Divorce: how do I claim outstanding pensions?
Divorce: how do I claim outstanding pensions?
My ex-husband is using every possible excuse not to pay the alimony due under our divorce decree. I haven't received anything from him for several months now, which has put me in a difficult financial situation. What exactly can I do to force him to pay?
C, Geneva
There are several ways to help you recover these maintenance contributions, both in terms of the arrears due for the last few months and the pensions to be paid in the future.
The simplest and least expensive way is to contact the Service cantonal d'avance et de recouvrement des pensions alimentaires (SCARPA), a Geneva government service that helps parents recover the maintenance payments owed to them under a separation or divorce decree when the other parent - the debtor - neglects his or her maintenance obligation. Provided that your situation meets certain conditions, the amounts set out in the divorce decree will be 'advanced' to you (in other words, paid directly) by this service, which will in turn initiate recovery proceedings against your ex-husband: you will therefore have to sign a paper attesting to the fact that you are assigning your claim to SCARPA.
If you prefer to take direct action yourself, you can apply to the debt collection office responsible for your ex-husband's place of residence to serve him with a summons to pay. This route is only useful for arrears owed, but you can claim payment in a single lawsuit.
As regards the maintenance contributions owed by your ex-spouse for the future, it is possible to take action before a civil court to obtain what is known as a notice to debtors. This is a procedure in which, if the conditions are met, the judge will order a third party who is the debtor of the parent who is not meeting his or her maintenance obligation (for example, his or her employer) to withhold part of what he or she must pay him or her (for example, from his or her salary) and pay it directly to the applicant.
Finally, the criminal route is also open, through a complaint for breach of the duty to provide maintenance. Article 217 of the Swiss Criminal Code stipulates that anyone who fails to provide the maintenance or subsidies owed under family law, even though they have the means to do so, will be punished by a fine or a custodial sentence of up to three years.
Of course, in all these proceedings, the judge will first check that your ex-husband is actually able to pay the maintenance due; in other words, his subsistence minimum, i.e. the amounts he needs to meet his basic needs, will be protected in all cases.
Ultimately, there are various means of defence and it is important not to tolerate such a situation for too long, especially as maintenance contributions are periodic payments for which there is a 5-year statute of limitations, which means that you will no longer be able to claim the payment of a pension that should have been paid more than 5 years ago; so don't hesitate to consult a lawyer or a legal advice centre as soon as possible, who will be able to help you with your case.
Pascal Rytz
