When a divorce decree is issued by the Spanish Courts, wherever minor children are involved, it is always necessary for the following components to be included:
- Attribution of custody of the children
- Visitation schedule for non-custodial parent
- Child Maintenance Payments to be made by the non-custodial parent
Normally no time-limit is envisaged nor stated for the above ‘custodial-terms’ and as a result it is quite common for the non-custodial parent to ask, until what point will they have to pay child maintenance? for how long will their visits be regulated by the divorce decree?
Both the custody of the children and the visitation rights of the non-custodial parent terminate once the children reach the age of majority at 18 years of age, automatically. This happens together with the parental rights and responsibilities over the child terminating. However, the obligation to pay child maintenance ends when the children have economic independence, such that, if the children continue with their education, it will be necessary to continue making child maintenance payments until such time as their studies have completed plus a prudent time period to allow for the search for work. It is understood that the studies undertaken by the child must bear fruit and be reasonably successful, such that it is insufficient for the child to simply enrol for a course, year after year, but rather that there must be some type of degree or diploma sought and obtained.
Where studies are undertaken, it is necessary to request before a judge, the termination of the obligation to pay child maintenance, as in such cases they do not extinguish automatically. This is achieved via the proceedings known as ‘modification of [judicial] measures’ (modificación de medidas). While there is in existence a divorce decree that establishes the obligation to pay the child maintenance, then such obligation shall continue to exist, and accordingly it is important to initiate the modification of measures before stopping any payment.
Use and Enjoyment of the Family Home
Another of the important components that may form part of the divorce decree relates to the use and enjoyment of the family home (as opposed to the ownership of same which does not change). When there are minor children of the marriage, use and enjoyment is attributed to the custodial parent in whose company the children remain, and for their benefit. As a result, it will become necessary to request that this right to use and enjoyment be extinguished for the non-custodial parent to have access to home. In such proceedings the non-custodial parent may request their own personal use and enjoyment of the home or the sale of the property free of charges and the termination of the matrimonial assets regime and the distribution of those assets.