Non-payment of food pension
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Civil demand denounces it as a criminal offence.

After the divorce process it is possible that non-payments of alimony may occur, these scenarios have worsened with the economic crisis and have become more common in divorces, so in our law firm in Torremolinos and Fuengirola we are often asked if it is necessary to start a lawsuit for non-payment of alimony and what are the different ways to do it. The non-payment of 2 consecutive months or 4 non-consecutive months , is considered a crime according to our criminal code.

Do not hesitate to contact our team of lawyers to resolve all your doubts and proceed with the relevant legal actions.

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At Toscanolex, we are here to help you, we are a law firm of reference, whether it is a divorce or a claim for non-payment of alimony, you will have the legal support of a lawyer specialised in divorce. For the claim to have the effect you need, which on this occasion is that the respondent pays the alimony, or at least does not continue to fail to comply with his obligation, we must study your case well, be practical and see what is best for you, because we do not do all this to harm the other, but to obtain what the judge ruled, so it is very important that you get advice from a lawyer specialised in divorces.

It is important for you to know that there are some cases in which it is complicated to prove the defendant’s economic assets, which is why it is very important that the lawyer is fully aware of the route to be used.

What do I do in case of non-payment of maintenance?

Claiming the unpaid amounts of alimony

Initially, it is advisable to avoid legal proceedings, the most convenient way being amicable. Try to reach an agreement with your ex-partner to find a solution to this situation. If no agreement is reached, it is then recommendable to request payment in a reliable manner (sending a burofax).


Application for enforcement of the judgment for non-payment of alimony

If your ex-partner does not voluntarily pay the maintenance owed to your children, there is no other option but to go to court. If your children are over the age of majority, they should be the ones to claim the unpaid amounts. The Public Prosecutor’s Office may also enforce it.


The claim will be made by means of a claim for enforcement of the judgement for non-payment of maintenance. You have 5 years from the date of non-payment of the alimony. The intervention of a lawyer and solicitor will be necessary.


Application in the lawsuit for the seizure of assets and the imposition of restrictive fines

The non-payment of maintenance can lead to the seizure of the assets of the debtor. In the enforceable claim we will indicate the debtor’s assets that are subject to seizure. If you are not aware of the assets, you can request an investigation of your ex-partner’s assets.


The Judge will be in charge of ordering the seizure of the debtor’s assets, such as his salary, bank accounts, real estate, etc.


You also have the right to request the imposition of coercive fines if in your case the obligation to pay is repeatedly breached. These fines can usually be 20% of the monthly amount due or a fine of 50% of the total amount.


Complaint for the crime of abandonment of the family

If the defendant does not pay the maintenance for 2 consecutive months or 4 non-consecutive months, a complaint may be made by criminal proceedings for the crime of abandonment of the family, the penalty for this type of complaint being prison from 3 months to 1 year or a fine of 6 to 24 months.


In order to file this complaint it is necessary that your ex-partner who is obliged to pay, even if he/she is able to do so, is not willing to make the payments stipulated by the sentence. A willful misconduct is required.

Are there grounds for non-payment of maintenance?

Definitely not. The purpose of maintenance is the welfare of the children. When the court decision has imposed the payment of maintenance, it is obligatory to pay it in any case.


It is common that the person obliged to pay child support fails to pay the child support on the grounds that he/she is not allowed to see the children. Other reasons are that they believe that the money is being spent by the custodial parent on personal expenses. These reasons do not exempt the obliged parent from ceasing to pay child maintenance.


Nor does being unemployed justify non-payment of child maintenance. What can be requested is the modification of the child maintenance in justified cases and that can be demonstrated, for example, as we have mentioned above, unemployment.

What are the expenses that are included in maintenance?

In this respect we can differentiate between expenses included and those not included in the maintenance:


Included expenses

These expenses are those fixed by the court and include the ordinary expenses necessary for the maintenance of the children. The ordinary expenses include, among others, decent housing, food, medical assistance, schooling expenses, personal belongings, etc.


The parent who is obliged to pay child maintenance is the parent who does not have custody of the children. Even during holidays, when the children are with the obliged parent, the obliged parent must pay them.


The amount of the maintenance allowance for ordinary expenses shall be fixed in the judgment of the judge.


Expenses not included

The expenses that are not included in the maintenance allowance are the so-called “extraordinary expenses”. These extraordinary expenses are those that cannot be foreseen at the time of the judicial decision.


Such as extracurricular activities, medical expenses not included in an insurance policy, support classes, etc.


Extraordinary expenses are paid by both parents. In the divorce decree it will have been determined what percentage corresponds to each parent, as a general rule it is 50%. This payment can also be claimed if there is non-payment of the percentage corresponding to your ex-partner if he/she does not pay it.

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