Alimony in joint custody

We cannot ignore the reality that, in many cases, there are parents who ask their ex-partner or the judge for joint custody in order to save on alimony. In fact, this is one of the main questions our family lawyers are asked when giving legal advice during divorce proceedings.

However, the adoption of this regime does not necessarily mean that the parents do not pay child maintenance, despite what one may think in advance if both parents bear the same expenses and spend the same amount of time with their children. As in most cases, it all depends on the circumstances.

When is maintenance approved in joint custody?

The aim of joint custody is to ensure that minor children grow up with both parents present. In addition, whenever possible, legislation and case law seek to ensure that they maintain a standard of living similar to that which they had when their parents were together.

In this sense, it is possible that the maintenance of the children may not be a great effort for one of the parents given their financial and employment situation. However, it may be for the other parent. This is especially common when within the marriage one of the two spouses (almost always the mother) reduces her working hours or looks for a part-time job that can be combined with childcare.

Therefore, it is very likely that if the judge considers that there is a financial imbalance between the two ex-spouses after the separation, he or she will establish the obligation to pay alimony in joint custody. Furthermore, the payment of the fixed amount will not prejudice the recovery of a compensatory allowance, if applicable.

The calculation of maintenance payments in shared custody

It should be clarified that, as a general rule, the amount of maintenance payments in joint custody is lower than that designated in single-parent custody. After all, it is assumed that, to a greater or lesser extent, both parents will be able to bear the costs of child maintenance, even if not equally.

Factors influencing the calculation of maintenance in shared custody

Judges usually take into account three factors when making the calculation. These are:

• The attribution of the family home: this is not an element considered by the tables of the General Council of the Judiciary, but judges usually take it into account. Especially, if the house is subject to a mortgage loan and there is one of the spouses who does not enjoy it within the shared custody regime.
• The time spent: joint custody does not necessarily mean that the children spend 50% of their time with each parent. For example, if the division is 70/30 or 60/40, the child maintenance will be adjusted accordingly.
• The financial capacity of the parents: this is probably the most important factor of all. In fact, it is the factor that will determine whether or not maintenance is necessary.

This last factor is linked to the needs of the children. The aim of the judges when setting a maintenance agreement is to ensure that these needs are met as far as possible. If one parent is in a worse financial situation than the other, he or she may try to compensate by means of maintenance.

So how is maintenance in joint custody calculated?

There is no exact formula for determining the amount. However, if we follow current case law, it is possible to understand that the so-called "living expenses" should always be divided 50/50. In particular, we refer to food and personal hygiene, clothing and footwear, housing and utilities, transport and everyday pharmacy costs.

On the other hand, we also have to talk about those considered as "non cohabitation expenses", which include extracurricular activities, hairdressing or mobile and landline telephony, for example. For the latter, percentages are usually set which may be different from 50%, although it all depends on the case.

All these factors mean that, as we said before, the amount of child maintenance under a shared custody regime is lower than if single-parent custody is established. For example, if we use as an example a couple with two children whose father earns 1,800 euros and whose mother earns 600 euros for her work, the man would have to pay about 200 euros per month to each of them. In the case of sole custody, the amount would rise to approximately 350 euros.

We hope that we have answered all your questions regarding the calculation of child maintenance when both parents share the care of their children. Especially if there is a parent with no income in joint custody. In any case, if you still have any questions, just contact us. One of our lawyers specialising in family law will be happy to advise you on everything you need.