When a separation or divorce occurs in a couple with children, both parents have the obligation to provide food. However, the one who does not have custody and who does not reside with them, must do so in the form of alimony, a figure that usually creates more controversy than it seems. Therefore, here we want to explain what alimony is and what exactly it includes.
What is alimony?
The alimony for the children is an economic amount that the noncustodial parent must pay to meet the necessary expenses needed to live their offspring. In fact, according to what is stipulated in article 142 of the Civil Code, ‘food’ is understood to be all those that have to do with sustenance, clothing, medical care and housing or residence.
Alimony and what exactly includes
First of all, we must note that both parents have the obligation to provide food to their children while they are minors. But also when they have reached the age of 18 and live in the family home or have become emancipated as long as they do not have their own economic income for reasons that are not directly attributable to them. This would happen, for example, if the young person continues to pursue university studies at that age.
In addition, within the meaning of food according to the Civil Code, it is also the obligation of the parents even if the child in common has not yet been born. This is the reason why all expenses related to childbirth and pregnancy can be included in the pension.
Now, alimony includes two different types of expenses:
Ordinary expense is understood as any periodical and foreseeable disbursement of money that is essential for the support of children. These are some examples:
- The daily feeding.
- School fees: materials, textbooks, uniforms, transportation, etc.
- The House.
- Health care.
- Personal and hygiene items.
- Leisure activities.
- Extraordinary expenses
On the other hand, extraordinary expenses are those that are not included in alimony due to their inherent eventuality and the impossibility of anticipating them. However, not all extraordinary expenses are the same:
- Extraordinary expenses necessary: those that arise unexpectedly but that have to be incurred by the parents. We are talking, for example, about carrying out an orthodontic treatment. The consent of the non-custodial parent is not required for it to be carried out and to have to face it.
- Extraordinary expenses not necessary: here the consent of the parent without custody is essential. You may not pay them if you do not want to, in which case it will be the other spouse who will have to face them alone. We are talking, for example, about the fee for a gym, sports classes, etc.
Usually, these extraordinary expenses are provided for in the regulatory agreement or judicial divorce decree. Specifically, the rule says that their payment must be made at 50% between the two parents.
Do I have to pay alimony even if I am going to spend a month with my son?
These ordinary and extraordinary expenses are those that constitute alimony for the children. In addition, it must be paid by the parent who has the obligation to do so during all the months of the year. In other words, even if, according to the divorce decree or regulatory agreement, the child has the right to spend a month with him on the occasion of his vacation, he must also pay that month.
This is due to the fact that the child support is considered by the competent courts to be a mandatory annual amount, the payment of which is prorated monthly.
How is the amount of alimony determined?
This is somewhat difficult to answer since it depends on each specific case. However, we can say that there are three fundamental factors that influence:
- The heritage of the parents.
- The number of children.
- The general and specific needs of each child.
Based on this, and as long as there is no prior agreement between both parents, the judge will decide what amount is fair. However, if the conditions of the father and / or mother change in the future, the amount of alimony can be modified.
Modification of the amount of alimony
This appears regulated in article 142 of the Civil Code. Specifically, that text provides that the amount of the pension must be increased when:
- The assets of the spouse obligated to provide alimony or alimony grows substantially after having signed the divorce agreement or after the judicial ruling regulating it was published.
- The needs of the children have been increased. This usually happens when they have to go to university and have to go outside the place of residence to study.
- The assets of the custodial spouse, that is, of the one who lives with the children, has been significantly reduced, in which case the other parent must compensate the circumstance, at least temporarily.
But, in the same way, the amount of the alimony can be reduced if the assumptions contrary to the previously established ones are given, that is, if the patron’s patrimony is reduced, if that of the custodial parent is significantly increased or if the reduce the needs of children.
Temporary or definitive suspension of the obligation to provide maintenance
If there are children with the right to obtain food from their parents, the pension cannot be permanently suspended in any case. In fact, this could only be done temporarily and very exceptionally if the non-custodial spouse did not have any financial means.
These are the other assumptions that suppose the extinction of the obligation to give food to the children:
- The parent forced to give food dies.
- The son increases his wealth or has a trade or profession that allows him to guarantee his subsistence by himself.
- The son is disinherited after committing an offense legally contemplated for it.
- The child’s need for food is due to his lack of job application or misconduct.
That said, we want to emphasize that age does not in any way lead to the suspension or extinction of the obligation to provide food. All those children over 18 who continue to reside in the family home and who lack their own income for reasons that cannot be attributed to them must continue to receive the pension.
Non-payment of alimony
In the event that the non-custodial parent does not pay the amount of the pension, the non-custodial spouse has the power to claim it within a period of up to 5 years. To do this, you must undertake a civil procedure of execution of sentence in order to urge you to pay. If it does not, the competent judge can decree the seizure of the payroll or of any other income that the feeder has. In addition, it should be noted that not paying alimony can lead to the imputation of a crime of family abandonment.
We hope with this we have clarified your doubts about alimony and what it includes.