Child Support in a Divorce

WHAT IS THE RIGHT TO MAINTENANCE PAYMENTS: 

Maintenance is understood to cover everything essential for:

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Maria Serra

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Family lawyer and mediator in Barcelona

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1. Basic subsistence
2. Housing
3. Clothing
4. Medical care for the recipient
5. Education expenses if the recipient is a minor
6. Continuation of education beyond the age of majority, where studies have not been completed for reasons not attributable to the recipient, provided that satisfactory academic progress is maintained.
7. Funeral expenses, where not otherwise covered.
   
   

 Requirements for claiming maintenance: 

1. Financial need on the part of the claimant
2. A family or kinship relationship between the claimant and the paying party
3. Sufficient financial means on the part of the person obliged to pay

Child maintenance for minor children must be understood in the broadest possible sense. By contrast, maintenance for adult children is interpreted strictly.

Adult children / Minor children

For minor children, education and training costs are always included in maintenance. For adult children, however, the law appears to require parents to cover training costs only where the child began their studies before reaching adulthood and has not yet completed them for reasons not attributable to the child themselves.

The purpose of this rule is to prevent adult children from prolonging their studies unnecessarily, negligently, or irresponsibly. As a general principle, a child who enrols in a university or training centre solely to preserve their maintenance entitlement has no right to receive it.

There is an extensive body of case law on this issue. The following are notable examples:

1. A 28-year-old who had abandoned their studies, with no explanation on record for why they were not working (Barcelona Provincial Court, 27/07/98)
2. Maintenance was refused for an incapacitated adult child who owned real estate, the sale of which would have been sufficient to meet their living needs (Barcelona Provincial Court, 16/03/06)
3. Maintenance was refused to an adult child who, instead of seeking employment, was engaged in voluntary work
4. Maintenance was refused to an adult child who was receiving a sports scholarship sufficient to cover their living expenses

The burden of proving need falls on the claimant, except where the recipient is a minor, in which case need is presumed.

Funeral expenses are not considered a need in the strict sense, given that the maintenance recipient is deceased.

In this regard, the Civil Code provides that death is a ground for terminating the maintenance obligation. It should also be noted that funeral expenses are the responsibility of the heir; consequently, the law provides that they form part of the maintenance obligation only where they cannot otherwise be met.

When does the right to maintenance arise?

The right to maintenance arises from the moment of need; however, maintenance cannot be claimed for any period prior to the date on which a formal judicial or out-of-court claim was made.

Where the recipients are minor children, maintenance may be claimed for a period of up to one year prior to the date of the judicial or out-of-court claim, provided that the delay in making the claim was attributable to the person obliged to pay it.

How is the amount of maintenance calculated?

The amount is determined in proportion to the needs of the recipient and the financial means and resources of the person or persons obliged to provide maintenance.

The parties may, by mutual agreement, establish a basis for the annual adjustment of maintenance payments in line with changes in the Consumer Price Index (CPI).

What does maintenance cover?

The courts have drawn a distinction between:

1. ordinary expenses, subdivided into those that are essential, foreseeable and recurring
2. extraordinary expenses, subdivided into those that are essential, unforeseeable and non-recurring
3. extracurricular expenses, which are discretionary and subject to agreement between the parents.

As a general rule, it is considered that:

1. textbooks, school supplies, enrolment fees, school meals, and all expenses arising from the school's compulsory activities are ordinary expenses
2. medical, pharmaceutical, dental, orthodontic and optical expenses and similar costs not covered by Social Security are extraordinary expenses
3. expenses for first communion celebrations, driving lessons, summer camps, trips abroad and end-of-year school trips are voluntary, and therefore enforceable only where the parties have expressly agreed to them.

Allocation of the right to use the family home:

Case law establishes that the allocation of the right to use the family home, to the extent that it corresponds to the paying parent's ownership share, is treated as a contribution towards child maintenance and, where applicable, maintenance for the former partner (Barcelona Provincial Court, Section 12, 18/03/08 / High Court of Justice ruling of 04/04/2011).

It is also common for the care provided by the custodial parent to the child in their own home, as well as the time spent living together, to be taken into account when assessing compliance with the maintenance obligation.

The amount cannot be made conditional on a future event.

CPI ADJUSTMENT OF CHILD MAINTENANCE PAYMENTS 

The most common arrangement is to agree that child maintenance will be updated in line with the Consumer Price Index (CPI) published by Spain's National Statistics Institute (INE) for the country as a whole, although it is also possible to agree that the relevant regional CPI figure will apply instead.

It is well-established case law that, where no specific index is stipulated, the national CPI for the whole of Spanish territory will apply (Judgment ABCN, 16/06/09).

The adjustment is automatic and the right to it does not lapse, even where entitlement to unclaimed maintenance payments may have become time-barred. There is no requirement for the other party to make a formal demand, since the obligation to review child maintenance in line with the CPI arises directly from the court order or from the agreement reached by the parties and subsequently ratified by the court.

Increases in the maintenance amount are applied cumulatively.

The spouse paying child maintenance for their joint children is not entitled to deduct those payments from their Personal Income Tax (IRPF) taxable base (this has been the position since 1992).

However, the paying parent may treat the maintenance payments separately from the remainder of their taxable base (this does not apply in cases of shared custody), so that the tax scale is applied separately to the maintenance amount and to the remaining taxable income. This reduces the progressive effect of the tax and results in a lower overall tax bill.

For the child receiving the maintenance payments, such income is treated as exempt for Personal Income Tax (IRPF) purposes.

The maintenance obligation must be fulfilled in money and paid in advance on a monthly basis.

If the maintenance creditor dies, their heirs are not required to return the maintenance payment corresponding to the month in which the death occurred.

The maintenance debtor may choose to fulfil the maintenance obligation by taking in and housing the entitled person at their home, unless that person objects on reasonable grounds or cohabitation is not viable.

Key Features of the Right to Maintenance

This right is non-waivable, non-transferable, and cannot be seized or set off against any debt that the person obliged to provide maintenance may have against the recipient.

The maintenance recipient may, however, set off, waive, or settle arrears accrued after the date of their judicial or extrajudicial claim, and may also transfer by any legal title the right to recover them, without prejudice to any right of recourse.

The scope of the maintenance obligation is not affected by the manner in which custody is exercised.

Case law consistently affirms the need to set maintenance payments even in cases of shared custody.

The time each parent spends with the child and the expenses each assumes must be weighed in order to determine each parent's individual obligation.

Maintenance costs include upkeep and housing expenses borne directly by the parent with whom the minor child is living at any given time, and this determines the extent of each parent's obligation.

There are also expenses that arise outside of day-to-day living arrangements, such as school fees, extracurricular activities, clothing, and medical costs, among others.

Where both parents have similar financial means and spend a similar amount of time with the children, each parent covers the children's day-to-day living costs during their respective time with them.

The remaining expenses, including school fees, extracurricular activities, routine medical costs, and any other recurring expenditure, may be met in the following ways:

1. through a shared bank account
2. by dividing the expenses between the parents, with each assigned responsibility for specific costs
3. by establishing a fixed contribution from one parent payable to the other, who then takes responsibility for settling those costs.

Where the parents' financial means differ, the principle of proportionality requires the parent with greater resources to make a larger financial contribution.

Termination of the maintenance obligation:

The grounds for terminating a maintenance obligation are as follows:

1. The death of the person receiving maintenance or of the person obliged to pay it.
2. Divorce or a declaration of nullity of marriage.
3. A reduction in the income or assets of the person obliged to pay, to such an extent that meeting the obligation would leave them unable to cover their own needs or those of others with a preferential right to maintenance.
4. An improvement in the living conditions of the maintenance recipient, such that the obligation to provide support becomes unnecessary
5. The fact that the maintenance recipient, even if not a forced heir, incurs in any of the grounds for disinheritance set out in Article 451-17 of the Catalan Civil Code, unless the obligated party has granted forgiveness or the parties have been reconciled
6. The removal of parental authority over the obligated party, where the maintenance recipient is one of the parents.

The previous legislation also provided for the termination of maintenance obligations on grounds of disinheritance. What has changed is the introduction of a new ground for disinheritance: the manifest and sustained absence of any family relationship between the deceased and the forced heir, provided that this is attributable exclusively to the latter.

The requirements for the maintenance obligation to be effectively extinguished are set out in the relevant legal provision (Article 237-13)

1. a complete breakdown of the family relationship between parents and children
2. that the breakdown must be manifest
3. that it must be sustained and consistent over time
4. that it must be attributable solely to the child, in other words, it must be demonstrated that the parent has always wished, and continues to wish, to maintain contact and a relationship.

Case law establishes that these requirements must be interpreted restrictively ("grounds for disinheritance, as provisions that limit rights, in this case, the statutory right to maintenance between relatives, are to be interpreted restrictively": Barcelona Provincial Court, Section 18, Judgment 267/2014, of 22 April 2014).

It is therefore necessary to establish a complete absence of family ties between parents and children; that this absence of any relationship is publicly known; that it has been sustained over time, in the sense that there has been no contact or interaction whatsoever between them; and that the cause is attributable solely to the child, with no involvement on the part of the parents, meaning it must be possible to demonstrate that the parent genuinely sought communication and wished to remain informed of the child's daily life (Provincial Court of Tarragona, Section 1, Judgment 20/2014, of 28 January 2014).

In relation to a minor child, case law takes the view that the absence of a relationship is presumed to be attributable solely to the child where it persists beyond the age of majority through acts of clear avoidance, such as failing to inform the parent about their studies, address, or other significant matters, including a change of surname that the child carried out without notifying the parent, stating that they did not consider it important (Provincial Court of Barcelona, Section 18, Judgment 192/2012, of 15 March 2012).

During the child's minority, it must be demonstrated that the breakdown is attributable to the child by evidencing a clear and repeated pattern of detachment on their part, alongside proof that the parent actively sought to restore the relationship or, at the very least, made genuine efforts to establish communication and contact with the child.

The underlying rationale of the provision in question is rooted in the principle of family solidarity, which breaks down when any of the grounds for disinheritance are present. Such grounds operate as an exception to the statutory maintenance obligation and constitute a penalty imposed on a person whose conduct within the family unit is deemed to undermine personal dignity, is morally reprehensible, and merits legal sanction (Provincial Court of Barcelona, Section 18, Judgment 267/2014, of 22 April 2014).

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