Malicious evasion of alimony payments: concept, punishment

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Most persons obligated to pay alimony seek to evade this unpleasant obligation. For these cases, the current legislation provides for a certain punishment, depending on the severity of the offense. And the most serious is considered to be malicious evasion of alimony payments.

What is considered malicious evasion of alimony payments?

Evasion of payment of maintenance funds should be understood as:

• direct refusal to pay alimony
• failure to inform the bailiff or the person receiving alimony about dismissal
• failure to inform about a new job
• concealing your earnings, including additional earnings or other income

The concept of malicious evasion of alimony payment is not defined in the law and is evaluative. In judicial practice, this characteristic is usually understood as:

1. repetition of a similar crime
2. evasion of payment despite appropriate warning
3. search for a person obligated to pay alimony, etc.

Alimony payers very often hide their income, for some reason they immediately become officially unemployed and have absolutely no property in their property. And the bailiff simply throws up his hands, since he cannot do anything, but in the end - there is a debt, but there seems to be nothing to pay it with, and the question arises: “How to force the draft dodger to fulfill his obligations?” There are ways and let’s look at them individually with the help of our lawyer at the Law Office “Katsailidi and Partners”:

How to write a letter to bailiffs?

Sometimes, after payments have stopped, it is enough to contact the FSSP with an official letter , after which measures will be taken to eliminate the debt, since this service has broad powers.

Such a statement is written in free form, with the obligatory entry of information:

1. The “header” indicates the name of the territorial body of the FSSP, the name of the bailiff and the applicant.
2. The main part contains the details of the writ of execution according to which alimony was collected.
3. What was the amount of current payments (if they occurred). When payments stopped coming in. If known, for what reason.
4. The petition part indicates a request to determine the amount of debt and its liquidation.
5. Finally, the date and signature of the applicant are placed.

There is no need to carry out debt settlements - this is the competence of the bailiff, including when submitting a report for judicial or administrative consideration.

ATTENTION ! If the debt is associated with a negligent attitude towards one’s duties as a bailiff, you can file a complaint with the head of the department or with the prosecutor’s office.

For what arrears of alimony can they be imprisoned?

Most likely, alimony debtors have thought about the question of how much alimony debt they should have in order to be prosecuted and sentenced to imprisonment?

There is no clear answer to this question, since the sanction of Art. 157 of the Criminal Code of the Russian Federation does not depend on the amount of alimony debt and provides, in addition to imprisonment, other punishments, for example, correctional labor.

Based on the emerging judicial practice, the court imposes imprisonment if the debtor was brought to administrative responsibility for failure to pay alimony and, despite this fact, never began to pay alimony, was not officially employed and did not take measures to find employment, and did not pay alimony for a long time without good reason. .

If you look at the information on the criminal cases considered, the amount of alimony debt was more than 200 thousand rubles, more than 600 thousand rubles, more than 800 thousand rubles. However, you should not hope that if the amount of debt is, for example, 100 thousand rubles, then nothing will happen. In the framework of criminal cases in which imprisonment was imposed on alimony defaulters, it was established that the defendants were brought to administrative responsibility in connection with non-payment of alimony, however, they did not draw the proper conclusions for themselves. In addition, these individuals already had a criminal record.

ADVICE: if the debtor is held liable under Art. 5.35.1 of the Code of Administrative Offenses of the Russian Federation, in order to avoid future criminal liability, it is necessary to take real measures aimed at paying alimony.

How to sue?

In this case, two action algorithms are distinguished. One of them applies if there was an oral agreement between the spouses regarding the maintenance of children, which ceased to be valid and payments stopped. Here you will need to attract him to payment officially. In the second case, violations are associated with refusal to execute a previously made court decision, which requires strengthening measures of influence on the unscrupulous debtor.

Read more about how to collect alimony from your ex-husband in this article.

Statement of evasion

Such an application is submitted to the magistrate at the parent’s place of residence , accompanied by a package of documents and a receipt for payment of a fee in the amount of 300 rubles.

1. The text of the application must contain a header with the name of the jurisdictional authority and information about the magistrate and parents.
2. The informational part must include:
   Time to (approximate or exact date) the child’s parents entered into marriage.
3. Marriage certificate details.
4. If the marriage is dissolved - the date of its dissolution and details of the divorce certificate.
5. Did the husband support the family before the divorce?
6. What verbal agreements did the parents have about the maintenance of the child, or did they not exist?
7. Last name, first name, patronymic of the child, date and place of birth, details of the birth certificate.
8. If there are several children, information about them is given in one application as a list.
9. Further, after the wording “I ask,” a petition part is entered, which sets out a request to the magistrate to appoint alimony in the order of writ proceedings, indicating information about the spouse and child for whom they are requested.
10. The date is signed and a list of attached documents is given. Attached is a package of documents:
    applicant's passport;
11. certificate of marriage or divorce;
12. birth certificates of joint children;
13. copies of passports of children over 14 years of age;
14. certificate of family composition;
15. certificate from the spouse’s place of work;
16. account number.

REFERENCE ! In this case, only the collection of a proportionate percentage from all types of earnings is allowed.

Claim to initiate a criminal case

If the procedure presented above has already been carried out, and the spouse received a writ of execution, or the parties entered into a notarial agreement on the payment of alimony (Article 100 of the RF IC), it is permissible to initiate criminal proceedings. This requires:

• notification of the parent about the assignment of child support;
• at least twice notification of the debt and the resulting liability;
• collection of evidence by the bailiff for evasion of payments;
• filing an application with the court from the recipient of alimony;
• documentation package application.

The application is written in a form similar to other statements of claim. After entering the “header” and the name of the document, an informational part is drawn up, which requires the following:

• Laconically – information about the conclusion and/or divorce of a marriage, details of the certificate. If paternity is established by the court - these circumstances, the date and name of the court that made the decision, the registration number of the extract.
• Information about joint children, details of their birth certificates.
• Where and when the writ of execution was issued, its details.
• Which bailiff worked with the defaulter, with reference to data from his report/report.
• How payments were received, the defaulter’s attitude towards his alimony obligations.

Next, the wording “Please” is indicated, followed by a request to the court. It can be expressed in a request:

1. bring to criminal liability;
2. oblige to pay alimony;
3. put on the wanted list;
4. pay the debt at the expense of movable or immovable property.

Depending on the circumstances, the court makes an appropriate decision.

How to avoid criminal penalties for non-payment of alimony?

If you transfer money in cash, take a receipt from your legal representative confirming receipt of money to pay alimony. It is better, of course, to make transfers in non-cash form, so that later you will be able to obtain a bank statement and prove the fact of transferring alimony.

Also, if it is possible to pay off the debt, then it is necessary to do so. If you can’t pay off your debt, you should pay at least some money. This fact will indicate that measures have been taken to pay alimony.

In addition, the alimony debtor must take measures to provide, if possible, other assistance to his children. In a situation where the debtor has lost his job, it is necessary to register with the employment center to look for work. If, nevertheless, a criminal case is initiated and the debtor is brought to criminal liability for the first time, there is a chance that he will be released from liability with a court fine, but for this it will be necessary to repay the amount of the debt.

USEFUL : watch the video with additional advice from a lawyer on protecting the rights of the accused

What does a citizen face?

The consequences for the defaulter are as follows:

Look, the amount of child support in the new law for 2020.
Can they go to jail for failure to pay child support in 2020? Find it at the link. In the process of the described manipulations, the debt is established, including a penalty of 0.5% for each day of delay. The bailiff also carries out other actions, for example, he can give the draft dodger a referral to the employment center.

What penalties face persistent defaulters?

The court will oblige willful defaulters to pay the entire alimony debt, with interest. Prosecution for non-payment of alimony involves the most severe punishment - imprisonment for up to 6 months, as well as conditional imprisonment for up to 1 year or correctional labor. Plus, criminal prosecution for non-payment of alimony also provides for deprivation of parental rights without exemption from responsibility for the financial support of one or more children (more information about how to deprive parental rights at the link).

Very often, debtors resort to concealing their real income. In such cases, in order to bring the debtor to criminal liability for failure to pay alimony, the plaintiff must provide evidence of this fact to the court. After this, the court will decide to oblige the debtor to pay the entire accumulated debt and impose penalties on him.

Today, criminal prosecution for non-payment of child support is the most effective tool in the fight against unscrupulous parents. Exemption from criminal liability for non-payment of alimony occurs only when payments for debts are made by the debtor in full. As a general rule, neither pregnancy of the defendant’s wife or the defendant himself, nor disability, exempts from this obligation.

How to prove

After the recipient of alimony becomes aware that funds are not being transferred to the specified account, he must contact the citizen and find out the reason. If communication is impossible, he contacts the bailiff department with a statement/petition to hold the person accountable.

The bailiff must interview the applicant for information known to him and take all measures to find the debtor and his property. Within the limits of available powers, the bailiff carries out procedural actions. To begin with, he calls the defaulter and gives him notices of prosecution, finds out the reason for non-payment. Further, if the defendant does not appear, the bailiff has the right to take administrative measures, for example, to seize accounts opened in banks.

Evidence that child support is not being paid will be:

• an account statement to which they should be transferred, showing the lack of receipts;
• correspondence between the claimant and the debtor;
• if the parent previously paid for some of the child’s needs, provide receipts that this is now done by the second parent with whom the minor lives, etc.

The recipient of alimony must prove, in addition, the very fact that the citizen is obliged to pay alimony. That is, provide a court decision, agreement, extracts confirming that the child lives with his mother, etc.

Exemption from payment of alimony debts

Sometimes such circumstances happen in life that a citizen, no matter how much he or she wants, cannot pay alimony, for example, in the case of a serious illness. In this case, the law provides for the possibility of filing a claim with the court for release in whole or in part from arrears of alimony payments.

Criminal and administrative liability arises precisely for malicious evasion of alimony payments, so it must be intentional. It is worth noting that exemption from payment of alimony debts can also be carried out by agreement of the parties, except in cases where alimony is paid for the maintenance of minor children.

ANALYSIS OF THE CRIME

Object of crime

In the science of criminal law, there are several types of objects: general, generic, specific and direct.

The general object of a crime represents the entire set of social relations that are protected by criminal law, and makes it possible to distinguish a criminal act from a non-criminal one.

The generic object of a crime denotes a group of social relations that are homogeneous in nature and are therefore protected by a single set of criminal law norms. For a crime under Part 1 of Art. 157 of the Criminal Code of the Russian Federation, the interests of the individual are considered the generic object

A specific object is an integral part of a generic object, which includes a set of similar social relations that are encroached upon by a group of similar acts. The specific object of this crime is the interests of the family and minors.

The direct object is understood as a specific social relationship against which a certain attack is being committed. For a crime under Part 1 of Art. 157 of the Criminal Code of the Russian Federation, these are social relations related to the right of minors to material well-being, since parents’ evasion of child support significantly reduces the level of their living conditions, negatively affects their health, and disrupts the normal development of the child.

Let us note that this crime also causes harm to justice, since failure by parents to pay alimony means ignoring the court decision. In this case, Art. 315 of the Criminal Code of the Russian Federation (failure to comply with a court sentence, court decision or other judicial act) cannot be imputed, since it provides for a special subject - a representative of the government, a civil servant or an employee of a local government body.

Thus, relations in the field of administration of justice and execution of a court decision can be considered an additional direct object of parents’ malicious evasion from paying alimony

Victims in this composition

The victims of this crime are minors, as well as disabled people who have reached the age of majority, whose maintenance, despite the court’s decision, is maliciously avoided by their parents.

The subject of the act in question is money that parents, in accordance with the procedure established by law, are obliged to provide to children on the basis of a court decision.

Objective side

The objective side of a crime is a system of signs with which one can determine the criminal legal significance of a socially dangerous act as an external behavioral manifestation of a subject. It is formed by an exhaustive list of elements: the act (action or inaction), consequences, cause-and-effect relationship between the act and the consequences, time, place, method, setting, instruments and means of committing the crime...

Considering the objective side of this crime, it should be noted the provision of Art. 80 of the RF IC, according to which alimony is paid: 1) by agreement of the parties; 2) by court decision. The disposition of this composition establishes liability specifically for non-payment of alimony on the second basis.

According to many researchers, the objective side of the crime in question is expressed in inaction.

But there is another point of view: parents’ evasion of child support may also consist in their actual non-payment due to a change in place of residence, work, etc. So, by changing, for example, place of residence, a person commits certain actions that allow him to evade paying alimony.

Thus, a crime can be committed through both action and omission. In this case, evasion is understood not only as a direct refusal to pay alimony for the maintenance of children by a court decision, but also by a person concealing his actual earnings, changing his place of work or place of residence in order to avoid deduction under a writ of execution, evading work for the same purpose, etc. .P.

It is also necessary to consider such a concept as maintenance of minor children. One of the meanings of the concept “content” is “funds that are given to someone to ensure their existence, dependency.” The norm under study uses the concept of “maintenance”, while the RF IC uses the term “alimony”. We can say that the first concept is broader than the second. According to Art. 86 of the RF IC in exceptional circumstances, such as serious illness, injury to minor children or disabled adult children, parents may be called upon by a court decision to participate in bearing additional expenses caused by these circumstances. It should be noted that the fact of evading the maintenance of a minor and the nature of the evasion must be carefully checked by bailiffs.

Maliciousness is an evaluative category, so it is quite difficult to establish clear criteria for defining this concept. In judicial practice, malicious evasion of alimony payments is recognized as cases where a person does not provide assistance in maintaining children for a long time (more than four months) without good reason and his behavior indicates an unwillingness to comply with a court decision.

Based on the norm of Part 1 of Art. 36 Federal Law of 02.10.2007 N 229-FZ evasion can be considered malicious if a person deliberately fails to fulfill the obligations to pay alimony prescribed by a court decision for a long time after a warning by the bailiff about criminal liability, if the debtor has a real opportunity to fulfill this obligation.

Malicious evasion of obligations to pay alimony can also be expressed:

- changing the place of residence without notifying the bailiff;

— entering false information into personal data;

- changing the place of work without notifying the bailiff;

- unwillingness to find a job or refusal to register with the employment center;

- providing false information about your income and property;

- evading the obligation to pay funds for the maintenance of children, despite being held administratively liable for failure to comply with the requirements of the bailiff, obstruction of the legal activities of the bailiff, failure to provide information (information), failure to pay an administrative fine within the period prescribed by the Code of Administrative Offenses of the Russian Federation;

- in disproportionately small payments compared to existing income and the total amount of debt and concealment of income.

It is important to note that one can speak of malice only if the perpetrator has the actual ability to pay alimony. If evasion from paying alimony took place due to a combination of extraordinary life circumstances, then the actions of such a person do not contain signs of this crime.

At the same time, it must be borne in mind that the debtor can also apply to the court for exemption from payment of arrears of alimony if the non-payment is associated with illness, difficult financial situation, or the beginning of cohabitation between the debtor and his child.

The current uncertainty in the interpretation of the criterion of maliciousness of evasion requires the legislative consolidation of this concept, which has been discussed by practitioners for a long time and as already mentioned above.

Subject

The subject of this crime is an individual who has committed a socially dangerous act provided for by criminal law, who has reached the established age, is sane, and, in cases specified in the law, has special characteristics.

The subject of this crime can be parents or adoptive parents. Persons deprived of parental rights are not released from the obligation to support their child, hence they may be held liable for this crime.

It is important to note that parents who maliciously evade paying alimony for minor children, who were found after the child for whom alimony was awarded by the court reached the age of majority, are liable on a general basis, unless the statute of limitations for criminal prosecution has expired.

Thus, in this case the subject is considered special.

The subjective side of a crime should be understood as the mental processes occurring in the consciousness of the perpetrator before and during the commission of a socially dangerous act.

The subjective side of this crime assumes only direct intent and selfish motive. The culprit is aware of his alimony obligation and the existence of a court decision that has entered into legal force and is aware of the maliciousness of his evasion from paying alimony. A selfish motive presupposes a conscious desire to get rid of the fulfillment of material requirements for a given obligation.

Having analyzed this crime, we can conclude that it is ambiguous and difficult to apply. At first glance, this composition is not difficult, but in practice, both interrogators, investigators, prosecutors, and judges are fussing.

In law enforcement practice, evasion from paying child support by a parent previously convicted of this crime is also justifiably recognized as malicious.

Help from a lawyer on alimony in Yekaterinburg

If you have problems with being held accountable and lacking the time and legal skills to fight, then you need to contact us. We have extensive experience in handling cases regarding the execution of decisions to collect funds for the maintenance of both children and disabled parents:

1. Let's analyze the whole story
2. We will offer effective options for solving problems both when working with a bailiff and when contacting law enforcement agencies for criminal prosecution for malicious evasion of alimony payments.
3. We will draw up all procedural documents for protection and represent your interests at all stages.
4. We will provide other legal assistance aimed at protecting the debtor under alimony obligations.

At the same time, you will avoid wasting time figuring out the progress of the case, since we will keep our finger on the pulse, our nerves when communicating with government officials who are in no hurry to help you, and rest assured that we will do everything possible to ensure that your rights are protected .

How to hold a debtor accountable

The algorithm of actions is simple: you need to submit your ID to the Federal Bailiff Service at the debtor’s place of residence. Next, wait some time and write a statement to the same body with a request to resolve the issue of criminal punishment.

The process can be initiated after 4 months. non-payment, but you can wait a longer period - the larger the debt, the harsher the court will be against the culprit.

The executor makes a decision on criminal liability and submits the materials to the FSSP investigator, and from there they go to court. The applicant only needs to monitor the process and get acquainted with the production materials from time to time.

In the process of preparing for the transfer of documents to the court, four subjects closely interact: the bailiff, the FSSP investigator, the head of the department of this body, as well as the claimant directly (an application is required from him).

Types of alimony obligations

In general terms, alimony is usually called the obligation to provide financial support for disabled family members.
The basis for this is the presence of a family relationship between the recipient and the alimony payer. Within the framework of current legislation, the following types of alimony payments are assumed:

• parents in relation to minor children: valid until the recipient turns 18, after this period it applies to disabled people of groups 1, 2 and 3;
• children in relation to disabled parents - here we mean disabled people and people of retirement age, provided that the size of the pension does not reach the subsistence level;
• between spouses - married couples are also obliged to support each other financially, for example, during pregnancy or loss of ability to work.

There is also a fourth group: alimony payers of the second stage, which includes grandchildren, grandparents, sisters and brothers. Alimony obligations may be imposed on other family members, provided that it is impossible to obtain such maintenance from first-priority payers. In addition, collection is possible only in cases where financial situation allows.

Important! The procedure for mutual settlements between the payer and the recipient of alimony can be regulated by mutual consent, certified by a notary, or determined in court.

Does the law allow you not to pay child support?

This practice is indeed allowed. The grounds for legal refusal to pay alimony are:

• the recipient reaches the age of majority;
• challenging kinship;
• adoption of a child;
• other factors, for example, the death of one of the participants: the recipient or the payer.

In addition, the alimony payer can transfer real estate to the recipient free of charge, which can be considered full fulfillment of alimony obligations. This will require mutual consent of the parties and permission from the guardianship authorities.

Who is considered a habitual defaulter?

According to current legislative norms, the concept of “willful defaulter of alimony” no longer exists. This is an outdated term that was in effect until mid-2020. Now there is another terminology, namely: repeated failure to pay child support without good reason. An act will be considered such if it was committed by a person subjected to administrative punishment for an identical offense, if this occurred when the offender was considered subject to administrative punishment.

Signs of evasion of alimony obligations

Object - this can include the interests of the family.
In particular, material relations designed to ensure the moral and physical development of the child or the dignified existence of disabled parents. The objective side is evasion of alimony obligations reached by a notarial agreement of the parties or appointed by a court decision.

Subject - a person who is obliged to pay alimony.

The subjective side is the premeditation of illegal actions. The debtor intentionally fails to fulfill the obligation to support children/parents, having the financial means to do so.