Every September the same doubts arise in the case of many separated or divorced couples.
The return to school brings with it a significant financial outlay for tuition; textbooks; uniforms, bibs or school robes; backpacks, pencil cases and other school supplies…. Who is responsible for these expenses?
Do they all have the same status?
When the couple has stopped living together and there is an alimony in favor of one of the parties, it is important to know which expenses can be considered extraordinary (and, therefore, outside this alimony and borne by both parties at 50%) and which are integrated within the alimony (being the person who receives it who must cover the expense with that amount).
In this post we try to clarify some doubts in this regard. If you want to know more or have any legal needs in family law, please contact our team of lawyers in Barcelona.
Alimony: a key concept
Before we get into the subject, it is important to know what is involved in the alimony. The starting point is found in Article 93 of the Civil Code:
The Judge, in any case, will determine the contribution of each parent to satisfy the alimony andwill adopt the suitable measures to assure the effectiveness and accommodation of the benefits to the economic circumstances and needs of the children at every moment.If they cohabit in the family domicile children of legal age or emancipated that lacked own income, the Judge, in the same resolution, will fix the maintenance that are due according to articles 142 and following of this Code.
In this sense, the concept of alimony includes all expenses that are indispensable for sustenance (food), lodging, clothing and medical care, as well as education and instruction when they are established in favor of minors or adults who have not completed their education. Even pregnancy and childbirth expenses can be included under this umbrella when they are not otherwise covered.
As for those obliged to provide alimony, this is an obligation of the spouses to each other, as well as towards the children.
It is important to know that the obligation to pay alimony, in case it exists, is included in the agreement reached with the separation or divorce, or in the judicial sentence that has been reached, in the absence of agreement.
Thus, it is fixed who will be the person who must satisfy it, the amount, form of payment, period of reception….
All these points can vary when the circumstances of either of the two parents or of the minors themselves change.
School expenses: extraordinary or extraordinary?
Once this point has been clarified, it is time to analyze whether back-to-school expenses can be considered ordinary or extraordinary, and the answer is not entirely simple.
It is a type of expense that undoubtedly affects the child’s education (which would lead it to be considered food), but it is also punctual, which has led it to be considered for a time as an extraordinary expense and, therefore, outside the umbrella of alimony.
However, the situation changed with an important ruling of the Supreme Court, dated October 15, 2014 .Until that time, These expenses were not included in the child support, so they were considered as extraordinary expenses and had to be paid half and half by both parents.
Thus, the parent obliged to pay child support, in addition to paying his monthly pension, had to pay 50% of the extra expenses incurred at the beginning of the school year.
However, with its judgment of 2014, the situation changed, considering that the expenses incurred for the return to school should be classified as ordinary expenses and, therefore, be included in the calculation of the child support when it comes into play.
Thus, these are expenses that are added to the total expenses generated by the child in a year, prorating it, along with the rest, in 12 monthly payments to be paid by the parent obliged to do so.
The latter must, therefore, ration his expenses to provide for this occasional ‘peak’, taking into account that there are months of higher and lower expenses during the year and that the pension must be rationed accordingly.
Specifically, the ruling summarizes the following:
- The expenses incurred at the beginning of the school year are ordinary expenses insofar as they are necessary for the education of the children, and are therefore included in the legal concept of alimony. Without these expenses the children would not begin their education and instruction in the schools every year.
And because they are incurred every year, they are, like other food expenses, periodic (periodic is not only the monthly) and, therefore, foreseeable in the yes and approximately in the how much.- The consequence is obvious: these are expenses that must be taken into account when setting alimony, i.e., the amount that each month the non-custodial spouse must give to the custodial spouse as a contribution to the payment of alimony for the common children.
- Having established the above, Extraordinary expenses are those that have characteristics quite different from those of ordinary expenses.
They are unpredictable, it is not known if and when they will occur and, consequently, they are not periodic.
A different issue arises when the divorce or separation agreement has established something different.
In these cases, it is advisable to to go to a lawyer to defend the situation that is in your best interest.
Back-to-school expenses: Which are ordinary and which are extraordinary?
Beyond what has been analyzed, what can we consider back-to-school expenses and, therefore, ordinary expenses?
Not everything fits into this category, and case law has been in charge of distinguishing what is included and what is not.
However, it must be taken into account that each case is different and that the agreement between the parties has a great influence on this point.
In general, we can consider the following as ordinary expenses in a school context:
- Registration
- Monthly or annual school fees when the school is private or subsidized.
- Textbooks
- School supplies
- Uniform
- Sportswear
- Transportation
- School canteen
- Fees of AMPAS or other parents’ associations related to compulsory education
- Other compulsory school activities (field trips, museum visits, plays, etc.)
On the contrary, they will be extraordinary expenses:
- Enrollment in a private school by only one of the parents, when the other parent does not express his/her disagreement.
- End-of-course or other study trips
- Private tutoring or support classes that the child may need in view of his/her record (only those private classes strictly related to the academic record and that are necessary for the child in view of his/her grades).
- Language school expenses
In the case of university education, these will be ordinary expenses, in general:
- Registration
- Books
- Materials and instruments required for the practices
- Transportation
- University residence or other lodging expenses
- Master’s degree courses required to complete the training
On the other hand, the following expenses will normally be extraordinary (and will therefore be paid at 50%), provided that it was not possible to foresee them at the time the pension was agreed upon, due to the age of the child or other circumstances.
Also if the parents have so agreed in the agreement or it has been established in the sentence:
- Second careers
- Courses abroad
- Oposiciones
- Master’s degrees not required to complete training
- Doctorates
If you need help in family law matters, contact us without obligation.
