What is alimony in divorce

The compensatory pension in divorce is, without a doubt, one of the most controversial issues to face when managing the dissolution of a marriage. As lawyers specialising in family law and alimony, we would like to tell you what it consists of, how it is calculated and many other questions related to it. We would like to tell you everything you should bear in mind in this regard.

What is a compensatory pension?

The compensatory pension is basically a financial benefit that one of the spouses has to provide to the other after the separation or divorce of the marriage and that comes to compensate, redundantly, a situation of inequality or imbalance between the two. This is the definition that can be extracted from the court rulings to date.

The purpose of the compensatory pension is not that the party with fewer economic resources, once the marriage is dissolved, maintains the economic level and purchasing power that he or she enjoyed during their life as a couple. Nor can it be understood as a lifetime guarantee since it is not perpetual in nature. It is only, as mentioned above, to compensate for an imbalance.

The compensatory pension in divorce can only be obtained by means of a final court decision. In fact, it is not retroactive in any case, which is why it does not start to be paid from the moment the claim is filed.

What is taken into consideration when awarding alimony?

The first thing the judge will do is to analyse everything that happened during the marriage to determine whether or not there has been an economic imbalance that requires compensation. In this regard, he or she will take into account the dedication of the plaintiff and his or her spouse to the family, especially in the event that one of them has focused exclusively on housework, the established property regime and the collaboration between the two of them. It may also take into account the situation that existed prior to the union.

What are the prerequisites for the granting of a maintenance allowance?

Obviously, it is a 'sine qua non' requirement that there has been a marriage or, failing that, a common-law relationship between both parties, although it is true that, in this case, there are a series of special conditions which we will deal with a little further on. It is also essential to file a separation or divorce lawsuit, as the granting of this pension requires a final court judgement.

The regime to which the couple was entitled at the time of marriage is not relevant. This type of pension can be granted whether it belongs to the community property regime, the separation of property regime or the legal participation regime.

With regard to whether the separation or divorce generates a situation of economic inferiority in one of the parties, the judge usually takes into account the duration of the marriage since, in general, the longer it is, the greater the risk of it occurring and the greater the tendency for the pension to be granted. Age, health situation and, obviously, dedication to the family are also often taken into account.

This means that even if the partner claiming the pension was working at the time of separation or divorce, he or she can still get the pension without any problem.

What about unmarried couples?

There is a special situation for unmarried couples. As we said above, as in the case of married couples, either party is entitled to apply for and receive it, but it is possible to lose it for reasons beyond their control.

For example, if the party receiving the compensatory pension marries or marital cohabits with another person, he or she loses the right to receive it from his or her former partner. With regard to this last aspect, it should be pointed out that the mere fact that there is a relationship between the two that has resulted in them living together produces this condition that would annul the right.

Proving that such a relationship exists is relatively simple or complicated, depending on how you look at it. In general, judges can take into account facts as insignificant as the existence of messages of affection on social networks, testimonies from family and friends that accredit the existence of the relationship, shared bills for expenses generated in the home, etc.

Is there a time limit for applying for it?

The truth is that there is no legal time limit, since the payment of the compensatory pension in divorce must begin to take place at the moment when there is a final court judgement, as we also said above. However, it should be noted in this regard that the imposition of the claim should be made as soon as possible. The reason why this is so is that judges, if they have an intuition that the spouse requesting it is living long enough without receiving income from the other spouse, usually understand that there is no economic dependence that justifies its concession.

What is the duration of the maintenance?

If the judge decides that it is appropriate to grant the compensatory pension in the divorce, he or she will determine, in the judgment, whether it is temporary, i.e. only payable for a certain number of months, or indefinite. If the latter is the case, it should be borne in mind that this does not mean that it is for life, but simply that its payment will be obligatory as long as the receiving party does not meet any of the requirements mentioned above for it to be terminated.

What is the amount of maintenance?

This is a difficult question to answer as it often depends very much on the case. However, it is most common for the judge to determine that under no circumstances should the amount of alimony, if it is also required, and the amount of compensatory maintenance exceed 30% of the net income of the party liable to pay.

In addition, each year, the latter must automatically update the amount in line with the CPI. This means that you do not have to wait for the receiving party to request it.

Does alimony affect personal income tax?

The answer is yes. In fact, in the case of the compensatory pension to which we refer, the creditor party is entitled to a reduction in the taxable base of the amount paid to the former spouse as dictated in the agreement regulating the rule. In particular, the latter determines that this is earned income. However, it should be noted that there are exceptions and that it does not count as alimony.

Conclusions on the compensatory pension

As we said at the beginning of this article and as we have confirmed during its drafting, the compensatory pension is a controversial fact that depends on a large number of variables, which is not retroactive and whose payment must be preceded by a final court judgement. For this reason, in the event that it is considered that there is a right to receive it, it is essential to apply for it as soon as possible. It is also true that the creditor's financial security is not compromised by it, since its amount, added to that of maintenance, may never exceed 30% of the creditor's income.

We hope we have been of help and that you have a better understanding of what this type of alimony consists of. If you have any questions or need our services as expert lawyers, please do not hesitate to contact us.