Suspension of child support due to lack of income

In a previous post framed by our services as lawyers specializing in family law, we reviewed the rules that determine whether child support payments can cease after a divorce. A notable aspect is that all the conditions established for this purpose (according to the provisions of article 152 of the Civil Code) are directly linked to the recipient instead of the person obligated to pay child support, with one exception: situations in which the latter, due to a reduction of their wealth, is unable to make the payments “without neglecting their own needs and those of their family”. Today we’re going to delve into what this provision means in practice.

The first thing that needs to be clarified is that case law has framed the ability to suspend payment of child support as an exceptional measure that is always temporary: it is a suspension, never an elimination. In this regard, the mandate established in article 39 of the Spanish Constitution, which determines parents’ obligation to provide assistance of every kind to their children, is often cited. Thus, the criteria for granting a suspension are limited to proven situations of extreme poverty which prevent the payments from being made by any means.

It is worth noting two additional issues that have been settled by case law which help define the circumstances of a suspension of the benefit. The first is the notion that any source of income to which the interested party has access must first be used to address these obligations, even when it is support they are given by relatives or other third parties. A July 15, 2015 Supreme Court ruling provided that even when a temporary suspension is granted, “the slightest presumption of income, no matter its origin” would be sufficient to return to the usual payment regime. We must also remember that a person’s standard of living is calculated not only by their income, but also by their expenses.

Another important concept is that of the minimum subsistence amount. In several rulings related to disputes over a parent’s lack of income, the courts have established a minimum amount necessary to cover the recipient’s needs. In practice, it is a solution that seeks a balance between the obligation to provide support and a lack of income.

If you’ve encountered a conflict related to the payment of child support and want the assistance of lawyers specializing in family law who can analyze your situation exhaustively, don’t hesitate to send your query to ICN LEGAL’s team of lawyers who are former judges.

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