of the execution will be borne by the debtor.
What if the borrower is in foreclosure or insolvency?
There can be many reasons for non-payment of maintenance. It may be a kind of revenge against the former spouse (although sadly the child is the main victim of this revenge) and it may also be related to the parent’s overall financial situation. For example, if the other parent is in debt and is paying mainly to creditors, whom he or she fears the worse consequences of non-payment.
If the debtor is already in foreclosure, you have an advantage over other creditors. Alimony is considered a priority debt, or it takes priority over other debts. In the case of wage garnishment, maintenance claims are satisfied not from one-third but from two-thirds of the net wages after deduction of the amount not subject to garnishment.
If you think your former partner is insolvent, check the information free of charge and online in the insolvency register. If your suspicions are confirmed, take your claim to his insolvency practitioner. In principle, however, nothing should prevent the debtor from paying maintenance. Although he is generally not allowed to dispose of his property in this case, this restriction does not apply to maintenance.
Don’t delay recovery
Believing your ex-partner’s promises to pay up quickly may be commendable if this is the first instance of non-payment. However, in the case of long-term or repeated non-payment, procrastinating will not win you any points. On the contrary, for minor children, you can only recover unpaid maintenance up to a maximum of three years in arrears, and for adults only from the date you filed the petition. It is therefore definitely not worth waiting.
New help from the state: advance maintenance
Recently, the state has come to the aid of single parents whose former partner fails to pay maintenance for a long time. Since it is primarily the minor child who bears the brunt of such a situation, the parent can now receive a maintenance payment from the state of up to three thousand a month for two years. This money is then recovered by the State itself from the defaulter.