Understanding Alimony and Child Support Obligations

Types of Alimony

Depending on the contents of maintenance, it may be necessary or congruous.

• Congruous Alimony: This type of alimony allows for survival modestly in a manner corresponding to the recipient's social position.
• Necessary Alimony: This type of alimony is provided to support life, as referred to in Article 175.

Duration and Enactment of Alimony

Alimony can be classified based on the procedural stage at which it is enacted and the permanence or transience of benefits:

• Permanent Alimony

  Permanent alimony is enacted in the final sentence and continues throughout the life of the recipient, as long as the circumstances that legitimized the demand remain.

• Temporary Alimony

  Temporary alimony is determined during legal proceedings, such as paternity claims, domestic violence cases, separation of property, or divorce. Before the final decision, a judge may order temporary alimony to the extent that the aftermath of the trial offers plausible substantiation. Article 5, Inc. 14,908 of the law contains certain new elements regarding temporary alimony:

  • In the case of minor children, within 10 days from the date of notification of the complaint, the defendant must explain the arguments they deem relevant to the origin of the temporary alimony and provide all supporting material.
  • After this 10-day period, the judge must rule on the temporary alimony, ex officio.
  • For both adults and minors, a provisional decree may augment, reduce, or terminate alimony upon request, provided there is enough evidence to justify it.

Requirements to Claim Alimony

1. Legal Recognition of Active Agents: To sue for alimony, it is necessary to have a legal title. The law states who is equipped to do so, listing them in Article 321 of the Civil Code.
2. Economic Capacity of the Obligor: The obligor must have the economic capacity to meet the maintenance obligation.
3. Necessity of the Provision: The applicant must demonstrate a need for the provision.

Alimony for Descendants

• Persons Obliged to Grant Alimony to Descendants

  • The parent and/or mother.
  • The grandparents, as per Article 232.
  • Individuals living in concubinage with the person liable to provide maintenance.

• Duration of Alimony for Descendants

  • General Rule: Alimony must be provided for the lifetime of the recipient, as long as the circumstances that legitimized the demand continue. For descendants, according to Inc. 2nd Section 332, the rule is generally until the age of 21.
  • Exceptions:
    • If the recipient is studying a profession or trade, alimony will cease at age 28.
    • If the recipient is affected by a physical or mental illness that prevents them from subsisting on their own, alimony should be for life.
    • In qualifying circumstances, if the judge deems it indispensable for their subsistence, alimony would be for life unless there is a change in the circumstances that led to the judge's qualification.

Alimony for Spouses

Article 134 of the Civil Code states: "The husband and wife should provide for the needs of the common family, according to their economic power and the system of property that exists between them. The judge, if necessary, shall regulate the contribution."

Alimony for Ascendants

Due to the reciprocity of the maintenance obligation, parents are also entitled to demand alimony from their children. Furthermore, grandparents also have the right to do so, regardless of how the grandchildren's paternity was determined.

Alimony for Siblings

All siblings, regardless of their affiliation, are entitled to alimony.

Determining the Amount of Alimony

To determine the "just" amount of maintenance, it is necessary to address the powers of the debtor and their domestic circumstances (Article 329 of the Civil Code). The amount of alimony should be calculated on the total income of the debtor.

Presumption of Solvency

Regarding the economic powers of the provider, Article 3 of Law 14,908 establishes a simple but important legal presumption: "For the purposes of enacting a lower food when the requests of his father or mother, it is presumed that the alimentante has the means to grant them." This is a simple legal presumption. The defendant parent must establish their incapacity.