In what cases should alimony be fixed for one of the spouses after divorce?

portada cuota de alimentos para uno de los conyugues

The maintenance quota is the maintenance obligation understood as the legal duty of a person to guarantee the subsistence of another, to the extent that there is economic capacity of the provider, need or economic incapacity of the person receiving the maintenance and that there is a legal relationship between the provider and the person being provided with the maintenance.

This duty is not only for spouses, but also applies to:

  1. Posthumous child: child orphaned before birth.
  2. Nasciturus and pregnant woman: child that is is unborn child and pregnant woman.
  3. Ascendants and descendants.
  4. Siblings.
  5. The donor of a large donation.
  6. Spouse or permanent partner: initially it was only owed between spouses, but later, through case law, it was extended to permanent partners. Under this assumption, food should be provided in two scenarios:
    • As long as is the marriage is in force or the de facto marital union lasts.
    • When a divorce action is brought sanction when the divorce is the consequence of a breach of one of the couple’s duties.

It is important to point out that the duration of the alimony obligation subsists despite the dissolution of the marriage bond as established in articles 160 and 422 of the Civil Code.

Thus, in case of divorce, separation or termination of the life in common of the permanent partners, it is required that the innocent spouse or partner does not start marital life with another person, since in this case the right will be extinguished.

On the other hand, also the death of the person being fed will always be a cause of extinction of the right of maintenance because the maximum term of duration of the obligation is the life of the person being fed, since maintenance is not transmitted by death.

However, there are cases in which the maintenance obligation is not extinguished with the death of the debtor and this obligation can be transferred to another person of whom guilt cannot be predicated and as long as the circumstances of necessity subsist, maintenance will be owed for the life of the creditor. This means that the source of the alimony obligation is not only the fault of the spouse who breached the partner’s duties but also the need of the creditor spouse to receive the alimony payment and even this obligation can be part of the liabilities of the estate.