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 principal obligations of the parents and a right of the minor children
, protected by our legal order.
What is included in alimony?
The article 142 of the Civil Code
understands the obligation of alimonyasall that which is indispensable for sustenance, room, clothing and medical care. It is, therefore, a right of the children to receive what is necessary to cover their needs for food, housing, clothing and medical care, 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 cause not attributable to him/her.
How is alimony 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 shall be proportionate to the wealth or means of the giver and to the needs of the recipient
and shall be established in the divorce settlement agreement or in the court judgment. The amount will depend on factors such as, among others:
The alimony shall be reduced or increased
- 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.
- Place of residence of the parent who must pay it and the needs of the one who must receive it.
- Place of residence of the minor children.
according to the increase or decrease suffered by the needs of the alimony and the fortune of the person who would have to satisfy them.
The Supreme Court
, in its sentence 55/2016, of February 11
, determined the obligation of the parent to pay the mother alimony 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 parents from their obligations to the children
(article 92.1 CC) and that it is an irrenounceable
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 appropriate measures to ensure 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 for two consecutive months or four non-consecutive months can imply a crime
, typified in our legal system and that can be punished with a prison sentence of three months to one year or a fine of six to 24 months.
The judge may extend the obligation to the children of legal age when they have no income of their own and are not economically independent, and live in the family home.
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