I. Introduction
The realm of family law encompasses a substantial portion of civil relationships, with the fifth volume of the Civil Code dedicated specifically to matters of family law, encompassing Articles 1106-13059. In practical terms, disagreements between spouses regarding divorce constitute the most prevalent category of family law cases, closely trailed by disputes over child support and spousal maintenance. Available data indicates that general courts routinely address a noteworthy volume of conflicts related to spousal maintenance.
Articles 1197-1222 of the Civil Code outline the obligations parents hold towards their children. The established practice within the general courts, including the Supreme Court of Georgia, shapes the core principles of the duties outlined in the previously mentioned articles. The courts give precedence to upholding the rights of the child and taking into account their best interests. In disputes concerning spousal maintenance, the courts provide crucial clarifications regarding the specifics of the maintenance obligation, its extent, and the parties involved. Pertinent inquiries arising in such disputes encompass the division of child support responsibilities among parents subsequent to divorce, the breadth of the obligation to provide support (whether it is limited to basic necessities or extends to fulfilling the cultural and social needs of the child), the proportion of a parent's income earmarked for the child's welfare, and the factors the court should consider when evaluating the amount of spousal maintenance. Additionally, significant deliberation is given to how a parent's remarriage or the birth of a new dependent impacts the quantum of spousal maintenance. The resolutions to these inquiries hold critical significance in spousal maintenance conflicts.
An assessment of current practice involves the elucidations offered by the Supreme Court of Georgia in disputes pertaining to child support payments.
II. Duty of Care
1. Both parents share an equal responsibility for the welfare of their children.
2. A parent's rights and responsibilities towards their child originate from the child's birth itself, rather than being contingent upon the legal establishment of paternity. The timing of a parent's awareness of their parenthood holds no significance.
3. When the child resides with one parent, it is anticipated that this parent will bear the financial costs associated with raising the child. The parent who doesn't share the same residence as the child is required to provide child support.
In accordance with Article 1212 of the Civil Code, parents are legally obliged to provide care and support for their minor and disabled children who require assistance. The responsibility for providing financial assistance to the child lies with the respective parent. Therefore, in case of a dispute, determining the identity of the parent becomes of utmost importance. The timing of establishing paternity holds no relevance. The Supreme Court of Georgia has rendered rulings on this matter on numerous occasions. In a specific case, the respondent parent contended that they were unaware of their child's existence and thus could not be held accountable for paying child support for the period preceding the establishment of paternity. Nonetheless, the Supreme Court dismissed this argument, stressing that the child's birth forms the foundation for establishing parental rights and obligations as stipulated by Article 1212 of the Civil Code. Parental responsibilities and obligations arise from the child's birth and are not contingent on the court's decision recognizing paternity.
Furthermore, it's crucial to highlight that the duty to provide for the child is equally shared between both parents, irrespective of their marital status. While it is indeed often the mother who seeks child support through legal means, this does not imply that the sole responsibility for the child's care rests on the father. This principle holds significant weight when determining the amount of child support payments, as the courts acknowledge that both parents bear an equal obligation to support the child and compute the appropriate amount of support accordingly.
However, the tangible consequences of this principle are noteworthy. Typically, the obligation to pay child support arises during divorce proceedings. In cases of contention, the child is considered a minor and is represented by the parent with whom they reside. If the parents no longer share the same residence, and the child primarily resides with the mother, it is presumed that she covers the day-to-day expenses necessary for the child's upbringing. In such instances, there is no need for the custodial parent to provide additional evidence of their expenses, as the very fact of cohabitation is sufficient to presume that they are catering to the child's needs. The non-custodial parent is then required to make up for the absence of personal care through financial support. Consequently, as established by judicial practice, the obligation to pay child support falls on the parent with whom the child does not live.
III. Unconditional Nature of Alimony Obligations
1. Parental financial support for the child is provided without conditions.
2. The lack of income on the part of a parent does not exempt them from the responsibility to provide financial support. In such situations, the parent is still required to pay alimony equal to the minimum necessary for subsistence.
As outlined by the phrasing of Article 1212 of the Civil Code, while calculating the alimony amount, the genuine necessities of the child are taken into account, even though the absolute nature of the alimony obligation means it cannot be dismissed on the grounds that the minor or their legal representative has not substantiated their need. While the court does factor in the actual income of the parent when establishing the alimony sum, the mere absence of income doesn't lead to exemption from alimony responsibilities. Based on the prevailing practice within common courts, a parent without a stable financial situation and reliable material income cannot be absolved of the duty to support their children. This perspective underscores the unconditional nature of the obligation to provide for one's children; if a parent is capable of working, they are always held accountable for furnishing their child with a reasonable livelihood. Consequently, the unemployment of a parent who is obligated to pay alimony does not grant the court the grounds to deny the minor the subsistence minimum or excuse the parent from fulfilling their alimony obligations, unless due to illness or other justifiable reasons.
A case addressed by the Supreme Court of Georgia clarified that even in the absence of a steady income, the minimum alimony amount can be set at 150 GEL. In a broader context, when establishing the alimony figure, the courts adopt the minimum standard of living prevalent in the country as a benchmark. This approach is taken to prevent the imposition of a superficial alimony that should genuinely guarantee a reasonable quality of life for the dependent individual. The general courts rely on official data released by the National Statistical Service of Georgia to determine the subsistence minimum.
IV. Parent's Income
1. When calculating the alimony amount, the court considers the parent's income, encompassing all forms of actual earnings, not limited solely to wages.
2. The assessment of income plays a pivotal role in determining the alimony quantum set forth by a court ruling.
Article 1214 of the Civil Code stands as the key provision employed by general courts to calculate alimony amounts. As stipulated by this provision, the determination of alimony should be rooted in a fair and reasonable assessment, one that takes into account the genuine financial circumstances of both the child and the parents. The paramount starting point for the court lies in the child's needs and best interests. In this context, it can be asserted that, as a fundamental guideline, the child's best interests supersede all other considerations, whether they belong to the parent or external parties. The law does not establish an upper limit for the alimony commitment, and its quantum, in the event of a dispute, hinges on the court's discretionary judgment.
Parental income stands out as a pivotal criterion in gauging the alimony amount. Generally, the focus tends to concentrate on the parent who bears the responsibility of paying child support, as opposed to the parent with whom the child resides. Courts commonly establish the fact that the individual obligated to provide alimony indeed possesses income. Typically, primary income stems from employment, with factors like salary, bonuses, overtime, and similar aspects being pivotal. To substantiate the defendant's income, the plaintiff frequently solicits documentation from the Revenue Service that outlines the individual's monthly or yearly salary earnings. Nevertheless, the existence of income doesn't always correlate with active employment. The term "real financial situation" referred to in Article 1214 of the Civil Code is broadly construed and encompasses more than just income derived from formal employment relationships. When assessing the alimony amount, the court takes into account all forms of income, encompassing those arising from primary or supplementary work. The court also considers factors such as the defendant's entrepreneurial activities, ownership of commercial establishments or enterprises, professional engagements, and more. In a particular instance, the court deemed it satisfactory to ascertain the defendant's income by demonstrating that they were engaged in automobile trading, owned a woodworking workshop, practiced as a musician, and earned income through commissions. Additionally, the court factored in the defendant's residence in a village where they owned land, cultivated agricultural produce, and sold it in the market. Occasionally, a case might lack evidence pertaining to the precise amount of the plaintiff's earnings, even if their employment is established. This aspect should also be taken into account when determining the alimony quantum.
The timing of income disclosure carries substantial importance. The Supreme Court of Georgia elucidates that it's crucial to ascertain the income at the point of the court's decision to impose alimony. Consequently, even if an individual had no income in the past (for instance, at the time of initiating legal proceedings), if it is proven that they had income during the course of the case, the court will rely on the updated information. This stance is reinforced by Article 1221 of the Civil Code, which accommodates the possibility of adjusting the court-imposed alimony amount in light of changes in the parents' financial circumstances.
V. Obligations to Third Parties
1. In calculating the alimony sum, the court considers a range of factors, encompassing the health condition of the parent.
2. Beyond evaluating the financial circumstances of the parent and the child's requirements, the court also considers any commitments the parent might hold towards external parties. These could encompass obligations like debt settlement or supporting other dependents.
When determining the appropriate alimony amount, the court is obligated to consider a multitude of factors that can impact the effective fulfillment of the parent's responsibility. The scope of consideration extends beyond the parent's financial capacity and encompasses their familial context. This encompasses evaluating the extent of the parent's commitments toward other individuals who might also rely on their support. The parent's state of health and their capacity to work also hold significance in this evaluation.
In a recent case, the court acknowledged the significance of the defendant's familial obligations. This encompassed the defendant's parents, notably his ailing father, as well as his wife and two minor daughters from a subsequent marriage. Such factors, if substantiated, can influence the quantum of alimony that the parent is legally obliged to provide.
The Civil Code aims to strike a balance between the welfare of the child and the obligated parent, while also considering the interests of other relevant parties. Consequently, the alimony amount should not be excessively high to the extent that the parent cannot feasibly afford it. The Supreme Court of Georgia underscores that the decision should be enforceable, and the person liable for alimony must possess the actual means to fulfill the owed amount.
It's worth highlighting that determining the appropriate alimony amount is a multifaceted procedure that demands an exhaustive examination of all pertinent circumstances. The court is required to meticulously evaluate all relevant elements in order to arrive at a rational and equitable assessment.
VI. Child Needs
1. When establishing the alimony sum, the court considers factors including the child's age, health status, and additional requirements.
2. The child's necessities are evaluated to encompass not only fundamental expenses like food and clothing, but also all other expenditures that arise within the standard social life of the child.
3. The divorce of parents must not result in a decline in the child's quality of living conditions.
In the process of determining alimony, the court takes into account a range of factors, including the child's age, health, and other requirements, alongside the financial positions of the parties involved. If the child has a specific health condition necessitating additional treatment or special needs, the court will also factor in these circumstances when deciding on the alimony amount. For example, in a specific case, the court clarified that the alimony should incorporate a minor's severe illness along with the supplementary costs related to treatment, medications, and medical services. It's vital to differentiate this situation from Article 1215 of the Civil Code, which imposes a one-time responsibility on parents to contribute to extra expenses arising from exceptional circumstances, such as the child's declining health or a specific incident.
Furthermore, the child's essential expenditures cover not only fundamental needs like food and clothing but extend to all other costs linked to the child's social existence, including educational programs, sports, and cultural activities. The court takes into consideration the child's physical, social, mental, emotional, and spiritual needs when determining the alimony sum. Moreover, as the child matures, the costs related to their participation in public life also increase. As a result, the alimony obligation encompasses not solely present expenses but also future costs inherent to life's natural progression.
It's of utmost importance to ensure that the conclusion of the parents' shared life, often a distressing experience for the child, does not lead to any additional harm or decline in the child's living standards. The payment of alimony, as per the prevalent standard of common courts, seeks to safeguard the child's interests and furnish them not just with the basic essentials of life but also, when feasible, to uphold the standard of living they would have enjoyed under normal circumstances.
VII. Additional Costs
1. The parent could be obligated to contribute to extra expenses.
2. To partake in extra expenses, the parent needs to provide alimony for the child.
3. Contributing to additional expenses is applicable exclusively to a minor child.
Article 1215 of the Civil Code is a distinct provision that applies solely to specific scenarios and does not possess the continuous nature of alimony. Unlike alimony, which constitutes an unconditional responsibility of the parent and doesn't necessitate a particular need from the child, the duty to contribute to additional expenses emerges within exceptional circumstances. The Georgian Supreme Court clarifies that “alimony funds may not be sufficient to cover the additional expenses caused by special circumstances. This is a contribution to additional expenses due to special circumstances, not an additional payment of child support expenses.”
This norm recognizes particular cases, such as illness, disability, and akin situations (Ejusdem Generis), as special instances. Consequently, for the scope of Article 1215, expenses like purchasing school textbooks, for example, are not categorized as additional costs. Regarding the prerequisites for applying the article, the Kutaisi Court of Appeal expounded that to participate in additional costs, it's mandatory for the parent to provide alimony for the child. The Georgian Supreme Court has endorsed this explanation as well. Hence, even if the conditions for participating in additional expenses are met, the parent will not be compelled to partake if they aren't obligated to pay alimony.
Article 1215 solely establishes the commitment to participate in additional expenses for a minor child. Consequently, unlike alimony, an adult child with disabilities cannot seek participation in extra costs. Under this article, it's feasible to mandate the party to prepay forthcoming expenses or reimburse expenses already incurred. The party seeking involvement in additional costs must substantiate the requirement for such expenses or their actual payment. In the absence of evidence of special need, there is no basis for participating in additional expenses, and the court will not impose an extra sum on the parent solely based on the respondent parent's increased income. Moreover, though participation in additional expenses isn't directly linked to alimony, the court takes into account the alimony amount; if the alimony sum encompasses special expenses, there's no need to impose an extra amount on the parent.
Participation in additional costs must be determined through fixed amounts and cannot be proportionately linked to the parent's salary or other income. While participation in additional costs has a one-time nature, it doesn't exclusively denote a solitary payment. Depending on the necessity, the parent can participate in extra expenses by paying the amount established at a particular juncture. If the child's health necessitates it, the parent might participate in additional expenses akin to alimony, which is established on a monthly basis but not beyond the child reaching legal adulthood.
VIII. Claim Period for Alimony
1. Alimony is typically sought for future periods.
2. Alimony for past periods can be pursued if the parent evaded payment during that time.
Typically, alimony is sought exclusively for forthcoming periods as per the general rule. Nonetheless, if a parent deliberately avoided making alimony payments, it's possible to claim alimony for previous periods provided measures were taken to rectify the non-payment. The pursuit of alimony for past periods is confined to debts that accrued within three years prior to the initiation of the lawsuit. Initiating measures usually entails filing an alimony claim against the defendant. The responsibility of substantiating both the occurrence and timing of filing the claim rests with the claimant, a task achievable through written documentation or the testimony of witnesses.
In a particular instance, the Supreme Court diverged from the Court of Appeals' rationale and decreed that testimonies of witnesses can serve as evidence to establish that alimony was requested even prior to filing the lawsuit. The court accedes to the alimony request for the past period once the plaintiff confirms that the request was communicated to the defendant.
The exact wording of the request holds pivotal significance, as the court's examination of the dispute cannot exceed the ambit of the request. Even though the legislator links alimony payment to the commencement of legal proceedings, the court's verdict is confined to the specifics of the presented claim. In a specific case, the Supreme Court of Georgia expounded that alimony should only be enforced for future periods starting from the date of the court's decision. This rationale is based on the fact that the claim was not satisfied in the lower courts and the plaintiff did not seek the annulment of the Court of Appeals' verdict in the cassation complaint.
IX. Alimony Modification or Exemption
1. In the event of alterations in the parent's financial or familial circumstances, it's feasible to reassess the alimony amount.
2. An exemption from alimony is permissible if the failure to make payments was due to illness or another valid cause.
When determining, modifying, or even entirely absolving alimony obligations, the court's guidance is rooted in both the financial status of the obligated party and the needs of the dependent individual. In a specific instance, the plaintiff (father) sought a reduction in alimony amount and a partial exemption from payments. This plea stemmed from the necessity to cover substantial costs for costly medical treatments abroad, required for another dependent family member (the father) due to their deteriorating health. The plaintiff found himself compelled to incur loan obligations to meet these expenses. The court deemed this request reasonable and granted a partial release from alimony responsibilities.
Generally, alterations in the financial and family circumstances of the alimony obligor that transpire after the alimony has been mandated, and profoundly impact their situation – such as income reduction, health deterioration, a rise in dependents, or a decrease – constitute new circumstances. It's essential to underline that the court possesses significant discretion in disputes concerning alimony payments. This is a prerogative of the court, not a compulsory directive. The Supreme Court of Georgia elucidates that for the court to exercise its discretionary authority, the following prerequisites must be fulfilled: (1) the obligor must be unwell or present a valid rationale; (2) the obligor must amass alimony debt; and (3) there should be a direct linkage between the first two conditions.
In a specific case, the Supreme Court of Georgia exempted a parent from alimony payment due to their limited work capacity, inability to move or independently care for themselves, and the necessity for a caregiver. The parent was unable to provide support for their child or themselves. Nevertheless, exemption from alimony payment isn't unending or absolute. If the circumstances that led to the release from alimony payment obligations cease to exist – for example, an improvement in health condition – the dependent individual has the right to appeal to the court and request a reassessment of alimony terms.
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