Legal consequences of non-payment of maintenance payments

The non-payment of alimony provided for in most separation and divorce agreements can have serious consequences. However, many people are unclear to what extent, which is why, on this occasion, we have decided to address the issue in depth.

What is meant by non-payment of maintenance?

The maintenance allowance is a figure included in the regulatory agreements governing separations and divorces with minor or dependent children. Through it, the non-custodial parent must cover the part of the basic and daily expenses of his or her descendant that corresponds to him or her.

However, in order for it to be understood that there has been a non-payment, it is necessary that the person who has the obligation to pay it does not do so in two consecutive months or in four alternate months within a period of 12 months. This is specified in Article 227 of the Penal Code, which provides for prison sentences of between three months and one year or fines of between six and twenty-four months.

Essential requirements for the offence of non-payment of pensions

As mentioned above, the Penal Code provides for the possibility of imprisonment for non-payment of alimony, so it is something to be careful about. However, the only requirement for determining that this offence has been committed is not the failure to pay for two consecutive months or four alternate months within a period of twelve months; there are two others that must be known:

• There must be a mutually-agreed regulatory agreement approved or approved by a court ruling that establishes the obligation to pay child support.
• The non-payment must have occurred voluntarily. That is to say, that it has not been motivated by a precarious economic situation.

For example, a person who receives a salary and has sufficient income can commit an offence of non-payment of maintenance. On the other hand, a person who has lost his job, has exhausted his unemployment benefit and lacks additional financial resources cannot. Therefore, for such an offence to exist, it is a 'sine qua non' requirement that there is a will to commit the offence.

Therefore, when filing a criminal complaint for non-payment of alimony, this fact must be taken into account. The judge will carry out the necessary investigations to determine its commission or even that of other crimes. The fact is that "hiding" income and assets in order to appear insolvent in the eyes of the courts may lead to a criminal charge of extortion.

What happens if I do not pay child support? Other relevant questions

First of all, it should be noted that the commission of this offence is subject to the statute of limitations. Therefore, the criminal complaint for non-payment of alimony must be filed in court within five years of the date on which the event ceased to occur.

For example, it is possible that an ex-spouse has failed to pay the alimony due for six consecutive months and has not tried to pay it afterwards. The limitation period will start to run from the last month in which the non-payment occurred, not from the first month.

Does the debt have to be paid?

Of course it is. What is more, the judge will take whatever measures he deems appropriate to ensure that the debtor does so. For example, by seizing his or her assets, paycheck and bank account for non-payment of maintenance. In addition, he or she will have to pay interest and court costs.

The payment of the debt is a civil matter. Therefore, the obligation to pay the debt does not exempt the defendant from facing a fine or imprisonment for non-payment of alimony.

Can other amounts be claimed?

This offence does not only concern the amount of maintenance. For example, it can also concern the non-payment of the corresponding part of the mortgage or the rent for the residence where the child lives.

In the event that the debtor continues not to pay the maintenance during the court proceedings, the monthly amounts will be added to the debt. In other words, the amount specified in the claim can be modified until it reflects reality on the day the judgment is issued.

That said, it is clear that one should think twice about not paying alimony, especially if one does so of one's own free will and has sufficient means to do so. If you go to court, it will end up being very expensive. If there is any doubt as to whether or not the offence is being committed, the best thing to do is to go to a family lawyer to make sure.

In our law firm we have lawyers in Madrid who are specialists in this area, if you are not in Madrid we also have our online lawyer consultation service.