Today we analyze a recent ruling that may be useful for many separated or divorced couples with children in common.
Unfortunately, cases of bullying or school harassment are becoming more and more common and, in these circumstances, many parents opt for a ‘change of scenery’ which translates into a new home and, with it, new expenses.
The decision that we are commenting on, issued by the Provincial Court of Salamanca, focused on the school harassment or bullying and alimonyassures that the transfer of the residence from one locality to another due to the bullying suffered by one of the daughters of a divorced couple, does not in itself determine a substantial alteration of the circumstances that justifies the increase of the pension. It is necessary to prove that the existing economic situation after the transfer implies an increase in expenses and that the economic capacity of the family is equal or lower. In the case under study, the Court determines that this has not been proven, in addition to the fact that, in the mutual agreement divorce agreement, this possibility of transfer was agreed upon but nothing was said regarding the increase in alimony. If you need a family lawyer for a case similar to this one or for any other matter related to divorce, separation, custody, alimony… do not hesitate to contact us.
School harassment or bullying and alimony
When a case of bullying occurs, one of the possibilities that the family can consider is a transfer of residence to help the child start from scratch in a new environment. This usually involves new expenses; some related to the move itself (moving, a new rent or mortgage, change of school…), others related to the new place of residence (living in a city like Barcelona or Madrid is not the same as living in a smaller area). What happens in these cases?
Are these circumstances sufficient to increase the amount of the alimony that one of the parties of the couple sends to the other?
According to the sentence that we comment, that you can read in full in this link, this circumstance is not enough to ask for an increase of the pension of the minors in charge if it is not credited that the transfer supposes a substantial decrease for the family economy. The sentence analyzes the appeal filed by a woman who requested from her ex-partner to double the maintenance that she was paying to one of her daughters (from 200 to 400 euros per month) due to a transfer from Salamanca to Madrid.
The mother has the support of the Public Prosecutor’s Office, which considers the increase justified based on the new circumstances, not caused by her but due to the harassment experienced by her daughter.
However, both the first instance judgment and the one handed down by the Provincial Court denied this increase, arguing, in the latter case, that it has not been demonstrated that the change of city of the minor girl meant a greater economic need for her. Thus, the court assures that the plaintiff had to prove “principally and only” that her economic situation had worsened permanently after the move to the capital for the judges to have been able to assess the existence of a “substantial alteration of the economic circumstances of the breadwinner”. This is precisely the factor required by the Civil Code. to justify, either downward or upward, any modification in the amount of child support. Thus, it must be proven both that the expenses of the minor have increased (transportation, school…) and that the income of the family has not changed or has even been reduced. It is in this balance that the justification is found; the “substantial alteration” referred to in the Civil Code.
It is not enough, therefore, to focus on justifying the need to change domicile and to prove that this transfer has indeed taken place, but rather to demonstrate that this new situation has meant a sufficient economic imbalance to consider it a “substantial alteration of the economic circumstances of the maintenance”.
“The applicant should have proved, therefore, not only the existence of the bullying and the need to move to Madrid, which has served to make it clear that the cause of the alleged disruption is beyond the control of the affected parties, but also that it was not the applicant’s fault. The main and only if the economic situation existing before that alteration of the circumstances due to the transfer to Madrid and the economic situation existing after the transfer to Madrid is an economic situation that supposes a substantial alteration of the economic circumstances of the maintenance provider whose expenses are much higher and the economic capacity of the family in which he/she resides is equal or lower.
Nothing is known in these proceedings about this new economic situation compared to the previous one.
All that is known is that after moving to Madrid, the mother went from being unemployed to working, that is to say, her economic situation improved significantly. Apparently, however, during the processing of the appeal and according to the document provided, he has returned to a situation of unemployment.
But, in any case, the result is that it has not been sufficiently accredited in the case file that the economic situation prior to the transfer from Salamanca Madrid was much better, so that the transfer to Madrid has meant a substantial economic alteration that allows, as it is claimed, the doubling of the alimony. There is no such proof that certainly does not fit with the situation of unemployment in Salamanca compared to the situation at least for a time of work in the new residence in Madrid. Finally, what is also important is that in the divorce agreement of mutual agreement between the spouses, a clause was agreed by virtue of which the wife was allowed to move her domicile out of the province of Salamanca without modifying the rest of the clauses or the visitation regime.
So that the spouses had already foreseen this possibility of transfer of the residence outside the province of Salamanca.
Possible transfer that by itself does not suppose without more a substantial alteration of the economic circumstances that justify a modification and the doubling of the alimony. Even when such possibility of transfer was foreseen in the agreement, nothing was said in this respect, unless in the corresponding process it is fully proven that such transfer has entailed a substantial alteration of the economic circumstances in comparison with the economic situation prevailing prior to the transfer, in which respect, as we have said and we insist, there is insufficient proof in the case file”.
Contact us if you need advice and counsel on any family law matter.
