alimony FAMILY LAW

Child support enforcement options

alimony FAMILY LAWBearing in mind our many years of practice in the most diverse areas of family law, this time we will share our experience to forced collection of child support as one of the constantly current issues. The reason for writing this text is very simple. Namely, clients often come to us regarding some other family law issue they have, and then through the consultation, we find out that the maintenance debtor has not paid child support for his child/children for months or even years and that the client in this matter do nothing.

If we were to make a rough division of the answers to the question of why no action is taken regarding the collection of due and unpaid child support amounts, the answers would be as follows:

  • The client does not know how it can be done
  • The client thinks that it is an expensive and time-consuming procedure
  • The client thinks that it is necessary for non-payment to be repeated a certain number of times or to last a certain period in order to be able to initiate some procedure
  • The client thinks that the maintenance debtor will change his mind at some point in this regard, that is, that he will still start paying child support

This article will cover one of the fastest and most effective ways to collect child support, while in the next article we will refer to some other, perhaps not so fast, but equally effective mechanisms.

The fastest and most effective procedure for the collection of child support is certainly the procedure of compulsory collection of due and unpaid amounts of legal support, also known as the enforcement procedure for the collection of child support.

The enforcement procedure is regulated by the Law on Enforcement (hereinafter: “LoE”), with the proviso that if some issues are not regulated by this law, the Law on Civil Procedure is applied accordingly.

LOE defines the enforcement procedure as a procedure in which courts and public bailiffs compulsorily settle the claims of enforcement creditors based on enforceable and authentic documents.

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    When is enforcement action initiated?

    In civil Serbian law, in addition to enforcement, also recognizes non-litigation and litigation proceedings. These are three different procedures governed by different laws. Nevertheless, there is a certain connection between them, especially if we look at the relationship between litigation and enforcement proceedings.

    Family disputes are civil proceedings. For the purposes of this text, they primarily mean procedures in which it is decided to exercise parental rights, determine the amount of maintenance (when maintenance is requested by an adult) or change the decision on the amount of maintenance. These proceedings, if the claim is founded, end with the passing of a judgment by which the defendant obligates himself to pay certain sums of money at the beginning of each month for the current month in the name of support for his child/children.

    A judgment is an enforceable document, and a claim from a judgment is a claim of an enforceable creditor based on an enforceable document.

    Therefore, a prerequisite for starting the procedure for forced collection of legal maintenance is the previous existence of a civil procedure that ended with the passing of a verdict – an enforcement document.

    Law on enforcement states that court decisions – in this case, judgments – must be enforceable to be considered enforceable documents and to initiate a forced collection procedure based on them. To explain at what moment the judgment becomes enforceable, we must also touch on the concept of the finality of the judgment. For a judgment to become enforceable, it must first become legally binding.

    Namely, for every judgment made in any type of procedure, there is a possibility of filing an appeal. The same is true in the family disputes. The judgment becomes legally binding if it can no longer be challenged by regular legal remedies, that is, if an appeal can no longer be filed against that decision.

    Thus, the judgment in family disputes (as well as in all other civil proceedings) becomes legally binding:

    • if the judgment was rendered by the second-instance court,
    • if the person who has the right to appeal waived that right,
    • if the appeal was filed within the statutory deadline but was subsequently withdrawn, as well as
    • if the deadline for submitting an appeal has passed, and it has not been filed.

    Enforceability in family disputes occurs at a slightly different moment than in other disputes – it becomes enforceable on the day of entry into legal force. In other words, if no appeal has been filed against the judgment or that appeal can no longer be filed, the judgment becomes both legally binding and enforceable on the same day.

    For such a judgment to be eligible for enforcement proceedings based on it, it is necessary to request a confirmation of this upon the occurrence of legal force and enforceability.

    At the request of the party, the court, public notary or other authority that issued the enforcement document in the first instance, issues a certificate of finality (by which it is determined that the specific decision is final) – the so-called clause of legal force and confirmation of enforceability (by which it is determined that a specific decision has become enforceable, that is, eligible for enforcement) – the so-called enforceability clause.

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    When can I initiate enforcement proceedings?

    You have conducted some of the procedures listed above, you have a legally binding and enforceable judgment in your hands, and you finally think that you can breathe a sigh of relief and that you will no longer “have to deal with courts and lawyers”, but the maintenance debtor does not respect the judgment. What then? Can you start enforcement immediately? Can you start such a procedure “for the sake of prevention” or do you have to wait for some time to pass? If you have to wait, how long should you wait?

    These are all questions that bother anyone who has encountered difficulties in collecting child support.

    Enforcement proceedings are initiated when the debtor does not comply with the obligation established by a court decision – judgment. This further means that the creditor – the recipient of maintenance or the legal representative of the recipient of maintenance may or may not initiate it. If, on the other hand, he decides to “make the debtor pay what he owes”, it is up to the maintenance recipient to initiate enforcement proceedings.

    As we have already clarified, in order to be able to talk about the initiation of the procedure for forced collection of child support, it is necessary to:

    • the existence of civil proceedings, which are initiated by submitting a lawsuit to the competent court i
    • judgment rendered in that procedure, as an enforcement document.

    In addition, it is necessary that the debtor does not comply with the judgment in the part that concerns his obligation to pay child support.

    This disrespect for the judgment can be manifested in several ways:

    • the child support debtor did not pay child support within the period specified by the judgment already in the first month after the judgment was passed
    • the maintenance debtor did not pay child support at all in the first month after the judgment was passed
    • the child support debtor has not paid the child support determined by the judgment for months (or even years) after the judgment was passed
    • the maintenance debtor pays smaller amounts of child support than those determined by the judgment

    From this, it can be concluded that even failure to meet the deadline for payment of child support is enough to start the enforcement procedure. In simpler terms, if the child should receive child support by 5th in the month for the current month, you can start the enforcement procedure as early as the 6th of the month.

    The same is the case with one month in which the debtor did not pay child support. Therefore, it is enough that the debtor does not pay child support for the current month already in the first month after the judgment is passed, the enforcement procedure can be initiated just as if he had not paid it for years.

    Of course, the most common case is that clients come with the intention of starting enforcement proceedings only after several months (sometimes even several years), when they have exhausted all their energy and nerves waiting for the debtor to “perhaps do it voluntarily”.

    From the way in which this part of the text was processed, it is clear that our motion is not to wait too long with the initiation of enforcement proceedings, but to react in a timely manner so that the debtor is immediately informed that tolerance for non-payment of child support does not (should) exist. . On the contrary, by not taking the actions that our current laws make available to you, you indirectly support the debtor to persist in such behavior and confirm his hope that there will be no consequences for disobeying the court decision.

Motion for enforcement

Enforcement proceedings are initiated when the enforcement creditor himself or through a lawyer submits a motion for enforcement to the court based on the enforcement document. Therefore, the motion for execution is the initial act in the execution procedure.

The elements that should be included in the motion for enforcement based on the enforcement document are listed in the LOE. In the type of procedures, we are talking about here, it is the following data:

  • identification data about the enforceable creditor and the enforceable debtor (name and surname, place of residence and unique citizen identification number for an individual)
  • enforcement document
  • claim of the enforcement creditor
  • one means or one object or several means and objects of execution or a request that the execution be determined on the entire property of the enforceable debtor, and
  • other data that are required for enforcement
  • specifying a specifically designated and locally competent public enforcer who will carry out the execution

According to the Law on Enforcement, the motion for enforcement based on the enforcement document is submitted in at least 4 copies, together with the enforcement document. The enforceable document can be attached in the original, a certified copy or a copy, with the fact that it should certainly contain a certificate of enforceability.

Therefore, to submit a motion for enforcement, you will need the original of the judgment determining the amount of maintenance or its certified copy/transcript. You can get a certified copy simply by notarizing a copy of that judgment at a notary public, while to get a certified copy of the judgment you must apply to the court by submitting a request (in which case you will have to wait much longer to receive it).

The law prescribes special rules if the motion for enforcement is submitted to the court that decided in the first instance on the claim of the enforcement creditor. In that case, the enforcement creditor does not have to attach the enforcement document, i.e. it is enough to submit only a motion for enforcement. However, if he still submits an enforceable document, it is not required that it contain a certificate of enforceability.

The court is obliged to decide on the motion for enforcement within 8 days from the day of receipt. It is a short deadline because the enforcement procedure is urgent by its nature. In accordance with that, the rule states that the time limit in which the parties and other persons are obliged to take actions by order of the court or public bailiff cannot be longer than eight days. However, in practice it often happens that the court does not act within this period.

The situation is certainly better for the enforceable creditor in enforcement proceedings whose subject is precisely the settlement of claims based on legal maintenance, and judges especially take the fact that it is a legal dependent into account when determining priorities in the proceedings.

The principle of formal legality

This principle means that when deciding on a motion for enforcement, the court and the public bailiff are bound by an enforceable and authentic document, as well as that the court is not authorized to examine the legality and regularity of the enforceable document. In simpler terms, the enforcement judge cannot and will not deal with whether the judgment is correct, legal, just, etc. if it has all the features we talked about at the beginning.

Furthermore, the following must also be considered: if the maintenance creditor decides to submit a motion for enforcement, he is bound by the content of the enforcement document – the judgment. Therefore, he cannot ask for more than what is stated in the judgment.

We emphasize this because clients often turned to us with the request that we initiate the procedure of compulsory collection of child support for unpaid amounts of child support, but also to ask for a difference because, for example, when the child started high school, the child’s needs increased significantly. In other words, clients often think that without the existence of a judgment that would determine child support in a higher amount compared to the earlier judgment, it is possible to ask for more in the enforcement procedure than what was determined by the valid judgment, because from their point of view it is indisputable that the child’s needs are increased. Another of the cases that happened to us in practice starts with the idea of ​​starting a procedure to change the amount of child support, and then through an enforcement procedure that would be started at the same time, retroactively request higher amounts from the moment when the child’s needs have significantly increased, even though again, there is no judgment that would contain those amounts and on the basis of which it would be possible to start enforcement.

The conclusion is that larger amounts in the name of support can be forcibly collected only when they are determined by a new judgment that would replace the previously valid one, and the existence of a new judgment would also mean the initiation of a new enforcement procedure.

On the other hand, in the enforcement procedure, smaller maintenance amounts than those stated in the judgment can be requested. This situation will also occur when the maintenance debtor paid smaller amounts than they should have. Therefore, even in a situation where the debtor pays less than he is obligated to, the solution to this kind of problem of yours is the initiation of enforcement proceedings, which would demand the difference up to the full amount of support to which the debtor of support is obligated.

So, to conclude – in the enforcement procedure, the court is bound by the content of the judgment, which determined the amount of legal maintenance, and in the same, only those amounts that the judgment reads multiplied by the number of months in which the debtor failed to pay the maintenance can be requested. In no case can he ask for more than that, until a new judgment containing higher maintenance amounts is passed in a new civil proceeding. Smaller amounts of child support than those stated in the judgment can be requested in a situation where the maintenance debtor (for various reasons) pays smaller amounts in the name of maintenance.

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    Which authority makes the decision on enforcement?

    The decision on whether to adopt the proposed execution is made by the court (such a decision is called the decision on execution), while the execution itself is carried out by the locally competent executor at the choice of the creditor.

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    The course of the enforcement procedure

    After the competent court issues a decision on execution, it is delivered to the public bailiff, who delivers one copy to the debtor and delivers one copy together with the conclusion on the advance payment of his expenses to the enforcement creditor.

    When the enforcement creditor pays the advance payment to the public executor and if the deadline for submitting an objection has passed, and the enforcement debtor does not file an objection, the public executor will start enforcement in the manner indicated by the creditor in the motion for enforcement.

    When the creditor’s claim is fully settled, the Public Executor closes the procedure and submits to the creditor a request for payment of the reward for the successful implementation of enforcement.

    When the creditor pays the award, he informs the Public Executor about it and demands that the executor issue a decision obliging the debtor to pay the creditor the costs of the procedure he had before the public executor (advance payment, award, attorney’s fees, etc.). When the debtor pays those costs or they are forcibly collected from the debtor, the enforcement procedure is finally completed.

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    Costs of enforcement proceedings

    The costs of the enforcement procedure include, first, the costs of the Public Executor, which are billed according to the Public Bailiff’s Tariff and attorney’s fees, which are billed according to the attorney’s rate of the Bar Association of Serbia.

    Costs of the public bailiff

    The enforcement creditor is obliged to pay the public bailiff an advance, which consists of a fee for preparing, managing, and archiving the case, a fee for taking individual actions and a fee for the actual costs of the enforcement procedure or security procedure.

    The public executor is entitled to compensation for the successful implementation of the enforcement procedure or security procedure according to the value of the claim that is settled, realized, or secured.

    Therefore, the higher the amount of support that the debtor owes you, the higher will be the overall costs of the enforcement procedure.

    When the claim is only partially settled, realized or secured, compensation for the successful implementation of the enforcement procedure or security procedure is determined and charged in proportion to the value of the claim that is settled, realized or secured.

    Attorney’s fees

    If the creditor is represented by a lawyer in the forced collection of claims, the costs incurred in the name of the reward for the work of the lawyer and compensation for the lawyer’s expenses are initially paid by the enforcement creditor (the same as in the case of the costs of the public bailiff).

    Attorney’s fees include the preparation of a motion for execution, the preparation of a request for reimbursement of costs, the attorney’s fees for the preparation of other submissions, as well as the reimbursement of the actual expenses incurred by the lawyer for the purpose of representation, which include postal expenses, transportation and other expenses that may arise, all according to the paid bills by lawyers. Attorney’s fees are charged according to the Attorney’s Tariff of the Bar Association of Serbia.

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    Who pays the costs of enforcement proceedings?

    All costs (expenses of the public executor and attorney’s fees) are initially borne by the enforcement creditor, while he has the possibility to refund all paid costs from the enforcement debtor after the completion of the enforcement procedure.

    You can read the prices of representation in claims collection procedures on our page – lawyer’s tariff.

Frequently asked questions regarding the collection of child support:

On which assets of the debtor is it possible to collect?

In these procedures, the most common means of execution are:

  • execution on earnings
  • transfer of funds from the debtor’s bank account
  • transfer of funds from the savings deposit or current account of the enforcement debtor
  • sale of the enforcement debtor’s shares in business entities
  • sale of movable property of the enforcement debtor
  • sale of real estate of the enforcement debtor.

The enforcement creditor can propose that the enforcement be carried out on the entire property of the enforcement debtor, and the public bailiff ex officio takes care that the enforcement is carried out by the means and on the subject that are the least favourable for the enforcement debtor. In practice, all accounts that the debtor has in the banks are usually checked first, and if there is no money in the accounts, an attempt is made to execute on the debtor’s earnings. If the debtor is unemployed, it is checked whether he owns a motor vehicle, and often, after that, an inventory and assessment of movable property is resorted to, if none of the works. If it is not possible to settle the enforcement creditor’s claim in any of the above-mentioned ways, it is also possible to sell immovable property owned by the enforcement debtor.

Can execution on earnings be carried out even when the enforceable debtor receives the minimum wage?

It can. Although there are slightly greater restrictions when it comes to enforcement on minimum wage compared to earnings or average earnings, when it comes to statutory maintenance, enforcement on the wages of a maintenance debtor who receives minimum wage can be enforced up to half of the income.

What if some other enforcement proceedings have been initiated against the enforcement debtor? When will enforcement based on legal maintenance come?

Enforcement creditors have claim legal maintenance have priority in settlement over other enforcement creditors even when execution for the purpose of settlement of other enforcement creditors has already begun. Even in the case of, for example, an administrative ban for the purpose of collecting loans (which often occurs in practice as a type of burden on the debtor’s earnings), enforcement creditors who claim legal support are settled before creditors in whose favour a pay check ban has been introduced.

Will I have to start a new enforcement procedure every time the debtor does not pay maintenance?

No. Once the enforcement procedure has been initiated, it “protects” you from any subsequent non-compliance with the judgment by the maintenance debtor. Therefore, once enforcement is initiated and the motion for enforcement requests it, the public bailiff will “remove” the specified amount from the account of the enforcement debtor every month within the period in which the child support for that month is due. This, in turn, does not mean that the enforcement debtor can no longer pay child support directly to you in the future. If the enforcement debtor decides to pay child support regularly, the enforcement creditor is obliged to inform the public bailiff.

Can I draft and submit a Motion for enforcement on my own?

There are no formal obstacles for the creditor to independently, without the assistance of a lawyer, to draw up and submit a motion for enforcement for the purpose of collecting alimony.
However, enforcement procedures are strictly formal procedures, and the Motion for Enforcement is a strictly formal legal act. This means that it cannot be in “free form”, but it is necessary that it contains everything that the Law prescribes and that the wording in it be such that it can be approved. Consequently, there is little chance that any legal layman can (with all the information he can find online) draft any kind of Motion for Enforcement that the court would approve.

This means that it would be best to hire a family lawyer/law firm of your choice to draw up a Motion for Execution, as drafting a Motion for Execution on your own would most likely lead to it being rejected as sloppy. Even if by any chance it is not rejected, there is a danger that you will not adequately request interest or that you will not correctly determine the means of enforcement, which may lead to less collection of alimony or additional difficulties in collecting alimony.

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