The Civil Chamber of the Supreme Court has issued a ruling dated February 11, 2016, which establishes that the system of shared custody of children does not exempt from the payment of alimony if there is a disproportion between the income of both spouses.
Furthermore, it rejects that this pension can be temporarily limited "since minors cannot be left at the mercy of whether the mother can or cannot find work", beyond the fact that there may be modifications later if there is a substantial change in circumstances (article 91 of the Civil Code). .
The TS ruling
The appellant understands that by adopting the shared custody system, payment of alimony is not necessary, since each person will be responsible for it during the period in which they have custody of the minors.
However, if the mother does not have her own income, it is limited to a period of two years, in which it is considered that the mother could find work.
Shared custody does not exempt one from paying child support when there is a disproportion between the income of both spouses, or when the mother does not receive any salary or income (Art. 146 C. Civil), since the amount of child support will be proportional to the needs of the one who receives it, but also to the wealth or means of the one who gives it.
This temporary limitation makes sense in a compensatory pension, as an incentive in the search for a job, but it has no place in child support, as it is proscribed by art. 152 of the Civil Code.
Article 97 CC requires that separation or divorce produce an economic imbalance in one spouse, in relation to the position of the other, for the right to obtain compensatory pension to arise.
In determining whether or not an imbalance exists, several factors must be taken into account. The compensatory allowance, it states, "aims to prevent the harm that cohabitation can produce from falling exclusively on one of the spouses, and for this purpose, it will be necessary to consider what has occurred during the married life and, basically, the dedication to the family and collaboration with the other spouse's activities; the property regime to which the spouses have been subject, insofar as it will compensate for certain imbalances; and even their situation prior to the marriage in order to determine if the marriage has produced an imbalance that generates possibilities for compensation."
In view of this, the judge must be able to decide on three questions:
- a) If an imbalance generating a compensatory pension has occurred.
- b) What is the amount of the pension once its existence has been determined.
- c) Whether the pension should be permanent or temporary.
Imbalance is understood as an economic worsening in relation to the situation existing during the marriage, resulting from a comparison of each spouse's economic circumstances before and after the separation. Since, by its legal and jurisprudential design, compensatory spousal support is not intended to perpetuate, at the expense of one of the spouses, the economic level the couple enjoyed until the separation, but rather its legitimate purpose is to rebalance the resulting disparity, not in the sense of fully equalizing assets that may be unequal for reasons unrelated to cohabitation, but in the sense of placing the spouse disadvantaged by the breakdown of the marital bond in a position of potential equality of employment and economic opportunities compared to those they would have had without the marriage …
Applying the doctrine to what is alleged in this appeal, the temporary compensatory pension must be maintained, in view of the manifest situation of imbalance given that:
- The wife doesn't work.
- Throughout his life his work occupation has spanned only 1973 days.
- He has invested most of his time in family care.