What is alimony in divorce and what does it consist of?

Divorce is a particularly sensitive time in anyone's life. However, it becomes even more complicated when children are involved. In such cases, additional aspects and variables become part of the settlement agreement or judgment. In particular, as lawyers specialising in family law, we would like to focus on everything you need to know about alimony and maintenance.

Preliminary precepts of alimony in divorce

The first thing we want to say is that under no circumstances should the terms alimony and maintenance be confused. In this sense, the former refers to the financial compensation (hence its name) that one of the parties makes to the other because, after separation, he or she is left in an unequal situation for whatever reason. For example, this may be because she gave up her professional career to take care of the children of both parties.

On the other hand, alimony is the maintenance that must be paid by the spouse who does not have custody of the children in order to meet their maintenance expenses until they become independent. It is a duty imposed for the purpose of securing subsistence and comprises two parts. On the one hand, there is the maintenance creditor, who has the right to demand it, and, on the other hand, the maintenance debtor, who has the legal and moral obligation to provide it.

Therefore, it can be concluded that the compensatory allowance is not a maintenance allowance, but one of a remedial nature of an inequality generated by the economic imbalance produced between the two spouses during the time the marital relationship lasted. Moreover, it cannot be agreed ex officio by the judge, as is the case with alimony, since it is a dispositive right that does not affect the children. This means that both types of maintenance and alimony are compatible if the necessary circumstances are met.

Where is alimony regulated?

The obligation to provide maintenance and, therefore, this pension appears in article 142 and subsequent articles of the Civil Code. These articles state that it is an expression of family solidarity and it is established as the duty to provide for the needs of those who require it. It does not refer exclusively to the separation of a marriage, but can also be extrapolated to relatives with a certain kinship.

In the case of separation or divorce, it is obvious that the obligation lies with the non-custodial spouse.

When does the obligation to pay maintenance arise?

This is reflected in Article 148 of the Civil Code. Specifically, it states that the obligation arises at the very moment when maintenance is required. Therefore, in the event that the obligation is established, it is not payable from the moment the divorce decree is issued, but from the date on which the lawsuit was filed.

How is the amount of maintenance fixed?

This is a rather complicated question. In this regard, the Civil Code establishes that, once the marital union has been dissolved or there has been a separation, both parties are obliged to meet the maintenance needs of their children. However, in practice, only the economic amount to be paid by the parent who does not have custody and who, therefore, does not live with the children, is fixed.

At this point, it is the judge who has to assess the attention that the children need, what it means to have custody of them and what it means to be in their care. In addition, the respective monetary amounts are taken into account, i.e. the financial earnings of both parties. On this basis, a certain amount is set.

It is true that the Civil Code does not oblige maintenance to be paid by setting a certain amount each month as long as there is an agreement between the parties. However, this is the most common option, as any other system could be more complex and more burdensome for either party.

In addition, maintenance does not only cover the child's food expenses. These aspects should be taken into account as they are the most controversial:

1. Education expenses are included in the maintenance. Within this section, not only those corresponding to primary and compulsory secondary education are included, but also the Bachillerato and any other higher education, whether university or not, as long as it can be demonstrated that it is being taken advantage of.

2. Extraordinary expenses are shared. Maintenance is intended to meet the periodic, ordinary and foreseeable needs of the child. Therefore, these expenses would not be covered. If they occur, they should be borne by both parties.

3. Holidays. On many occasions, the non-custodial parent interprets that, if he or she has the child with him or her during the month of holidays, he or she is exempt from the payment of maintenance. However, this is not the case. This is because the monthly amount is the result of a lump sum which attempts to quantify on a monthly basis an annual pro-rata basis. This means that the figure fixed is for the whole year and that the amount paid monthly is the result of dividing it by twelve.

What happens in the event of non-payment of maintenance?

Non-payment of maintenance is covered by articles 711 and 773 of the Criminal Procedure Act. Specifically, these articles establish the imposition of coercive fines with the purpose of conditioning the behaviour of the obligor. In the event that, even so, the debtor persists in his attitude, it is possible to make effective measures of seizure of his assets, always fixed to the amounts that have not been paid.

There is another important aspect of non-payment of maintenance. This is that, once the debt is due without having been paid, interest for late payment begins to accrue for the delays incurred.

The accrual of interest for late payment is difficult to determine. However, it is most often determined by reference to the Consumer Price Index, although other types of compensation can also be established by the court. Moreover, they are only applied from the moment an official claim is lodged in an enforcement procedure.

Conclusions on alimony

In short, alimony after separation should never be confused with compensatory alimony because, while one responds to a need generated by the obligation to provide food for the children, the other responds to an inequality caused by the way of life followed by the couple during their marital union.

Moreover, the responsibility and duty to pay is always that of the non-custodial spouse and non-payment can lead to heavy fines, high interest payments and even seizure of assets. This should always be claimed through civil proceedings. We hope we have been of help and that now you have everything clearer about alimony, if you need our services as expert lawyers do not hesitate to contact us.