Child maintenance unpaid: enforcement and the criminal route
Last updated 2026-09-01 · Reviewed by Jaime Piñeira Pardo, registered with the ICAM bar, no. 138826
The short answer
Both routes are opened at once. Enforcement under article 776 of the Ley de Enjuiciamiento Civil seizes his assets and allows coercive fines for repeated non compliance. In parallel, failing to pay for two consecutive months or four non consecutive ones is already the offence of article 227 of the Código Penal. Each instalment lapses after five years.
The judgment set 300 euros a month for each of your two children. The father paid normally for the first year, then began to pay late, and for eight months now he has paid nothing. He answers that he is out of work, although you know he invoices on his own account and has changed his car. He already owes 4,800 euros, plus half of the older child's orthodontics, which he has not paid either. You have been told that reporting him achieves nothing and that, with no payslip, there is nothing to seize.
The case, in five lines
- What is brought
- A claim to enforce the measures under article 776 of the Ley de Enjuiciamiento Civil and, in parallel, a criminal complaint for the offence of non payment of maintenance under article 227 of the Código Penal.
- Before which court
- Enforcement goes to the sección de familia del Tribunal de Instancia (the family section of the first-instance court) that gave the decision. The complaint goes to the sección de Instrucción del Tribunal de Instancia (the investigating section), with later trial in the criminal section.
- Deadline
- Each unpaid instalment lapses after five years under article 1966.1 of the Código Civil, and time runs separately for each one. On the criminal side, the offence of article 227 arises once two consecutive or four non consecutive months go unpaid.
- Who can bring it
- The creditor parent, in their own name and on behalf of the minor children, and an adult child as regards maintenance recognised for them. On the criminal side, the person suffering the non payment may report it and appear as a private prosecutor.
- Financial risk
- The real risk is the debtor's insolvency, not the merits: you can win and recover little if no assets appear. Enforcement requires serious asset investigation, and a criminal complaint without the unpaid months properly counted is shelved and weakens the civil case.
Both routes open at once and reinforce each other
Non payment of maintenance has both a civil and a criminal response, and there is no need to choose. The civil one is enforcement under article 776 of the Ley de Enjuiciamiento Civil, which pursues the money: it seizes accounts, wages, tax refunds and assets until the debt is covered. The criminal one pursues the conduct and rests on article 227 of the Código Penal, which punishes non payment with three months to one year in prison or a fine of six to twenty four months.
The two reinforce each other. Paragraph three of article 227 provides that reparation of the harm caused by the offence always includes payment of the sums owed, so the criminal route does not replace the debt but carries it along. In practice, many debtors who spent months ignoring enforcement begin to pay when the civil liability arising from the offence is put on the table.
The order matters little, the preparation a great deal. It is best to enter both with the same table of instalments: what was owed each month, what was paid in, on what date and in what amount. That table is the statement of the debt in the enforcement and is at the same time the account of facts in the complaint, which needs to identify precisely which consecutive or non consecutive months went unpaid.
Enforcement does not only seize: it also fines month after month
The first special rule in article 776 is little known and very useful: a spouse or parent who repeatedly fails to comply with obligations to pay money may have coercive fines imposed by the court clerk under article 711, and that is without prejudice to recovering the sums owed and unpaid from their assets. The fine is not deducted from the debt: it is added to it.
That tool changes the calculation of a debtor who hides. Against someone who trusts that enforcement will run out for want of assets, a repeated fine turns silence into more debt, and asset investigation reaches bank accounts, tax refunds, invoicing income, company shares and vehicles. A debtor who says he has no payslip rarely lacks a cash flow documented in some register.
For what is not money, the second special rule blocks the usual shortcut. Where strictly personal non financial obligations are breached, the automatic substitution by a monetary equivalent provided for in paragraph three of article 709 does not apply, and monthly coercive fines may be maintained for as long as necessary beyond the one year limit. The obligation cannot be bought off: it has to be performed.
Two months in a row or four apart: the offence already exists
Article 227 of the Código Penal does not require years of non payment. It punishes anyone who fails to pay, for two consecutive months or four non consecutive months, any kind of financial provision in favour of their spouse or children, established in a court approved agreement or a judicial decision in cases of legal separation, divorce, declaration of nullity, filiation proceedings or maintenance proceedings for the children.
The four non consecutive months are the key to real cases. A debtor who pays three months, skips one, pays two and skips again believes he is safe because he never accumulates two in a row, and he is not: the provision adds up the separate months. That is why exact accounting of payments and dates, with bank statements, decides whether there is an offence or merely a civil debt.
Paragraph two extends the offence to anyone who fails to pay any other financial provision established jointly or as a single sum in those same situations, and paragraph three closes the circle: reparation of the harm caused by the offence always includes payment of the sums owed. Anyone hoping to close down the criminal route with a partial payment finds that full payment is part of the reparation.
Each instalment lapses on its own after five years
Article 1966 of the Código Civil provides that actions to enforce the obligation to pay maintenance lapse after five years. It is not a single period for the whole debt: each instalment is an obligation enforceable in its own right and its period begins to run when that particular instalment falls due.
The consequence is a silent drip. Anyone who waits for the debt to grow before claiming it discovers that the oldest instalments have fallen away along the road, while the recent ones remain alive. Claiming early and continuously, with documented demands that interrupt time running, is what stops the oldest part of the debt disappearing without ever having been argued about.
Orthodontics and school costs are enforced by a different route
Costs not expressly provided for in the measures have their own route in the fourth special rule of article 776. Where extraordinary costs not expressly provided for in the final or interim measures are to be enforced, a prior application must be made, before enforcement is ordered, for a declaration that the sum claimed qualifies as an extraordinary cost.
The article then describes a short incident: the application is served on the other party and, if there is opposition within the following five days, the court summons the parties to a hearing conducted under articles 440 and following and decides by order. Skipping that prior step is the most common reason why enforcement of extraordinary costs fails at the outset.
How we run the case, step by step
- 1
Building the exact table of instalments
We cross the judgment, any applicable updates and bank statements to fix month by month what was owed, what was paid and when. That table serves both to quantify the enforcement and to count the months under article 227.
- 2
Investigating the debtor's real assets
We locate accounts, salary or invoicing, tax refunds, vehicles, property and company shares. A debtor who says he has nothing almost always has a cash flow documented in some public or financial register.
- 3
Enforcement claim with seizure and coercive fines
We ask for enforcement of the principal and interest, seizure of what has been located and, under the first special rule of article 776, the imposition of coercive fines for repeated failure to comply with the payment obligations.
- 4
Prior declaration of the extraordinary costs
For orthodontics, a master's degree or treatment not foreseen in the judgment, a declaration of extraordinary cost is sought first. If the other side objects within five days, there is a hearing under articles 440 and following, decided by order.
- 5
Criminal complaint for the article 227 offence
With the table of unpaid months closed, the complaint is filed identifying the two consecutive or four non consecutive months, and the civil liability arising from the offence is claimed, which always includes payment of the sums owed.
- 6
Sustaining recovery and stopping old debt lapsing
We keep the enforcement open, repeat seizures over future income and document every demand, because each instalment lapses separately after five years under article 1966 of the Código Civil.
The evidence that decides the case
- The judgment or court approved agreement setting the maintenance, with the updating clauses that determine the amount due each month.
- Bank statements for the receiving account covering the whole period claimed, proving which instalments came in and which did not.
- Invoices for the extraordinary costs and proof that they were notified to the other parent before being incurred.
- The debtor's asset information: employment record, ownership of vehicles and property, company shares and tax refunds.
- Messages in which the debtor acknowledges the debt or announces he will not pay, because they close off any argument about knowing the obligation.
- External signs of financial capacity where he pleads insolvency: a new car, travel, rentals or activity invoiced on his own account.
What closes the door
- Waiting for the debt to grow before claiming. Each instalment lapses separately after five years under article 1966 of the Código Civil, so the oldest part is lost while the rest piles up.
- Accepting partial payments without identifying them. An isolated transfer with no reference allows later argument about which month it covers and can break the count of consecutive months under article 227.
- Blocking contact to force payment. These are independent obligations: non payment does not entitle you to breach the contact arrangement, and doing so puts the person claiming in the position of the party in breach.
- Enforcing orthodontics or school costs without first seeking the declaration of extraordinary cost required by the fourth special rule of article 776, so the enforcement fails on an avoidable defect.
- Filing a complaint without counting the months properly. A complaint that does not identify two consecutive or four non consecutive instalments is shelved and leaves the debtor convinced there is no criminal risk.
The law that applies
- Art. 776 LEC. Governs enforcement of the measures: coercive fines under article 711 against anyone repeatedly failing to comply with payment obligations, without prejudice to recovering the sums owed from their assets; a ban on substituting money for strictly personal obligations; the possibility of modifying custody and contact where breach is repeated; and a prior declaration of extraordinary cost with an objection incident within five days. BOE-A-2000-323
- Art. 227 CP. Punishes with three months to one year in prison, or a fine of six to twenty four months, anyone who fails to pay for two consecutive or four non consecutive months any financial provision in favour of a spouse or children set in a court approved agreement or judicial decision, extends the penalty to provisions established jointly or as a single sum, and provides that reparation of the harm always includes payment of the sums owed. BOE-A-1995-25444
- Art. 1966 CC. Sets a five year limitation period for actions to enforce the obligation to pay maintenance, alongside the obligation to pay the price of rural or urban leases and any other payments that must be made yearly or at shorter intervals. BOE-A-1889-4763
Each article checked against the consolidated text published in the BOE (the Spanish official gazette).
Frequently asked questions
How many months must pass before non payment is a crime?
Two consecutive months, or four non consecutive months, under article 227 of the Código Penal. The second rule is what surprises many debtors: someone alternating payments and gaps never accumulates two months in a row, but does accumulate four separate ones, and the offence is committed all the same. The penalty is three months to one year in prison or a fine of six to twenty four months.
If he says he has nothing, is enforcement worth anything?
Yes, for two reasons. First, asset investigation reaches accounts, invoicing, tax refunds, vehicles and company shares, and it rarely confirms the insolvency alleged. Second, article 776 allows the court clerk to impose coercive fines on anyone repeatedly failing to comply, without prejudice to recovering the sums owed from their assets.
Can I stop handing over the children until he pays?
No. These are independent obligations and doing so makes you the party in breach. Moreover, the third special rule of article 776 provides that repeated failure to comply with the contact arrangement, by either the resident or the non resident parent, may lead to modification of the custody and contact arrangement where that accords with the child's best interest.
Can I claim half the orthodontics if the judgment does not mention it?
Yes, but by its own route. The fourth special rule of article 776 requires a prior application, before enforcement is ordered, for a declaration that the sum claimed qualifies as an extraordinary cost. The application is served on the other party and, if there is opposition within five days, a hearing under articles 440 and following decides the point by order.
Is there any public support while I cannot recover the money?
There is the Fondo de Garantía del Pago de Alimentos, governed by Real Decreto 1618/2007. It is not an alternative to enforcement and does not replace it, and its requirements, limits and compatibility with what is claimed in the case are examined individually when your situation is studied, because they depend on facts that must be evidenced. The claim against the debtor continues in parallel.
This guide explains how the action works in general. It does not replace the study of your own case: deadlines depend on when things happened and on what you have done since.