The Supreme Court authorizes exceptional seizure of Afore in alimony cases
The First Chamber of the Supreme Court of Justice of the Nation (SCJN) issued a historic ruling that allows, exceptionally, the seizure of the retirement subaccount of the Retirement Fund Administrators (Afores). This measure applies exclusively to guarantee the payment of alimony to minors when the account holder is unemployed and lacks other assets or income.
Details of the ruling and applicable conditions
Unanimously, the ministers resolved that, in situations where the worker does not have employment or alternative economic resources, a proportional part of his retirement subaccount, unemployment in advanced age and old age may be seized. The decision emphasizes that an absolute blockade of the embargo would violate the best interests of children, a guiding principle in matters of human rights.
However, the Court clarified that it does not declare unconstitutional Article 79 of the SAR Law, which prohibits embargoes on said subaccount. Instead, it made a legal interpretation to make the rule more flexible in exceptional cases, as long as these requirements are met:
- The holder must be unemployed and without the ability to pay.
- Not having made voluntary contributions to your Afore (if they exist, these would be used first).
- The attachable amount will not exceed what is allowed for unemployment withdrawals: the equivalent of 65 days of basic salary or 10% of the balance, whichever is less.
Legal context and precedents
This ruling marks a contrast with previous resolutions. In 2014, the Second Chamber of the SCJN endorsed the prohibition of embargoes on the housing subaccount, intended for Infonavit or Fovissste credits. However, the ministers determined that that precedent does not apply to this case, given that the protection of the rights of minors takes precedence here.
It should be noted that, as a general rule, savings in Afores are untouchable until the worker turns 65 and accredits the required weeks of contributions. This restriction seeks to safeguard assets for retirement, but the new ruling introduces an ethical-legal nuance by prioritizing family obligations.
Practical implications and oversight
The ruling emphasizes that judges must unofficially verify the debtor’s employment and property situation before authorizing the seizure. In addition, it establishes that the measure will be temporary and proportional, avoiding affecting the financial future of the owner beyond what is strictly necessary.
Experts in labor law highlight that this resolution balances two fundamental rights: the social security of the worker and the protection of children. However, they warn about the need for clear mechanisms to avoid abuse or arbitrary interpretations.
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