text translated automatically from the Polish version
[Legal status as at January 2019]
If the obligee refuses to pay alimonies, the law provides for a lot of facilitation in obtaining them. However, in what amount the maintenance will be awarded and how quickly it largely depends on the behavior of the entitled to maintenance.
- STAGE I negotiations, out-of-court settlements
In the case of maintenance, as in any case for payment, it is recommended in principle to conduct preliminary negotiations. This is due to the fact that usually if the debtor obliges himself / herself to something, he is more likely to fulfill his obligations.
- STAGE II a court case
- STAGE III enforcement of bailiffs
Negotiations can be conducted in person or by proxy. Of course, the cheapest thing to do is to do it yourself, but it happens for various reasons that parents do not want or can not contact each other directly. Then it is worth reaching for the help of a specialist. Most often, there will be a lawyer (or legal counsel) specializing in family law, because such a person may later bring the case to court. However, if the alimony is just one of many issues to discuss (next to, for example, parental authority, contact with the child, etc.) then in this case, you can consider using a psychologist to conduct interviews before going to a lawyer.
The way of conducting negotiations can be different and it is worth relying on the advice of professionals. However, remember everything that will happen during negotiations can be used against us. For example, all the facts (eg the amount actually needed for the child's maintenance or the amount of income) that will be disclosed to the other party during the negotiations may later be appointed by her during the trial. Of course, the parties may oblige each other not to reveal the course of the negotiations (lawyers and legal advisors are even prohibited from disclosing the content of negotiations being held during the trial), but in practice it does not seem to be much. All letters, letters and even recorded conversations can later appear as evidence in the case.
If, however, a settlement is already reached, it may take a different form, which is of great legal significance.
Most often, we are dealing with an oral settlement, which is also binding. In practice, however, it is difficult to prove the conclusion before the court. Therefore, after oral arrangements, it is worth collecting documents confirming the settlement - they may be useful in the event of a dispute.
There may also be a written contract - written down on an ordinary piece of paper. Contrary to appearances, it is a normal contract and in the event of a breach, you can enforce it in court (in practice, however, such a case usually turns into a normal alimony trial, because the court is not bound by the contract and can set a different amount of maintenance than in the contract).
Finally, we have a settlement in the form of a notary, in which the debtor is subject to execution. In this case, the notarial deed equals the verdict of the court. In the event of a compromise, we do not have to plead, but we simply refer the case to the bailiff (after giving the notarial deed an enforceability clause, which we must also do with the normal judgment). Submission to the execution of a notary public is a standard contractual clause and you can contact any notary public.
In the event that the obligation to support him does not want to pay them voluntarily, it is necessary to take legal action. The alimony case may take place either "on the occasion" of another process, e.g. a divorce case, as well as independently - ie the subject of the process is only the issue of the obligation to pay child support. If the issue of maintenance is one of the matters to be considered in a divorce case, the issue of maintenance is also decided by the court in the main case - in this case, the district court.
As a rule, the District Court is competent for alimony cases. According to the Code of Civil Procedure, an action is brought before the court of first instance in whose jurisdiction the respondent is domiciled. However, an action for a maintenance claim may also be filed against the place of residence of the person entitled. For example: Mr. Y lives in Piaseczno near Warsaw, while his minor daughter in Wołomin near Warsaw. An action for a maintenance claim against Mr Y can therefore be brought before the District Court in Piaseczno or the District Court in Wołomin.
An alimony claim for a minor child may be brought by a statutory representative on his behalf. In practice, it is very common for one of the parents to act on behalf of a minor child, requesting alimony of the other parent. Of course, the parent who acts on behalf of the child for alimony is not obliged to run the case independently, he can use the help of a professional attorney - attorney or legal counsel. In matters relating to maintenance claims, a representative may also be represented by, competent in matters of social assistance, a body of a territorial self-government unit and a social organization, aimed at providing assistance to the family.
In a situation where attempts to reach an amicable agreement with the obligation to pay alimony ended with non-disclosure and we filed a lawsuit, as was described in stage II, we have the opportunity to take legal action. In the course of the proceedings, the party (or participant of the proceedings) may request securing if it proves the existence of a claim and the legal interest in granting the security (there is a legal interest when the lack of security will prevent or seriously hinder the execution of the decision made in the case or otherwise prevent or seriously hinder achieving the purpose of proceedings in the case). In such a situation, the court, having examined the application (maximum within one week from the date of receipt of the application to the court), issues a decision on the security. If the decision is taken in a closed session of the court, it will provide it to the entitled party. When the order (on granting a security) is enforceable by way of enforcement, the provisions on enforcement proceedings apply accordingly, the only difference being that the court grants such a decision an enforceability clause ex officio.
It is worth remembering that the collateral granted falls in the event of valid return or rejection of the claim or application, dismissal of the claim or application or discontinuance of the proceedings.
However, passing to the execution itself, the most important element is the possession of an enforceable title, that is, the execution title (judgment / order / settlement and others listed exhaustively in Article 777 of the Code of Civil Proceedings), provided with an enforcement clause. Judgments ordering maintenance payments from the office, I give enforceability clause and deliver them to the entitled party (Article 1082 of the penal code).
The initiation of the execution takes place ex officio (at the request of the court of first instance hearing the case, Article 1085 CC) or at the request of the creditor (or prosecutor, Ombudsman, social organizations whose list is established by the Minister of Justice) is submitted to the competent court or bailiff ( as a rule, proper for the place of residence of the debtor, but in the case of the enforcement of alimonies it is possible because of the place of residence of the creditor - Article 1081 § 1). When the application is submitted to the bailiff responsible for to the place of residence of the creditor, the bailiff will send a notice on the initiation of the bailiff's enforcement of the general property of the debtor. The bailiff's bailiff will demand that the case be referred to him along with the amounts collected (Article 1081 § 2). In a situation where the debtor is imprisoned (Article 1081. § 3), the creditor may submit an enforcement order directly to the director of the prison (who is obliged to pay the debtor for the debtor's work or his money deposited in the prison). Such payments will not, however, be possible if applications have been submitted by several creditors and the means (remunerated for work or deposited) are insufficient to satisfy all creditors' claims (Article 1081 § 4).
The application must be accompanied by the original of the aforementioned writ of execution. When submitting the application, the creditor is not obliged to indicate the manner of execution or the debtor's property (of course, if it does, it will help the bailiff to work and create an opportunity for quicker and more effective execution). The application is then deemed to concern all acceptable methods of enforcement (with the exception of real estate executions). The enforcement authority always uses the least burdensome way of enforcement for the debtor.
The bailiff is obliged to ex officio carry out an investigation to determine the earnings, property status of the debtor and his place of residence (when these measures prove ineffective, the Police authorities will carry out the bailiff's actions to determine the place of residence and the debtor's place of work). Such investigations are carried out at intervals of not more than 6 months.
During the proceedings, the debtor is obliged to submit to the bailiff a list of assets under penalty of perjury for making a false statement. However, if in this way it is impossible to determine the assets allowing for the satisfaction of the benefit, the creditor may order the bailiff to look for the debtor's assets. At the first enforcement action, the debtor is notified of the initiation of the execution, giving the content of the enforcement title and listing the manner of execution and instructions.
It is worth noting that the income listed in art. 831 § 1 point 2 k.p.c. (sums awarded by the State Treasury for special purposes, in particular scholarships and other support) are subject to enforcement for the satisfaction of maintenance up to three fifths of the part, but the receivables from the bank account are subject to enforcement in full amount. One can not forget about the regulation of art. 1087 kp.c. (regarding the employment of the debtor by a close person), which is aimed at preventing collusion of the debtor with the debtor enforced, trying to prevent the execution of maintenance.
If the enforcement of the maintenance did not give a positive result due to the debtor's conscious and malicious evasion of the maintenance obligation, the bailiff notifies the creditor and instructs him of his right to penalize the debtor for malicious evasion. In addition, when the debts can not be enforced for one reason or another, the creditor can apply for support from the maintenance fund. However, this assistance is only available to people whose income does not exceed PLN 725 per person in a family.
In the event of arrears for a period longer than 6 months, the bailiff ex officio files an application to the National Court Register for entry of the debtor into the register of insolvent debtors.
ATTENTION! The ineffectiveness of enforcement does not constitute grounds for discontinuance of proceedings (Article 824 § 1 point 4 of the Civil Code does not apply).