Alimony amounts can always change

Along with the assignment of custody, the judicial process that determines the amount of alimony paid to a couple’s children is one of the most problematic parts of a breakup. First of all, it must be assumed that the amount will not be static, because over the years that such compensation is provided, it may fluctuate from more to less and even reach nothing, and then disappear.
 
In a guidance document regarding alimony amounts, the General Council of the Judiciary (CGPJ in Spanish) recognizes that one of the peculiarities of family law is the abundance of undefined legal concepts. In relation to family breakups, this abundance includes the concepts that refer to the establishment of financial benefits in favor of the children, which are of particular importance.
 
The words of the Civil Code that establish the “adaptation of the compensation to the financial circumstances and needs of the children at all times”, proportional “to the wealth or means of the person providing it and the needs of the person who receives it”, allow broad discretion. In fact, practice shows that faced with similar family groups with similar needs and financial availability, alimony amounts tend differ between courts despite corresponding to the same city, and sometimes even when they pertain to the same court.
 
Currently, an online tool available to all via the CGPJ’s website which allows users to get an idea of their alimony amounts depending on the type of custody, number of children and municipality of residence is proving to be very useful. The tool doesn’t link to judges, but it does give citizens clues of what to expect.
 
Since there are no fixed rules, (although yes, for some time now, there have been tables created by the CGPJ as well as the well-known “online calculator”), the guideline that lawyers and families rely on is jurisprudence. With respect to it, there are several curious elements which it is rather helpful to know about when facing a process of this nature. One relevant point is the tax treatment for what is paid: for example, this February, the High Court of Justice of Madrid (TSJM in Spanish) ruled in favor of a taxpayer who asked that the essential expenses for the support of his children that he deposits into a joint account with his former spouse, beyond the daily maintenance that is distributed in the shared custody agreement, be considered alimony. With this ruling, the TSJM allows him to deduct the money agreed to cover his children’s expenses from his personal income taxes. However, the previous judicial body had ruled that the children perceived the amounts to be given as a gift (animus donandi) from their father and not as a consequence of a legal obligation derived from a judicial ruling.
 
We have already mentioned on another occasion that Supreme Court jurisprudence has reaffirmed that in the case of a determination of “late” paternity, the parent who has supported the child’s expenses up to that point cannot ask the other parent for their part. In addition, in 2014 the Constitutional Court (TC in Spanish) dismissed a question of unconstitutionality raised due to the apparent contradiction of temporarily limiting the obligatory nature of alimony with the duty to provide assistance of every kind to your children, which is established in article 39 of the Constitution. For the TC, limiting the enforceability of alimony over time is justified in order to avoid a situation of “pendency”, which would be incompatible with legal certainty.
 
Jurisprudence offers countless points for consideration. However, one more which deserves a mention refers to the ruling of a Court of First Instance in Cádiz, which establishes that if the person paying the alimony has more children with another partner, the amount can decrease. The Supreme Court has established that there is no preferential claim in favor of the children born of the first union with respect to those from a subsequent union, the product of an alimony payer’s new relationship.
 
It could be concluded that an alimony ruling can lead to various surprises, because the concept of what is necessary for the development of a person evolves quickly.
 
 
Isabel Núñez
Partner at ICN LEGAL
 

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