• By Elisabeth SANCHO
• 06-04-2020

If your income has been decreased or you have been fired from your job, shall you continue paying the same amount of alimony?

The Government decreed the State of Alarm via the Real Decreto 463/2020, 14th March. This measure has obliged many Companies to close doors, resulting this in the end of their activities, or at least a considerable reduction of them. Consequently, there have been a lot of layoffs.

Because this chain of reactions, there currently are a lot of parents that are unemployed and, therefore, without any incomes or with their incomes being heavily decreased, and there are multiple doubts that appear from this extraordinary situation originated by the State of Alarm motivated by the expansion of the COVID-19 and, for this reason, in this article we are going to respond the following questions:

“Shall I continue paying the alimony? Shall I pay it indifferently, even though I have been fired?”

We have to remember that the compliance of the Sentences, in any case, is of mandatory compliance and, in case of not acting as stablished, the other progenitor will have the right to urge an execution claim that obliges the other to comply the judicial resolution terms.

As a consequence, the situation of the State of Alarm, even though being an exceptional situation without precedents, does not excuse, by itself, the compliance of the statements stablished in the corresponding resolution.

Then, the response to our two questions, is affirmative.

As for whether the alimony must continue to be paid, note that it must be taken into account that it is a monthly contribution, calculated according to the annual pro rata of all the expenses of the children for the basic support of the children and, therefore, must continue to be paid in the same amount that was established in the divorce or custody judgment (with the relevant update) and this, even though these expenses and needs have been altered by the current crisis and are higher, or in some cases lower (case that the school does not turn the receipt, or there are no excursions or other school expenses for example), being that in the same way the extraordinary expenses of the minors must be paid.

Regarding the second question, even if you are currently unemployed, the answer is still affirmative, that is, that despite having lost your job or having your income reduced, alimony must continue to be paid. For this reason and in the case of not paying the pension, the other parent may file a civil lawsuit for the execution of the sentence, although it should be borne in mind that the judicial system is currently paralyzed in its day-to-day life, meaning that it is only active for those situations that are of special urgency. Therefore, and in the event of a breach of this type while the state of alarm lasts, the custodial parent may not initiate any legal proceeding against the non-compliant parent, but may only notify him of the breach of the judicial resolution and wait for the status of alarm in order to be able to interpose said procedure of execution, requesting therefore the collection of the amounts due as alimony.

Another thing is that if the non-payment of the pension is due to the loss of employment as a result of the crisis caused by the coronavirus, the other parent could not file a criminal complaint for a crime of non-payment of alimony, since for the concurrence of this crime it is required a clear will of not paying and it is evident that this would not be the case, since the reason for the non-payment is a fact that has not been caused explicitly, but has been caused by the coronavirus pandemic that therefore is an impediment to pay and not a capricious will to default the judgment. Therefore, the other parent could only claim civil actions, and specifically, the enforcement of sentence that we have indicated above.

Our recommendation is to try to reach an agreement with the other parent regarding how it will be possible to contribute given the current situation due to the lack of income, either by postponing part of the debt or cancelling part of it provisionally during the period that both parents shall specify in detail. Our advice is that, if an agreement is reached, it ought to be written down. But it also should be borne in mind that if, on the other hand, the other parent does not agree to reach an agreement, the other parent may file for civil enforcement actions.

Now, in the event that the situation of unemployment or loss of income lengthens or lasts over time beyond the state of alarm decreed by the Government, in this case, the parent who has had their capacity substantially reduced may file a procedure for modifying the measures of the divorce or custody judgment issued in the past, in order to request the reduction of alimony due to the new existing circumstances. Only after the Judge issues a sentence or Order with some measure that authorizes a reduction in the amount of the pension, it will be then that the parent must pay a lower amount.

In short, a reduction of the pension, in cases of discrepancy, can only be valid if there is a judicial resolution that modifies that pension that was established in the divorce or custody judgment.

In this situation, we must appeal to common sense and encourage cooperation between parents in order to avoid harmful confrontations for minors, children and the global family that has already been affected by the crisis as a result of the expansion of COVID -19 and for the restrictive measures that have been adopted from the Decree that declares the state of alarm.

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- Visits, guard and custody during the Coronavirus