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Is it possible to compel the payment of alimony in a divorce case with shared custody?
The answer is yes.
The agreement of a shared custody does not imply that the payment of alimony is not necessary, since it is one of the main obligations of the parents and a right of the minor children, protected by our legal system.
What is included in the alimony?
Article 142 of the Civil Code understands the obligation of alimony as everything indispensable for sustenance, room, clothing and medical assistance. It is, therefore, a right of the children to receive what is necessary to cover their needs related to food, housing, clothing and medical assistance, as well as all the expenses related to their education (school, extracurricular activities, etc.) while they are minors. Likewise, it also corresponds to children of legal age when they have not completed their education for a reason not attributable to them.
How is it calculated?
On the other hand, Article 143 establishes the obligation of both parents to provide alimony to their children. Regarding the amount to be paid as alimony, Article 146 establishes that the amount will be proportionate to the wealth or means of the giver and the needs of the recipient and will be established in the divorce settlement agreement or in the court decision. The amount will depend on factors such as, among others:
The number of children.
The needs of the children.
Economic income of the parent who must pay it and the needs of the one who must receive it.
Place of residence of the minor children.
The alimony will be reduced or increased according to the increase or decrease suffered by the needs of the provider and the fortune of the one who would have to satisfy them.
Compulsory nature of its payment
The Supreme Court, in its judgment 55/2016, of February 11, determined the obligation of the parent to pay alimony to the mother for the children of both and over whom they shared custody, due to the fact that the parent was unemployed, thus pursuing the High Court to avoid a situation of disproportionality when the children were with one or the other parent.
In any case, it is clear that divorce does not exempt the parents from their obligations towards the children (article 92.1 CC) and that it is an unrenounceable obligation: any agreement to the contrary is null and void. It will be the Judge who, in any case, determines the contribution to be paid by each parent and adopts the convenient measures to assure the effectiveness and accommodation of the benefits to the economic circumstances and needs of the children. The Judge will be able to extend the obligation to the children of legal age when they lack own income not being economically independent, and they cohabit in the family domicile.
Failure to pay the alimony established in the judicially approved agreement or in the judicial resolution during two consecutive months or four non-consecutive months can suppose a crime, typified in our legal system and that can be punished with the penalty of prison from three months to one year or a fine from six to 24 months.
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