In a divorce situation, whoever is not responsible for taking care of the children has the obligation to pay a alimony. This is often one of the main causes of discord between couples and generates a lot of doubts. In this article, we approach the definitions inherent to this provision, what is the value and what steps to take to have accessO. realize yet what are the expenses which are included in the alimony.
What is alimony?
The alimony is an amount that must be, mandatorily, paid by the parent who does not have custody of the child. Nonetheless, a divorce is not required to determine alimony, that is, it is independent of the type of relationship between the parents. Even so, in the event of divorce, the payment of this pension is attributed to the parent who does not have custody of the child. Nonetheless, even in shared custody situations, alimony can be fixed. Regardless of the type of marital relationship, both are responsible for supporting their children. The payment of this benefit is often a reason for discord and problems between the parents. Ideally, there is an agreement on the payment and its value. However, when this does not happen, the award of the pension has to be applied for in court. It is important to note that this benefit is not only paid until the young person reaches the age of majority. If the latter continues to study or attend some type of professional training, the benefit is extended up to 25 years.
Is only food included?
Not. According to the Constitution, “parents have the right and the duty to educate and maintain their children”. Furthermore, according to article 2003 of the Civil Code, food is defined as “everything essential for sustenance, housing and clothing”. This article also mentions that in the case of a minor, in addition to the above, “instruction and education” is also included. Thus, it is important to realize that it is not just food expenses that are included in this benefit. The alimony, despite its name, is much more comprehensive and from food and housing, to clothing, education and extracurricular activities.Also read: IRS: How to declare alimony?
How is alimony calculated?
They exist two types of situations with regard to the calculation and allocation of maintenance paymentss. These differences are based on whether the divorce was by mutual agreement or not. divorce by mutual agreementthe determination of responsibilities and payment of alimony, is part of it and is formalized at the Civil Registry Office. go to court to order a divorce, there are two situations. As with the mutual agreement, an agreement can also be reached between the parents in court. However, if there is no agreement, the court is responsible for setting the amount of maintenance. As for the value itself, this varies from case to case and takes into account the child’s needs and the parents’ economic situation. This amount can be revised, for example, in cases of inflation. The parent obliged to pay this benefit can ask for the cessation or reduction of it, if, for example, he has a drop in income. Read also: Separated parents: How maintenance is defined
How to apply for alimony?
This service must be requestedwith the competent authoritiess. The order can be made by person or entity that has custody of the minor, by the legal representative of the minor or even by the Public Ministry. However, if the young person has reached the age of majority and is still continuing his education, he himself has to trigger the request for the pension, as it is his right. The age of the child is also important in determining where to apply for alimony. So, if it is a minor, the request is made through the courts. In the case of a young person of legal age, this benefit can be requested at any Civil Registry Office.There is also the so-called “provisional alimony“. This aims to take care of the minor’s needs while the court does not establish the effective maintenance. The minor’s representative can ask for this pension and must do so within the scope of the action of the exercise of parental authority.
How should alimony be paid?
This provision must be pay monthly. Nonetheless, can be paid in other ways. In the event of an agreement between both parties, if there is any legal provision to the contrary or other exceptional reasons. For example, if the person responsible for the payment has no way of paying, he can do so in kind, that is, providing a home and company for the child. Read also: Parent does not pay alimony? Activate the Guarantee Fund
What to do in case of non-compliance?
In the event of default, i.e. if the person responsible for paying the pension fails to do so, the parent who has custody can appeal to the court. There are a few ways to “solve” the default situation, some being lighter than others.
Incident for non-compliance
In this case, the parent who has custody of the minor asks the court that the debtor be obliged to pay the missing maintenance payments. In addition, the parent who has custody may also request the payment of a fine and compensation, which, in turn, may be in favor of the minor or both.
This default payment option can only be claimed if the alimony has been determined in court. Thus, the debtor is notified to pay the outstanding installment in the next 10 days to its due date. If you do not, this amount will be deducted from your salary or any other type of income you have.
Special execution for food
In this situation, the parent who has custody may not only request payment of the missing benefits, but also future ones. In the case of adjudication, the entity responsible for paying the debtor’s income, for example, the employer, is notified and must deliver the awarded part directly to the applicant parent. In the case of consignment, it is the parent who has custody who must inform which debtor’s assets are liable to pay the installments. Then, the enforcement agent decides whether or not these goods are sufficient and consigns them.
Means of criminal coercion
Finally, the most “drastic” way of claiming the missing payments is through the means of criminal coercion. These can only be activated if there is a complaint. Since the maintenance obligation is provided for in the Penal Code, non-payment of this obligation can lead to high fines or even prison sentence.Also read: Alimony: what to do when one of the parents doesn’t want to pay?
What happens if the parent is unable to pay?
In the event that the parent responsible for paying maintenance is unable to pay, the child’s situation is safeguarded. There is the Guarantee Fund for Maintenance Due to Minorspaid by Social Security, which “replaces” the debtor parent until the youth reaches the age of 18, and it stops there. This fund can be requested by the Public Prosecutor’s Office or by the minor’s representative at the court. O value to assign is not fixed and it will depend on the minor’s needs, family income and the amount of missing alimony. Also read: Orphan’s pension: How does it work?