In Spain, the claim for extraordinary expenses in the context of a divorce is a crucial issue for parents who wish to ensure the welfare of their children.
After a divorce, it is common for extraordinary expenses to arise which are not covered by the initial agreement and which are not covered by child support.
Claiming these extraordinary expenses of the children requires a specific procedure, as not all extraordinary expenses can be claimed from the other parent in court.
The consent of the other parent to such an expense will be a key factor in articulating the expense claim procedure.
The advice of lawyers specialised in family law is essential to protect the rights of the children and to ensure that the extraordinary expenses are properly recognized as such and the amount reimbursement.
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Extraordinary Expenses Claim
The concept of extraordinary expenditure refers to expenditure which, by its nature, is neither foreseeable nor recurrent.
These extraordinary expenses often arise unexpectedly and are necessary to cover specific needs of the children.
Unlike ordinary expenses, which are included in child maintenance and cover basic needs such as food, housing and clothing, extraordinary expenses require a more detailed analysis.
These expenses, as they are not regular, may include, for example:
Special medical treatments
Extracurricular activities
School trips not covered by the divorce or parent-child
Extraordinary expenses are borne by the parents according to what is established in the final judgment or in the regulatory agreement, usually 50% each, although it is possible to find other percentages (70%-30% depending on the economic capacity of each parent).
It is essential that both parents understand that for an expense to be considered extraordinary, it must be necessary and not habitual. If the expense does not meet these characteristics, you should consider the possibility of going to the procedure for modification of measures and requesting an increase in the maintenance allowance, which is why it is of great importance to have the advice of specialist lawyers.
Extraordinary Expenses Claim
Firstly, in order to establish which of the child’s expenses are considered “extraordinary”, we must be aware of the final divorce or separation judgement or the text of the regulatory agreement.
They will also have this characteristic if the other parent has expressly consented to the expense being incurred. It is increasingly common for judgments and regulatory agreements to include a detailed list of which of the expenses that arise in the life of the child are to be considered extraordinary.
This is why it is very useful to be advised by lawyers specialised in family law in divorce or separation proceedings, also for all post-divorce proceedings.
Typically, these include, but are not limited to: medical treatment not covered by the public health system; extracurricular activities that are deemed necessary; additional educational expenses; and school trips or excursions involving significant outlays.
If, on the other hand, your judgment or agreement does not include the list of extraordinary expenses, you will have to resort to the judicial procedure of “declaration of extraordinary expenses” before initiating the procedure for claiming the unpaid amount.
In order to claim the extraordinary expense, it will be essential to prove that the other parent gave consent (tacit consent may be accepted), or to prove that the expense is considered necessary.
Lawyers for Extraordinary Expenses Claims
The court procedure will depend on whether the expense is included in the judgment or agreement as extraordinary.
In the affirmative case, it will be possible to go directly to enforcement proceedings, by means of the presentation of an enforcement action, in which the invoices or receipts that accredit having incurred the expense must be attached.
We must also prove that the parent from whom we are claiming the expense gave his or her consent for the expense to be incurred, tacit consent sometimes being valid. The opposing parent will have the option of appearing in person and hiring a law firm to file a writ of opposition to the enforcement.
Otherwise (if the expense is not expressly provided for and consent has not been given) an application for a “declaration of extraordinary expense” must be made before enforcement is commenced and the other parent may also object to such a declaration.
The judge, after assessing the documentation and arguments presented by both parties, will issue a decision as to whether the expense is extraordinary and should therefore be shared by both parents.
This procedure seeks to ensure that only those expenses that are truly necessary and unforeseen are claimed. In both cases, the competent family court will be the court that ordered the measures or approved the divorce or separation agreement.
Lawyers for Extraordinary Expenses Claims
As for the time limit for claiming payment of extraordinary expenses, Spanish law establishes a general limitation period of five years from the time the expense is incurred.
However, it is advisable not to allow too much time to pass and to make the claim as soon as possible to avoid complications.
Maintaining open and clear communication with the other parent and seeking their prior consent whenever possible can facilitate the process and avoid later disputes. Having the support of divorce and family law lawyers can be crucial to ensure a successful and fair claim for extraordinary expenses.
In contentious cases where it is not possible to reach an agreement, we will apply for a declaration of extraordinary expenditure and then have to initiate enforcement proceedings.
It will not be necessary for the other parent to take part in the enforcement proceedings, since the attachment is provided for without the need to hear the other parent beforehand. If he or she does appear, failure to observe the five-year time limit will be a ground for opposition to enforcement.
