Food pension in cases of shared custody
The decision on the exercise system of custody and shared custody of the common children conditions and drags the rest of the measures to be adopted in the nullity, separation or divorce. In the provision of food in cases of custody and shared custody of the offspring, the traditional legal and jurisprudential regulation on this matter has as its base budget the coexistence of the food with only one of the parents, there being a gap regarding how to act in supposed guardianship and shared custody. The basic question is, therefore, to determine if a pension must be established in any case by the parent with whom the children do not live at any time, or alternatively alternative mechanisms to the classic alimony can be established.
Agreement of the parties on the matter
The regulatory agreement must articulate an effective system of contribution of the parents to these concepts. The possibilities are unlimited and the parties enjoy a high margin of maneuver, provided that the rights of the children are duly guaranteed, because it must not be lost sight of that it is a matter of “ius cogens”, which empowers the judge to supervise the agreements and not to approve those clauses that do not ensure the satisfaction of the minor children’s right.
There is therefore no rule in this regard. It should be noted that in general, the agreed solution that covers all the expenses of the children for the parent who is with them at all times, is not the most appropriate, because it neglects the fact that there are certain periodic expenses that they are generated independently of who the minor is with (school enrollment, clothing equipment, etc.).
Therefore, the most adjusted is the direct assumption of the costs of food, transportation, pocket, etc. of the child by the parent with whom it is in each moment, additionally articulating a pension to be met by both parties in order to face the remaining expenses (school, clothing, medical-pharmaceutical expenses, …) both ordinary and extraordinary; or by distributing the direct payment of such concepts among the parents (which requires their exhaustive identification, to avoid further problems of attribution of charges to one or the other).
In any case, it is advisable to establish a common fund nourished by the contributions of both parents and aimed at defraying the expenses of an extraordinary nature that are presented with respect to the minors; although it is unquestionable that this formula implies operational problems, such as which of the spouses will administer the capital, rendering accounts to the other. The proportion in the payment of the pension or expenses does not necessarily have to be 50%, since what is appropriate is to fix the amount in proportion to the economic possibilities of each obligor to pay.
Absence of agreement of the parties
In these cases, the doctrine is divided among those who maintain that the judge must set a nutritional, monetary and regular alimony in all cases; and those who maintain that such a declaration is not necessary, although in any case an express rule must be established to cover the nutritional needs of the minors.
The truth is that the establishment of a pension proper is not imposed, but the distribution between the parents of the contribution of each one to the support of the children.
Therefore, the judge could establish alternative forms of compliance with this obligation without the need to establish alimony in any case. Naturally, the solution adopted must always take into account the needs of the children and the economic possibilities of one and the other parent.
A solution could be to distribute carefully the responsibilities of payment of certain concepts between the parents, attributing to one the payment of school expenses and complementary activities and to the other the sanitary expenses, clothes and equipment of the minor. On the other hand, some resolutions have opted for the simple system that each of the parents contributes to the expenses of the child during the period that it remains in their custody, sharing proportionally the extraordinary expenses, although it has already been seen that this solution suffers from gaps regarding certain non-recurring expenses.
On the other hand, in case one of the parents lacks income, some resolutions have agreed that the one that has income meets all the needs of the children in the periods in which custody corresponds, paying alimony in the periods where they are with the other parent.
You can expand this information in “Memento Experto Crisis Matrimoniales”