The modification of measures after a divorce

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The measures adopted after the end of the marriage may be subject to modification regardless of whether the measures have been established in a regulatory agreement or by a court judgment -after a contentious divorce-.

In order to be modified judicially or by a new regulatory agreement, the measures must meet an essential requirement regulated in Article 775 of the Civil Procedure Act: “that the circumstances taken into account when approving or agreeing them have substantially changed”.

The procedure may arise by mutual agreement or only by one party, or even at the request of the Public Prosecutor’s Office.

If the new measures are agreed by consensus between both parties, it will be sufficient to file a request for modification of measures, accompanied by the proposal for a new regulatory agreement. However, if the procedure is initiated by only one of the parties, a request for modification of the measures must be filed (accrediting the change) and the other party will be notified and will have a legal period of 20 working days, from the day it was notified, to reply to the request.

The measures that are requested to be modified are those relating to changes in the visiting arrangements, child maintenance, and custody of the children, although other points may be modified if they comply with the established requirements.

Measures relating to parental authority and custody.

Parental authority is the set of duties and rights of the parents in relation to their unemancipated minor children and their protection.

Normally, the exercise of parental authority is attributed jointly to both parents. However, in a modification of measures, the following can be decreed: The deprivation of parental authority or the exclusive attribution of parental authority to one of the parents.

It is also possible to request, and the judge may agree on shared custody, through a modification of measures, in which case expert reports are required. At this point it should be mentioned that there can be three types of reports: a) Those that assess the qualities of one of the parties as a parent; b) Those that assess the relationship between a parent and his/her minor child; and c) Those that assess the system of cohabitation or custody that should be established in that family unit.

Another possibility is to bring an action for modification of measures to obtain a change of custody, in the face of non-compliance by the other party, under the protection of Art. 763 CC.

Measures relating to visiting arrangements.

Article 94 of the Civil Code considers the right of visitation, communication and company enjoyed by the parent who does not have the child with him/her and cannot prevent visits from relatives without just cause.

In order to request a change in the visiting arrangements, the parent who does not have custody of the child must prove that there has been a significant change in his or her life in relation to the child. For example, the fact that you are seeing your children more frequently than the terms of the agreement, that there has been a change in your working conditions, or even an improvement in your relationship with your ex.

Measures relating to child support.

Another of the modifications that can be requested by means of an application is that relating to child support understood as everything necessary for the maintenance, housing, clothing and medical care of the child, including education (Article 142 CC).

The amount of the maintenance must be proportional to the wealth of the obligor with the needs of the person receiving it, also adapting to his or her personal circumstances (STS 749/2002 of 16 July).

The judge will determine the contribution of each parent and will adopt the necessary measures to ensure compliance (Article 93).

In order to obtain the modification of measures and reduce the maintenance allowance, the applicant must demonstrate that his or her income -both salary and other income received- has decreased after the judgment that established the maintenance allowance; that this reduction has been significant and lasting over time, and of course that it has not been caused by the interested party -to avoid fraud-. If the reduction in income is minimal or anecdotal, the court will reject the modification of measures.

On the other hand, it should be remembered that if one of the parents stops paying the maintenance, the other parent can either enforce the Judgment that agreed the establishment of the maintenance (civil proceedings for claiming the amount, requesting the seizure of salary, vehicles, property, rents, pensions, account balances, etc.) or file a criminal complaint (article 227 of the Criminal Code) when two consecutive months or four non-consecutive months are unpaid.

The Supreme Court in its Judgments of 10 July 2015 and 30 April 2013 established that the birth of a new child may also give rise to the modification of measures on maintenance.

Measures relating to alimony.

Art. 100 of the Civil Code establishes that “once the pension and the bases for its update have been fixed in the separation or divorce judgment, it may only be modified by substantial changes in the fortune of one or the other spouse”.

A temporary or indefinite pension may be imposed and different personal and employment circumstances of the beneficiary of the pension shall be considered. The following will be taken into account in imposing the measure: age and state of health, professional qualifications, likelihood of finding employment, wealth and financial means and any other relevant circumstances. If any of these circumstances change over a long period of time, the maintenance allowance may be modified or simply terminated.

For example: unemployment, retirement, illness, or on the contrary, new employment, inheritance, etc.

To request the modification of measures either by mutual agreement or by litigation, you must file a lawsuit for the modification of measures, since these new measures become effective after they have been approved by a judge. For this reason, you need at least a lawyer and a solicitor to carry out the process. At Bufete Salmerón we have a lot of experience in these types of matters, and we have a team of highly qualified lawyers, so if you find yourself in this situation, either because you are not happy with the measures agreed for your children or because you cannot afford them, please do not hesitate to contact us.


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