Although we’ve already addressed this topic in previous posts, as lawyers specializing in family law, we know it is a matter that continually elicits questions, so we’d like to return to it. We’re referring to alimony in a divorce case.
We know that this is one of the most sensitive issues that must be dealt with prior to the dissolution of a marriage, so we want you to be clear on what it consists of, how it is calculated, and other matters.
What does alimony mean?
Broadly speaking, alimony is a financial provision that one spouse gives the other after a divorce. In Spanish, it is known as a pensión compensatoria, literally a “compensatory pension”, because it compensates for an unequal or imbalanced situation between the spouses. The aim is for the spouse with fewer financial resources to maintain their economic status and purchasing power for a while. It isn’t a lifetime guarantee; it’s for a limited period of time and can only be obtained via a final court ruling. At ICN LEGAL, as lawyers who are former judges, we remind you that alimony is never retroactive, i.e. it isn’t collected from the moment the claim is filed. Instead, there must be a ruling, even if it is certifying an agreement approved by both parties.
What factors are considered when granting alimony?
First, the judge analyzes the facts of the marriage to confirm whether there is a financial imbalance that requires compensation. Matters such as the claimant’s dedication to their family, as well as that of their spouse, will be evaluated, especially if one of the parties has been exclusively devoted to handling the housework and parenting. The duration of the marriage must also be taken into account; in some cases, prior years of cohabitation can be included, if applicable.
Essential requirements for alimony to be granted
It is absolutely essential for a marriage to have existed and a divorce petition to have been filed. The person who believes they are entitled to this compensation must request it expressly in their petition.
To determine whether there is a situation of financial inferiority, the judge usually first considers the duration of the marriage and prior cohabitation, if applicable. This is because generally, the longer the marriage has lasted, the higher the risk of inequality arising; therefore,
it will be easier to grant alimony to the disadvantaged spouse following the divorce. The judge also considers other matters, such as the age of the spouse who needs to be compensated and their health status, because the older you are, the more difficult it is to re-enter the labor market.
At ICN LEGAL, as lawyers who are former judges, we also remind you that if the spouse with the better financial situation files the divorce petition without offering alimony, it can still be requested by the respondent via a counterclaim.