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Non-payment of child maintenance
on the Costa del Sol (Torremolinos and Marbella offices) and Ibiza

 

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Expert Lawyers in Child Maintenance Payments

Civil Claim or Criminal Complaint

After a divorce, it is not uncommon for non-payment of child maintenance to occur. These situations have become more frequent in recent years, especially due to economic crises. At our law firm in Torremolinos and Fuengirola, one of the most common questions we receive is whether it is necessary to file a claim for unpaid child maintenance and what the available legal options are.

According to the Spanish Penal Code, failure to pay child maintenance for two consecutive months or four non-consecutive months is classified as a criminal offence.

If you are dealing with non-payment of child maintenance, do not hesitate to contact our team of expert lawyers. We will guide you through the process and help you take the most appropriate legal action for your case.

 

We are your trusted lawyers

Choose experience and professionalism

At Toscanolex, we are here to help. We are a leading law firm with extensive experience in family law. Whether you need to file a claim for unpaid child maintenance or are dealing with a divorce, you will have the full legal support of a specialist divorce lawyer.

To ensure that your claim has the intended impact that the person ordered to pay child maintenance does so or at least stops breaching their obligations  it is essential to thoroughly study your case. Our approach is to be practical, strategic, and focused on getting you the result the judge has already ruled in your favour. This process is not about harming the other party but about ensuring compliance with a court order. For this reason, it is crucial to have the support and guidance of a specialist divorce lawyer.

 

Determining a fair child maintenance payment is essential to guarantee the well-being of children after a separation. Child maintenance is regulated under Article 142 of the Spanish Civil Code and covers everything necessary for the child’s subsistence, clothing, medical care, and education. Both parents are legally required to support their children financially.

It is important to distinguish between child maintenance payments and extraordinary expenses. If a separation or divorce decree has been issued and custody is granted to one parent, the non-custodial parent is obligated to pay child maintenance.

If child maintenance payments are not made, there are two legal pathways to claim them:

  • Civil Route: Enforcement of child maintenance payments Through this route, enforcement measures are taken against the non-paying parent. These measures may include the seizure of bank accounts, wages, pensions, vehicles, real estate, and tax refunds.
  •  Criminal Route: Criminal offence of non-payment of child maintenance Non-payment of child maintenance is classified as a criminal offence under Article 227 of the Spanish Penal Code. It occurs when a parent fails to pay child maintenance for 2 consecutive months or 4 non-consecutive months. Penalties for this offence range from 3 months to 1 year in prison, or fines that must be paid over a period of 6 to 24 months. This legal route serves as a powerful tool to enforce compliance with child maintenance obligations.

 

At Toscanolex, we offer expert legal advice and support in calculating and adjusting child maintenance payments based on the specific family situation. We advocate for your rights during the initial establishment of child maintenance, as well as during modifications or claims for non-payment, always prioritising the child’s best interests and ensuring compliance with obligations:

 

Calculation and Establishment:

We help determine a fair child maintenance payment based on the child’s needs and the parents’ financial capacities. Our experienced family lawyers analyse the situation and ensure that the payment is both just and proportionate.

Modification of Child Maintenance

We handle requests to increase or reduce maintenance payments if there are changes in economic or personal circumstances. This could involve a parent’s loss of employment, change in financial situation, or new family responsibilities.

Claims for Non-Payment

We initiate legal actions to ensure compliance with child maintenance obligations. This includes enforcing seizure measures and pursuing both civil and criminal claims to recover unpaid maintenance. Our goal is to secure financial support for the child as quickly and efficiently as possible.

Termination of Child Maintenance

We provide legal guidance on when and how child maintenance payments can be legally terminated. This could be due to the child becoming financially independent, reaching a certain age, or other qualifying factors.

What should I do in case of non-payment of child support?

Claiming unpaid child support amounts

Initially, it is advisable to avoid legal proceedings, with the amicable route being the most convenient. Try to reach an agreement with your ex-partner to resolve this situation. If no agreement is reached, it is recommended to request payment in a formal way (sending a registered letter).

 

Filing a court order for the execution of the child support payment

If your ex-partner does not make the payment voluntarily, there is no other option but to go through the judicial system. If your children are of legal age, they must be the ones to claim the unpaid amounts. The Public Prosecutor’s Office can also take action.

The claim will be made through a court order for the enforcement of the child support payment. The time limit for filing the claim is 5 years from the date of non-payment. The intervention of a lawyer and a legal representative will be necessary.

 

Requesting property seizure and imposition of coercive fines

Non-payment of child support may lead to the seizure of the debtor’s assets. In the enforcement claim, we will list the debtor’s assets that can be seized. If there is no knowledge of the assets, a search for your ex-partner’s assets can be requested.

The judge will be responsible for ordering the seizure of the debtor’s assets, such as wages, bank accounts, real estate, etc.

You also have the right to request the imposition of coercive fines if there is repeated non-compliance with the payment obligation. These fines usually amount to 20% of the monthly amount owed or a 50% fine of the total amount owed.

 

Filing a complaint for family abandonment

If the debtor fails to pay child support for 2 consecutive months or 4 non-consecutive months, a complaint can be filed through the criminal justice system for the crime of family abandonment. The penalty for this type of offense can be imprisonment from 3 months to 1 year or a fine from 6 to 24 months.

To file this complaint, it is necessary that the debtor, even though capable of making the payments, refuses to comply with the court-ordered child support. Intentional behavior (dolus) is required.

Are there reasons that justify non-payment of child support?

There are no valid reasons for non-payment of child support. The purpose of child support is the well-being of the children. Once a court has ordered the payment of child support, it is an obligation that must be fulfilled in all cases.

 

It is common for the person obligated to pay child support to stop making payments, claiming they are not allowed to see their children or that the custodial parent spends the money on personal expenses. However, these reasons do not exempt the obligated parent from continuing to pay child support.

 

Similarly, unemployment does not justify non-payment of child support. What can be requested is a modification of the child support amount in justified cases, such as unemployment, which can be demonstrated as a valid reason.

What expenses are included in child support?

In this regard, we can distinguish between expenses that are included and those that are not included in the child support:

 

Included Expenses

These expenses are those established by the court, which include ordinary costs necessary for the children’s support. Ordinary expenses include, but are not limited to, a suitable home, food, medical assistance, educational expenses, personal belongings, among others.

The parent obligated to pay child support is the one without custody of the children. Even during vacations, when the children are with the non-custodial parent, they must still make these payments.

The court’s ruling will set the amount of child support for these ordinary expenses.

 

Non-Included Expenses

Expenses not included in child support are referred to as “extraordinary” expenses. These are costs that cannot be anticipated when the court ruling is issued.

Such expenses may include extracurricular activities, medical expenses not covered by insurance, support classes, etc.

Extraordinary expenses are to be paid by both parents. The divorce judgment will typically specify the percentage allocated to each parent, usually 50%. This payment can also be claimed if the other parent does not fulfill their obligation.

Do you need help?

Rely on Toscanolex Lawyers.