Claiming child support: How and when to claim it

Alimony claim
Published on: 7 May 2024

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Alimony and compensatory alimony are two of the issues that generate most controversy when separation and divorce take place. It is usually not easy to be clear about how and when to claim them. That is why, in this article, we have set out to resolve all the doubts you may have in this regard.

When does the maintenance obligation begin?

According to a judgment of the Supreme Court dated 14 July 2016, the obligation takes effect from the very moment in which the maintenance claim is filed, as it is assumed that the need of the maintenance provider arises there. This overturns another judgment of the Provincial Court of Pontevedra, which ruled that payment could be remitted to later moments in the process depending on the vicissitudes of the moment derived from its admission for processing.

How is an application for maintenance made?

A claim for maintenance can be made in two ways. These are:
1. Civil maintenance claim. This is the quickest and simplest option and requires a lawyer and a solicitor. Specifically, it is a claim made on the basis of an application for enforcement of the divorce decree, which should specify the amount of the maintenance and the parent obliged to provide it. In the event that the parent has the financial capacity to pay the debt through his or her salary, account balance or assets, the process is resolved in a matter of days, as the law provides for attachment as a mechanism of action. The only problem is that the debtor does not have the capacity to pay the amounts, so it will be necessary to wait until he/she has income to enforce the judgement. It should be noted that the debt is not subject to the statute of limitations in these cases.
2. Claiming maintenance through criminal proceedings. According to article 227.1 of the Criminal Code, failure to pay the alimony established by a judge can be a crime in certain circumstances. For this, it is essential that the payment has not been made in two consecutive months or in four non-consecutive months, that there is a firm judicial decision establishing the obligation to provide maintenance (the same divorce, annulment, separation or filiation sentence is valid), that there is an omissive conduct and willfulness in the non-compliance as it is recognised as fraudulent conduct. In these cases, the complaint must be filed with the National Police, the Guardia Civil, a court of first instance or the Public Prosecutor's Office.
It should be added, with regard to the case of the criminal maintenance claim, that the claimant is not required to have a lawyer or a solicitor, although it is advisable to have their services when claiming. In the event that you do not have sufficient economic resources, you can always resort to 'free justice', in which case the public prosecutor will be in charge of accusing and claiming as long as he/she considers that the events that have taken place constitute a crime.

Compensatory alimony in divorce

 Although related, compensatory alimony in divorce is completely different from alimony. In this case, it is not obligatory to grant it, although it is true that judges usually establish it in divorce judgments for the party who is in a weaker financial position. It must be said, on the other hand, that it is not granted in cases of marriage annulment and that it must be requested by one of the parties, as the judge does not grant it ex officio.
There are many factors that judges take into account when granting alimony. In this sense, the state of health and age of the disadvantaged party are unavoidable circumstances to be considered, as well as their professional qualifications, their collaboration in commercial activities, their dedication to the family, the duration of the marriage, the financial means of both parties, the loss of any right to a pension or, in short, any other fact that may be relevant.
A very clear example of a person entitled to a divorce compensation pension is the following. A woman in her 50s stopped working at the age of 20 because she got married and had her first child. From then on, she spent the next 30 years caring for him and the others, so that she did not have the opportunity to re-enter the labour market. At the time of the divorce, she was at a financial disadvantage because her husband had been able to develop his working career for all those years.

How is the calculation of the compensatory pension for divorce made?

The calculation of alimony is quite complicated, mainly due to the fact that the law does not establish a scale on which to base it. Therefore, it is the judge himself who determines the amount depending on the factors that he considers to be taken into account, being the income and assets of the person who will have to pay it the most influential. In general, the payment is made in the form of a monthly annuity that may or may not be for life, although it is true that you have the option of determining the amount to be paid in one lump sum.
The number of years the couple has lived together, whether married or not, the age of the beneficiary, his or her income and qualifications, as well as the presence of dependent children are other factors that influence the amount and duration of the maintenance allowance. A good lawyer specialising in this area can certainly be of great help in obtaining the highest possible figure.
In short, alimony and compensatory alimony are completely different concepts. The granting of one does not necessarily have to be accompanied by the granting of the other. We hope we have been of help and have resolved any doubts you may have had in this regard.

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