October 28, 2020

Notice to separated parents: staying unemployed does not exempt child or ex-spouse from paying child support | My rights



The measures to combat the health crisis of Covid-19 has had a full impact on the household economy. An especially difficult circumstance for many separated or divorced parents, who have many doubts about how to manage their obligations to minors during the crisis. Family attorneys, who appeal to parental responsibility, are receiving multiple inquiries about what to do with the children’s pension these months.

Among other issues, parents ask if a bad economic situation allows the payment to be postponed or to reduce its amount, given that, now, minors have less expenses (dining room, after-school, etc.). In addition, experts warn that the consequences for failing to comply with this obligation can range from garnishment of wages or subsidy to even prison terms. These are the answers to some of the most frequent questions.

I have lost my job: can I stop paying the pension?

No. The parents must continue to comply with the provisions of the regulatory agreement. This is not suspended during the state of alarm, and, therefore, they must pay the amount set for child support on time. In no case, they add, can they unilaterally stop paying the pension, at the risk of encountering a civil claim or even being criminally denounced. “The payment of alimony continues to be a judicial obligation that must be fulfilled,” says Paloma Zabalgo, an expert lawyer in family law.

The same happens with the compensatory pension: while there is a sentence that establishes it, the ex-spouse is obliged to pay it. The difference is that this pension, by means of which the ex-spouse who is left in a worse economic situation by separation or divorce, is not privileged when it comes to claiming it.

On the other hand, it is recommended that any temporary pact they reach be reflected in writing, since any definitive change must be established through the court.

What if I don’t have enough income?

A modification of the sentence can be requested. However, it must be a situation that is maintained over time, since the loss of economic capacity must be proven. In the current situation, in which the person liable for payment may have seen his income decreased, he will have to continue paying the pension for the time being.

If the circumstances persist, then you can request a review of the amount, which is never retroactive. It should be borne in mind, the lawyer points out, that, in the current state of alarm, it will be difficult for these files to modify alimony to be admitted, unless a situation of need is justified.

Can I subtract the expenses of dining room, dance classes, etc.?

No, the amount of the pension cannot be reduced. As Zabalgo warns, this is established in a court ruling, which must be complied with in the terms in which they were issued. “The alimony is a fixed amount, in which, in fact, certain expenses are taken into account for its establishment, but which must be paid in full.” In these circumstances, he reflects, the cost of the dining room may not exist, but “most likely the cost of food at home is much higher, like that of supplies, and they could not be added either.” Different question would be if they are extraordinary expenses, which are not included in the monthly pension.

My ex-partner has not passed the pension to me: what do I do?

The law contemplates two ways to deal with this situation: the civil claim or, in more serious cases, the criminal complaint. The most common is to go to civil law, through a process known as the execution of sentence, in which the intervention of a lawyer and attorney is necessary. The competent court will be the one that issued the resolution that establishes the obligation to pay, and the term to claim is five years from the date of non-payment.

In the current state of alarm, Zabalgo understands, given that the judicial activity is suspended, no demands for execution can be presented, unless that non-compliance could generate a risk situation for minors.

How do I prove non-payment?

It is not necessary. In a process of executing alimony, Zabalgo explains, it is up to the debtor to prove that he has made the payment. In any case, it is advisable to inform you by sending a mail, a message from WhatsApp, or other means, that the payment will be demanded judicially, “so that he is aware and can avoid the litigation,” adds the lawyer.

The burofax, which is required, on the other hand, in other procedures to prove that the amount has been claimed before filing the claim, is not, in this case, necessary to open the process.

What if the situation requires urgent action?

In that case, if there is a certain and serious risk for minors, an urgent procedure could be presented, under article 158 of the Civil Code, in which the judge can establish “the appropriate measures to ensure the provision of food and provide to the future needs of the child ”. Even, adds the lawyer, a situation of neglect of minors can occur and the Administration must take charge of them. Although, he adds, they are very exceptional and specific situations.

What consequences can non-compliance have? Can my garnishment be garnished?

Yes. Once the judgment execution process is completed, the garnishment of the debtor’s assets can be ordered. You can garnish bank accounts, or the entire salary, even if you collect the interprofessional minimum wage. As the lawyer explains, alimony has a privileged or preferential credit character, since it covers the primary needs of the children. Pursuant to this premise, it is understood that the amounts paid by the ERTE can also be garnished, “without prejudice that the courts or tribunals can moderate this obligation”, for example, establishing a monthly amount to garnish, until reaching the totality of the debt.

In case of repeated non-compliance, you can also request the imposition of a fine that may be 20% monthly, or a single one of 50% of the amount due. In addition, the most common is that the sentence orders the defaulter to pay the costs of the process.

Can you file a criminal complaint?

If, when the person obliged to pay the pension has stopped paying two consecutive months or accumulates delays of four alternate months, he can be denounced for abandonment of the family. This crime, provided for in article 227 of the Penal Code, is punishable by imprisonment of three months to one year or a fine of six to 24 months. Normally, unless the convicted person is a repeat offender, the court will suspend the prison sentence, on condition that he / she pays what is owed.

As Fátima Rodríguez explains, in addition to the breach of a firm resolution, it is also necessary that it be voluntary and conscious. In other words, you don’t pay “because you don’t want to,” not because you can’t.

Can i go to jail

Normally, unless the convicted person is a repeat offender, Rodríguez explains, the court will suspend the prison sentence, on condition that he pays what is owed. It is important to indicate that a conviction supposes the existence of a criminal record, which will only be canceled once the time set in the resolution has expired. This situation may be relevant if this or another crime punishable by imprisonment is re-committed, because, then, he is considered a repeat offender.

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