The Maintenance Allowance

The maintenance allowance means everything that is indispensable to sustain us: food, shelter, clothing and medical care. Also, it refers to the education and training the children or adults who have not completed their training receive. The maintenance allowance may also include the costs of pregnancy and childbirth if they are not otherwise covered. It is mandatory for maintenance to be paid by the spouses for the children, therefore, there is no way out when it comes to this matter related to divorce and children.

Meeting the requirements is imposed by the sentence of nullity, separation or divorce and it is delivered after the processing of the relevant procedure and the person who is obliged to pay is set, the amount and the basis for updating (usually will be the Consumer Price Index), the period and form of payment.

The amount of alimony depends on two circumstances:

- The income of the person who is obliged to pay it.
- The needs of the beneficiary.

There are some European countries which have a legal scale for this alimony, but there are also others which do not have one, this alimony being established by the judge, according to personal reasoning and to the margins imposed by divorce law. Subsequently, this amount also may be increased or decreased depending on the judicial needs of the beneficiary and the increase or decrease of the economic resources of the obligor.

The changes in the amount of maintenance allowance are made through appropriate judicial procedures and they are not effective until the final sentence is pronounced. This includes, for example, that the spouse who pays the maintenance for the children, cannot by themselves alter the amount because their income has experienced a reduction: they have to apply for it in court.

The obligation to pay maintenance ceases when:

-  The obligation to provide it expires
-  Resources that are required are reduced to the point in which the survival of the payer and that of their
   new family are endangered
- The person receiving the allowance exercises a profession or trade or their economic situation has
   improved so that they do not need the maintenance allowance anymore
- If the one who receives the allowance makes some of the mistakes that lead to disinheritance
- If due to misconduct or lack of application for work, they lose their entitlement to allowance for the
  duration of their behavior.

In principle, the maintenance allowance should be paid until the children reach adulthood. However, if after reaching this age, they are still studying or have no means of subsistence, the children may require allowance until they are able to earn their own living.

In these cases, the recovery of maintenance should be performed by the child directly, but they may not do so on behalf of the parent with whom they live together.

For its part, the breach of the duty of support involves the initiation of the procedure for execution on the assets required and also generates criminal liability: the lack of payment for two consecutive months or for four non-consecutive months constitutes a crime of family abandonment and it is to be punished by imprisonment from 3 months to 1 year or a fine between 6 to 24 months.

It is always a good idea to consult a lawyer as the lawyer can give you the proper advice as to whether to initiate any kind of legal action or not.

The Alimony

The court sets spousal support to repair the economic imbalance that the marital breakdown can cause with one of the spouses. The pension is set up to compensate, for example, the dedication of one spouse to homecare and to their family for the entire duration of the marriage or partnership. The amount of the pension is fixed by the judge on the basis of the income and property of the person to satisfy.

In some European countries, there is not any tariff that the judge must comply with when determining spousal maintenance. Therefore, the judge can set a specific amount according to his or her sole discretion, within the range of the law. Also, there is no time limit, but its duration will depend on the duration of cohabitation and the recipient's ability to obtain their own financial resources to place them at a standard of living similar to that enjoyed during marriage. Thus, the recipient's work does not lead, in principle and automatically, to their extinction.

The alimony is sought in the divorce procedure when the perception of the spouses is not compatible with the maintenance payments. Therefore, the procedures for provisional measures shall be fixed for the disadvantaged spouse, the alimony being replaced by the alimony in the decree of separation and after the processing of the due lawsuit.

You can obtain the alimony established in the decree of separation in the procedures for divorce, but if it is not recognized in the separation procedure, it does not remain valid after the divorce.

The amount stated in the decree of separation is updated every year according to the change in the Consumer Price Index published by the National Institute of Statistics. The amount of the pension can be modified in court in cases where the beneficiary can improve or worsen their economic situation. These same circumstances may also lead to termination of alimony.

For its part, the liquidation of community property after separation or the divorce proceedings lead to the extinction of the board unless it concurs with a change in the economic circumstances of the obligor or the assets seized after settlement produce a return to overcome the imbalance that led to its establishment.

The non-payment of alimony, like that of child support, can result in the commission of a crime of family abandonment, which is punishable by imprisonment from 3 months to a year or a fine for 6 to 24 months.

It is always advisable to obtain the advice of a lawyer who, in view of the peculiarities of each case, will inform you whether to initiate the appropriate legal action for the pensions divorce or not.