When parents who are required to pay child support lose their job or face a reduction in income, they often worry about the consequences of not being able to meet their obligations. What happens if I don’t pay child support for my children?
Child support is a right of the children, intended to cover all of their basic needs. Therefore, if one of the parents fails to make the required payments, the other parent can take legal action to recover it.
Child Support: A Legal Obligation Proportional to Income
Child support is a legal duty outlined in Article 142 of the Spanish Civil Code. In a divorce judgment, custody decision, or mutual agreement settlement, it is mandatory to establish the amount of child support to be paid by the parent who does not have primary custody.
This child support must be proportional to the paying parent’s income and the receiving child’s needs. The criteria used by the court to determine the child support amount are:
- The parent’s income.
- The parent’s expenses.
- The child’s needs to maintain a similar lifestyle as before the parents’ separation.
Unexpected situations may arise that prevent the parent from meeting the agreed-upon child support amount, which may require modifications to the original arrangement.
How to Claim Child Support and Consequences of Non-Payment
If child support is not paid, the custodial parent (usually the mother) has several options:
- Extrajudicial Demand If communication between the parties does not result in the resumption of payments, the first step is to send an extrajudicial demand. This is done through a registered mail (burofax) with acknowledgment of receipt, ensuring the other parent has received the communication. The letter should specify a deadline for payment before taking legal action.
- Civil Legal Action If the extrajudicial request does not resolve the issue, the next step is to initiate a civil procedure. This involves filing a claim to enforce payment, requesting the court to seize the debtor’s assets to cover the overdue child support.
In the enforcement claim, unpaid monthly payments and any unadjusted amounts for inflation, as well as any other extraordinary expenses specified in the court judgment, can be included.
To file the enforcement claim, the following documents are required:
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- The judgment or agreement that established the child support amount.
- Bank account statements proving the missed payments.
- A copy of the extrajudicial demand (if it was sent).
Once the claim is accepted, the court will issue an order to enforce payment, which may include interest and costs of around 30% (for example, the court’s execution order can be seen in this link).
When the payment order is received, the paying parent can only oppose it on two specific legal grounds:
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- Proof of payment (such as making a payment to a different account or in cash).
- Evidence that the payment is no longer owed (for example, if a new judgment modifying the original arrangement has been issued).
If no valid opposition is presented, the court will proceed with the asset seizure.
What Assets Can Be Seized? The court can seize various assets, including wages, bank account balances, tax returns, vehicles, or real estate owned by the parent who has failed to pay the child support.
It’s important to note that child support has priority over other debts.
- Criminal Action If two consecutive monthly payments or four non-consecutive payments are missed, a criminal complaint can be filed for non-payment of child support. In addition to asset seizure, the criminal route can lead to a prison sentence ranging from 3 months to 1 year or a fine from 6 to 24 months.
A criminal case will only proceed if it can be proven that the non-payment is intentional. If the paying parent cannot afford the payments, no criminal penalty will apply.
This distinction is crucial, as it determines whether the parent will face a conviction or acquittal in a criminal trial for non-payment of child support.
If it is demonstrated that the parent is unable to pay and is seeking a modification of the original agreement, no criminal penalty will be imposed.
Reducing Child Support Payments
There are no legal excuses for not paying child support. However, if the paying parent’s income has decreased, they can request a modification of the amount. It is not acceptable to simply stop paying. Even in cases of unemployment or a total lack of income, non-payment will accumulate into a debt that the custodial parent can eventually claim.
Consider cases where the paying parent is incarcerated: the obligation to pay child support remains in effect.
To request a modification of the child support amount, the parent must prove that their income has substantially decreased and they can no longer afford the agreed-upon payments.
While the modification process is ongoing, the paying parent is still required to continue making child support payments. If paying the full amount is not possible, a partial payment should be made to show that the parent is not willfully neglecting their obligations, but is genuinely unable to pay the full amount.
Conclusions
In situations where the paying parent has insufficient income, family law attorneys will try to reach an agreement with the other parent to reduce the child support amount.
If no agreement can be reached, a legal procedure to modify the agreement will be initiated in order to adjust the child support amount based on the paying parent’s current income.
If the parents cannot agree on reducing the amount, the custodial parent can pursue enforcement through the court, requesting that the child support be paid (civil route). The court will issue an enforcement order for the claimed amount, with costs and the possibility of asset seizure.
Criminal complaints can be filed for the non-payment of two consecutive monthly payments or four non-consecutive payments.
It’s essential to understand that the criminal route will only succeed if it can be proven that the non-payment was intentional, as this is a key concern for parents facing this situation.