Understanding Alimony: Modification, Cancellation, and Legal Insights in the US
In any separation or divorce process, it is of great importance to ensure the care and well-being of the children , with alimony or alimony playing a transcendental role .
Based on the principle of family solidarity, both parents are obliged to provide support to minor children and also to adults who live in the family home and lack their own income for reasons not attributable to them.
In this article we are going to focus on alimony in US . To find information related to alimony in other countries, we recommend:
- Alimony in Mexico
- Alimony in Argentina
What is meant by food?
According to our Civil Code, food is defined as:
Food is understood to be everything that is essential for sustenance, housing, clothing and medical care.
Food also includes the education and instruction of the obligor while he is a minor and even afterward when he has not completed his training for reasons not attributable to him.
Food will include pregnancy and childbirth expenses, insofar as they are not covered otherwise.
One of the most frequent doubts, when we face a breakup of marital coexistence, is what expenses for our children should we cover?
We can distinguish two types of expenses: ordinary and extraordinary .
Ordinary expenses are all those expenses that are foreseeable, periodic and necessary for the support of children .
Among them we will mention the following: food , decent housing , medical assistance , school expenses (tuition, uniform, materials and books, cafeteria, school transportation), personal belongings, health care, leisure (mobile phone, cinema, going out with friends …), etc.
These ordinary expenses are what constitute the alimony .
A question we must ask is: do we have to pay alimony during the vacation period? The answer is yes , unless otherwise established in the regulatory agreement or divorce decree .
This is what the majority of the Courts consider when they understand that this food benefit is a one-time benefit, which is not set based on certain monthly expenses .
This is a lump sum annual sum whose payment is prorated monthly , including, therefore, the amount corresponding to the vacation period that the children enjoy in the company of the person obliged to pay.
Extraordinary expenses are those eventual expenses that cannot be foreseen when alimony is established.
Within extraordinary expenses we can distinguish between:
- Necessary expenses : such as necessary medical treatments not covered by social security, which do not require the consent of the non-custodial spouse.
- Non-necessary expenses : such as dance classes or orthodontics, which do require the prior consent of the non-custodial parent.
The fixed pension does not include these extraordinary expenses , they are determined separately.
Generally the divorce decree refers to them and the proportion of which each parent is responsible, which is usually 50%.
How to request alimony?
Within the divorce procedure, child support will be established, either by mutual agreement between the spouses or in a contentious manner in the absence of consensus.
The divorce decree will determine the amount, method of payment and updating of the established alimony.
Factors that influence the amount of alimony
What factors are taken into account when calculating alimony ?
- The needs of the children.
- The number of children.
- The assets of both parents.
It is important to clarify that alimony may also be requested by couples who have not married , although it would be in a different procedure than the breakup of the de facto couple . In both cases it is mandatory to be represented by a solicitor and assisted by a lawyer.
The divorce procedure or, where applicable, the procedure for parent-child measures , will be filed before the Court of First Instance of the couple’s last place of residence.
Modification of alimony
The amount of alimony established in the separation or divorce ruling may be modified (according to the provisions of a Civil Code):
- When children’s needs increase or decrease
- When the assets of the person obliged to satisfy them increase or decrease
Increase in the amount of alimony
An increase in the amount of the pension may be requested in the following cases:
- Increase in the child’s needs . For example, when the child goes to university, the educational expenses may be higher and, therefore, her pension must be increased.
- Increase in the assets of the person obliged to give them. If there is a substantial increase in the obligor’s income after the divorce decree, and it can be proven, the modification of the amount of the pension will proceed. It may not be a temporary increase in assets but rather a permanent one.
- Decrease in the assets of the custodial spouse (parent who lives with the children). A substantial decrease in the income of the custodial parent may also justify an increase in the amount of alimony.
Decrease in the amount of alimony
It is appropriate to request a reduction in the amount of alimony when:
- Reduce the needs of the children . It would be the case, for example, that the child obtains a scholarship to pay for his or her studies.
- Decrease in the income of the obligor . The following requirements must be met:
- The reduction in income is significant and not temporary .
- It can be demonstrated beyond doubt .
- The situation has not been created by the obligor , for example when he voluntarily leaves a job or requests a reduction in working hours .
- That it occurred after the ruling in which the pension was established was issued.
- Increase in the assets of the custodial parent . If at the time the amount of the pension was set the custodial parent was not working and subsequently enters the labor market, the obligor may request the modification and reduction of the alimony benefit.
For the increase or decrease in the food benefit, whatever the cause that allows its request, the factors that were taken into account when setting it will be reassessed .
Suspension and termination of alimony
Alimony may be suspended in any of the following cases:
- Due to the death of the person obliged to provide them or of the child who has the right to receive them.
- When the assets of the person obliged to give them are reduced to the point that he cannot satisfy them without neglecting his own needs and those of his family.
- When the child can carry out a trade or profession , or has increased his assets, so that alimony is not necessary for his subsistence.
- When the child commits any of the infractions that give rise to disinheritance .
- When the child’s need comes from misbehavior or lack of application at work , while this cause subsists.
It must be taken into account that reaching the age of majority does not imply the termination of alimony , since adult children who live in the family home and do not have their own income for reasons not attributable to them must continue to receive it.
In any case, it will be advisable to have the advice of a lawyer specialized in family law for the success of your claim.
Non-payment of alimony
If the payment of alimony is not paid or suspended without judicial authorization, the children or the ex-partner on their behalf, or even the Public Prosecutor’s Office, can claim payment of the amounts not received , with a period of up to five years. , through the demand for alimony.
Initially, payment of the amounts owed will be required through a civil procedure for the execution of a judgment. If the demand is not satisfied, the Judge may order the seizure of the salary or any other income available to the defendant.
But in addition, it must be taken into account that non -payment of alimony may constitute a crime of family abandonment .
The importance of seeking advice from expert family lawyers
The implications of fixing, modifying or terminating child support are notable and tend to be procedures of high conflict between parents .
A lawyer specializing in family law will help you find the best solution for your interests .
His greater experience and knowledge in the matter, as well as previous experience advising clients in the same situation as you, makes the family lawyer your indispensable ally .