When support is not paid: collecting through National Insurance or enforcement
Where a maintenance judgment is not honoured there are two routes rather than one. A monthly payment can be received from the National Insurance Institute, which steps into the debtor’s shoes, or an enforcement file can be opened and the money collected from him directly. The two cannot be run in parallel, so choosing between them is the first decision.
“The difference between the two routes is not technical. In one you receive a fixed amount known in advance; in the other you receive whatever was actually collected. The right choice turns mainly on the debtor’s financial position.”
Adv. Ester Efrati · Head of the Family and Inheritance Department
Two routes, not one
Non-payment of support hits the ability to meet the children’s needs immediately, so the first question is not legal but practical: how money arrives this month. There are two ways, and they differ in substance.
- The National Insurance Institute. It steps into the debtor’s shoes and pays the beneficiary a fixed monthly amount, then collects from the debtor itself. The payment arrives even if nothing has been collected.
- Enforcement proceedings. Collection measures are taken against the debtor and only what is actually collected reaches the beneficiary. There is no ceiling, but there is no certainty either.
The central difference is who bears the risk. On the National Insurance route the risk passes to the state and the beneficiary receives a known amount. On the enforcement route the risk stays with the beneficiary, but there is no ceiling on what can be collected.
One point has to be understood in advance: the two routes cannot be run in parallel on the same obligation. Taking independent collection measures while receiving payments from National Insurance ends the entitlement. This is therefore a decision made at the outset rather than along the way.
How the National Insurance route works
The route is grounded in the Maintenance (Assurance of Payment) Law, 1972. The idea behind it is simple: the state does not want children left without a source of funds because a debtor is not paying, so it pays in his place and collects from him itself.
From the beneficiary’s point of view this is a fixed monthly payment that arrives on time, with no dependence on collection and no need to conduct proceedings against the debtor. From the debtor’s point of view the debt is not erased but transferred: he now owes the National Insurance Institute, which takes collection measures against him.
The application is submitted to the Institute with the maintenance judgment and documents showing income. No further court proceeding is needed, and there is no requirement to show that collection was attempted first.
It is important to understand that this route does not suit everyone. It is subject to conditions of entitlement and to a payment ceiling, so in some files it yields less than what was awarded. The next section sets that out.
Conditions of entitlement
Entitlement is not automatic for everyone holding a judgment. It is subject to three cumulative conditions, each with a practical consequence.
- A maintenance judgment. A valid judgment is required, from the family court or from a religious court. An agreement that was never approved is not enough.
- The debtor’s residency. The debtor was an Israeli resident when the judgment was given, or for at least twenty four months out of the forty eight months preceding it. This is the condition that defeats files where the debtor has lived abroad for years.
- An income test. Under the regulations, entitlement and its extent are also assessed against the beneficiary’s income, from work and from other sources. Above a certain ceiling the entitlement is lost.
The income test is what surprises people most. A parent on an average salary may find there is no entitlement at all, even where the debtor is paying nothing. In such cases the enforcement route is the only way.
The entitlement provisions in the statute are drafted broadly and include a child in whose favour maintenance was awarded. So where the parent does not meet the income test, it is worth examining how the judgment was drafted: to whom exactly maintenance was awarded, and in what structure.
How much is paid, and the gap
This is the part that produces most of the misunderstanding. The Institute does not necessarily pay the amount awarded, but the lower of two: the amount in the judgment, or the amount fixed in the regulations.
The meaning is that where the judgment set an amount above the regulatory ceiling, the difference is not paid on a current basis. It is not erased, but it does not arrive each month either.
What happens to that difference. Where the Institute succeeds in collecting from the debtor more than it paid the beneficiary, the surplus is passed on to the beneficiary. Collection is credited first against what was paid out, and anything beyond that goes onward.
A simple practical conclusion follows: where the amount awarded is below the ceiling, the National Insurance route delivers nearly the full sum with complete certainty. Where the amount awarded is well above the ceiling, and the debtor has income or attachable assets, enforcement may yield more.
The amounts in the regulations are updated periodically, so there is no point quoting them here. The current figure can be checked with the Institute before deciding.
Retroactive payment
Many people apply late, sometimes months after payments stopped. Occasionally because they did not know the route existed, and more often because they waited in the hope that the debtor would pay.
The statute allows payment for a period preceding the application, up to one year back, provided that during that period no payments were received from the debtor and no independent collection measures were taken.
There is a trap worth knowing here: retroactive payment is not given automatically. It has to be requested expressly. An application that does not include such a request will produce payment only from the date of filing onward, and the earlier months are lost.
The conclusion is twofold. First, apply early rather than wait. Second, where time has already passed, make sure the application includes an express claim for the preceding period, with a schedule of the months in which nothing was paid.
The enforcement route
The second route is opening a file to execute the judgment through the Enforcement and Collection Authority. There is no payment from the state here, and what reaches the beneficiary is what was actually collected from the debtor.
A maintenance debt has a special standing in the enforcement system, and the measures available are unusually wide:
- Attachments. Salary, bank accounts, funds held by third parties, a vehicle and other assets.
- Restrictions. A stay of exit from the country, suspension of a driving licence, and restrictions on the use of credit and on opening accounts.
- An arrest order. In a maintenance debt an arrest order may be sought against a debtor who is not paying. It is an exceptional measure, but it exists and at times it is what produces payment.
Alongside enforcement there is also the route of contempt of court, in which application is made to the court that gave the judgment to compel compliance. It suits cases of systematic breach rather than mere difficulty in collecting.
The advantage of this route is clear: there is no ceiling. The disadvantage is equally clear: where the debtor has no declared income and no assets in his name, a file can run for years and yield very little.
How to choose between them
There is no single answer. The choice follows three facts, and all three are worth checking before any file is opened.
- The debtor’s financial position. A debtor with a regular salary or registered assets is a good target for collection, and enforcement may then deliver the full amount. A debtor with no declared income points to the National Insurance route.
- The gap between the judgment and the ceiling. The closer the amount awarded is to the regulatory ceiling, the more the certain route is preferable.
- Your own income. The income test may remove the entitlement altogether, in which case the decision makes itself.
There is a fourth consideration that is hard to measure: the capacity to run a proceeding. The National Insurance route disconnects the beneficiary from ongoing contact with the debtor, and it is the state that confronts him. In families with sharp conflict that is a weighty consideration in itself.
It is possible to move from one route to the other, but not to run both. A person who has opened an enforcement file can stop it and apply to National Insurance, and the reverse. Such a move is worth planning so that no month is left without any payment.
From the debtor’s side
We also represent parents who have fallen into a maintenance debt they cannot meet, so this side deserves to be stated plainly.
The first thing to understand is that stopping payment is neither a solution nor a way of buying time. The debt continues to accumulate, linkage differentials are added to it, and restrictions follow that damage the ability to earn and to repay. A debtor whose licence has been suspended or whose exit from the country has been stayed finds it even harder to pay.
What can be done:
- File a claim to reduce support where a genuine change of circumstances has occurred, and file it early. See increasing or reducing support.
- Apply for a payment arrangement on the accrued debt, in enforcement or with the Institute.
- Document the income position on an ongoing basis, rather than explaining it after the fact.
What does not help: waiting, ignoring the documents, or relying on an oral understanding with the other parent. Such an understanding does not bind the enforcement authority and does not erase a debt.
Summary
Where support is not paid there are two routes: a fixed payment from the National Insurance Institute, or direct collection from the debtor through enforcement. They cannot be run in parallel.
Three points are worth taking from here. First, the National Insurance route offers certainty but is subject to conditions of entitlement and to a ceiling, above all an income test that surprises many. Second, payment can be obtained for up to a year back, but only if it was expressly requested. Third, enforcement has no ceiling but depends entirely on what can actually be collected.
If support in your case is not being paid, or you are on the debtor’s side and cannot meet the payment, contact us to choose the right route before a file is opened.
What people ask most often
The other parent is not paying support. What comes first?
Deciding which of the two routes to take: a monthly payment from the National Insurance Institute, or an enforcement file for direct collection. The two cannot be run in parallel on the same obligation, so this is the first decision.
What exactly does the National Insurance Institute do?
It steps into the debtor’s shoes. It pays the beneficiary a fixed monthly amount even where nothing has been collected from the debtor, and then collects from him itself. The debt is not erased but transferred to the state.
What are the conditions of entitlement?
Three cumulative conditions: a valid maintenance judgment; the debtor was an Israeli resident when the judgment was given or for at least twenty four of the forty eight months preceding it; and meeting the income test set in the regulations.
I am working. Does that remove the entitlement?
It may. The income test looks at income from work and from other sources, and above a certain ceiling the entitlement is lost. This is what surprises people most, so it is worth checking before giving up on the enforcement route.
How much is actually paid?
The lower of two: the amount fixed in the judgment, or the amount fixed in the regulations. Where the judgment exceeds the ceiling, the difference is not paid on a current basis.
What happens to the gap between the judgment and the ceiling?
It is not erased. Where the Institute collects from the debtor more than it paid out, the surplus is passed on to the beneficiary.
Can payment be obtained for past months?
Yes, up to one year back, provided no payments were received from the debtor and no independent collection measures were taken during that period. Importantly, it must be requested expressly, otherwise payment runs only from the date of filing.
Can both routes be used at once?
Not on the same obligation. Taking independent collection measures while receiving payments ends the entitlement. It is possible to move between the routes, but the move should be planned so that no month is left without payment.
What measures are available against a maintenance debtor in enforcement?
Attachment of salary, bank accounts, funds held by third parties, a vehicle and other assets; a stay of exit from the country, suspension of a driving licence and credit restrictions; and in a maintenance debt an arrest order may also be sought.
Which is better, National Insurance or enforcement?
It depends on three facts: the debtor’s financial position, the gap between the amount awarded and the regulatory ceiling, and the beneficiary’s income. A debtor with a salary and assets points to enforcement; a debtor with no declared income points to National Insurance.
I am the debtor and cannot pay. What should I do?
Do not stop paying unilaterally. The debt keeps accruing and restrictions follow that damage the ability to earn. What can be done: file a claim to reduce support as early as possible where there is a genuine change of circumstances, and apply for a payment arrangement on the accrued debt.
Is an oral understanding with the other parent enough?
No. An understanding that was not embodied in a judgment or decision does not bind the enforcement authority and does not erase a debt. Any change has to be regularised.
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A short assessment call with a lawyer from the department, to check the conditions of entitlement, the gap against the judgment, and which route is likely to yield more in your case.