The alimony is essential in the family law cases, so to know it, what it consists, what you can and can not do when you have to pay is crucial to avoid a breach of the enforcement and the consequent enforcement.
The enforcement proceeding is filed when a breach on the obligation is caused, usually because it hasn’t been paid correctly, and the other party asks the judge to force the breacher to accomplish it.
On some occasions, the breach is not deliberate, and it is caused because you have to pay a concept you didn’t know you have to.
So, what actions can lead to an enforcement process, and how can it be avoided?
1. TO PAY
It may seem obvious, but on more than one occasion an enforcement process begins because the alimony wasn’t paid correctly; and the fact is that paying the maintenance allowance does not only consists on paying the established amount, as explained below.
Maintenance updates must be paid. The judgement that determines the obligation also establishes that it has to be annually updated according to the IPC or another reference index. The alimony is automatically updated a year after the Court ruling and will be for the upcoming years.
The update of the alimony is essential since, if it is not done, the counterpart can file a request asking for the payment of the updates not made during the last 5 years.
It is also fundamental to pay the full amount of the maintenance allowance. Paying a part of the amount is not to half-fulfil with the obligation but a breach of it, and it is a cause to file an enforcement process.
If it is not possible to pay the whole amount on time, the remaining amount must be paid in the very next month.
However, continuous delays in the payment might seem as a failure to abide by the obligation and should be avoided.
If you cannot afford to pay alimony, you should consult a lawyer who specialises in this field for proper advice.
In addition to the maintenance allowance, half of the accepted extra expenses must be paid, as they can also be claimed in an enforcement process.
2.- AGREEMENTS WITH THE OTHER PARTY, ARE THEY VALID?
In a previous post, we discussed what happens if an agreement on maintenance is reached with the other party without judicial approval. To read the article click here.
It is fundamental to know and always keep in mind that the agreements reached by the parents about the alimony are NOT valid until there is a court decision that validates them. That is to say, if an agreement is reached with the ex-partner in which it is said that instead of paying the established pension of 250 euros, one of 150 euros is to be paid, this agreement is not valid until the corresponding procedure is initiated and a sentence is obtained in which the judge establishes so.
If you reach an agreement with the other party, but there is not a judicial approval, the other party can demand that the obligation to pay maintenance for the initial amount be enforced, despite the existence of an agreement between the parties.
Therefore, it is crucial to know that whenever any change is attempted in the alimony, the validity of the judge must be counted; otherwise, we expose ourselves to execution for the amount determined in the sentence.
Whenever you want to make a change in your maintenance allowance, it is equally essential to get the advice and opinion of a lawyer who specialises in this type of matter, as this will prevent possible problems in the future.
The keys to correctly fulfil your maintenance obligation and avoiding an enforcement procedure are:
– Pay the full amount.
– Update the amount of the pension and pay it.
– Pay half of the agreed extra costs.
– Avoiding delays in fulfilling the obligation.
– Any change you want to make, present it to the court for its validity.
– Have the advice of a professional in case of any doubt.
If you have any doubts or wish to consult your situation, our team of professionals at Espadas & Vivancos will be happy to advise you.
