Criteria for the establishment of maintenance payments

Whenever there is a divorce or separation between two spouses, if there are children involved who are entitled to it, alimony is established and one of the parties has to pay it. Undoubtedly, this is an element that is not exempt from controversy and controversy that, on many occasions, ends up in court. For this reason, in this article, we would like to talk to you about the main criteria for its establishment.

What is maintenance?

Alimony is a concept that appears within the framework of maintenance law and, therefore, of family law. It is the legal right of any person, provided that he or she is considered to be a maintenance creditor or maintenance provider, to require another person, who is known as the maintenance debtor, to provide him or her with enough to live on.

However, alimony, although it can occur in other types of situations, appears more frequently after a divorce in which children are involved. In this sense, the spouse who does not have custody of the children and who, therefore, does not have the minors or adults entitled to it in his/her charge, has the obligation to pay it until such time as they are independent and can fend for themselves.

Compensatory maintenance is not alimony, as no one has a maintenance obligation towards his or her former spouse. This type of alimony is paid to correct financial imbalances that may have occurred during the marriage and that make it impossible for one of the parties to be financially solvent for a certain period of time. This is the case, for example, for women who stop working to care for their children. As they have not pursued their professional careers, it is assumed that the man must compensate her after the separation.

In any case, alimony is regulated in article 142 et seq. of the Spanish Civil Code. This text states that it is an expression of family solidarity, i.e., between persons who are related to each other. On the other hand, the obligation of payment by the non-custodial spouse arises as indicated in Article 148. Specifically, what it states is that it arises at the same moment in which there is a need to provide maintenance.

Therefore, the obligation to pay on the part of the non-custodial spouse does not start at the moment when the judge issues a judgment, but on the date when the application is filed.

What criteria are applied for the establishment of maintenance?

To answer this question, the first thing to consider is which parent has custody of the children. In this respect, several situations can arise.

Until not too long ago, the most common situation was that the custody of the children was assigned to one parent, which was usually the mother, although this was not necessarily the case. From then on, the father was responsible for paying, on a monthly basis, the amount of alimony established in the divorce settlement agreement.

However, for some time now, unless there are problems related to gender violence or both parties have negotiated a different regulatory agreement, the courts have been opting for the formula of shared custody. But what happens in this type of case?

When it is agreed or determined by the judge to have shared custody for short alternating periods such as weeks or fortnights, each parent will have to pay the ordinary maintenance costs that the child generates during the time he/she is with him/her. It is compulsory to open a joint account in which each of them will have to pay a sum in accordance with their income and which will be used to meet the rest of the child's expenses.

In this way, the problem of alimony after a divorce is considerably simplified.

What does maintenance cover?

Many people believe, probably because of the confusion caused by its name, that maintenance payments only include the maintenance expenses of the recipient. However, this is not the case. This is exactly what it covers:

1. Educational expenses: not only primary and compulsory secondary education, but also the Bachillerato and university studies are covered, as long as it can be shown that the child is benefiting from them.
2. Any regular, foreseeable and ordinary needs of the child: here, for example, the purchase of clothes can be considered.
3. Holidays: many non-custodial spouses have the child in their care during their holidays and therefore believe that they do not have to pay the monthly child support during that month. However, this is not the case, as the monthly figure corresponds to the pro rata payment over twelve months of a fixed annual amount established by the judge.

It should be noted that any other essential expenses for the child that are not covered by the above must be paid half and half by both parents. This should be done in the joint account held by both parents.

What happens if the liable spouse does not pay the maintenance?

This is a serious problem since non-payment of maintenance is criminalised in Articles 711 and 773 of the Criminal Procedure Act. First of all, these legal texts set a coercive fine that is intended to condition the non-custodial spouse for future payment. If he or she does not comply with these measures, a judge may even seize his or her assets in order to settle the debt.

For its part, each month's unpaid alimony starts to accrue interest immediately. In other words, the day after it is due, it is already increased by the delay. The applicable percentage is usually specified in the agreement signed by the couple at the time of divorce. However, when this is not the case, the judge may resort to the Consumer Price Index, i.e. the CPI, for the purpose of fixing it. It is necessary to file an official claim for its collection.

Conclusions on alimony

In short, alimony, which should never be confused with compensatory alimony, is established with the purpose of guaranteeing the maintenance of the children or any other related family member when there is an inequality generated by the change of lifestyle experienced after the separation.

Moreover, it should always be clear that the obligation to pay it corresponds to the non-custodial spouse and that, in the event that joint custody is determined, it is normal for the payment to be suspended in exchange for each parent taking responsibility for the expenses while residing with him/her. However, this does not cover extraordinary expenses.

We hope we have been of help to you in understanding all the intricacies surrounding such an important legal concept as maintenance. If you have any doubts, please consult our specialist lawyers. At G. Elías y Muñoz Abogados we are here to solve any type of legal problem you may have to face.