IN BRIEF
In divorce, it is not only child support that can be claimed. You can claim from your ex-husband or ex-wife the means to maintain the same standard of living as during the marriage. Such a claim must be justified. In practice, however, this possibility is rarely used.
The Civil Code provides for the possibility to claim from the former husband or wife the means to ensure the same level of well-being as during the marriage Article 80. It states that, on divorce or after divorce, the former spouse may claim funds from the other former spouse in proportion to his/her assets to maintain his/her previous level of well-being.
In Latvia, it is relatively rare for divorces to be granted on the basis of a claim for the same standard of living as during the cohabitation. Karīna Landmesere, a solicitor in private practice, points out that so far in her practice there have been no cases in which the former spouse has been asked to provide for the former level of well-being in divorce proceedings. Understandably, this situation is more relevant to women and she has informed her clients of this possibility, but they have refused to use it. The lawyer suggests that this decision may have been made out of pride or resentment towards the former spouse.
In most situations after divorce, the children live with their mother and the father is obliged to pay child maintenance. Accordingly, the mother handles these funds in order to provide the child with everything he or she needs. As Ms Landmesser notes, in most cases where child maintenance is claimed, ex-husbands consider that the funds are being paid to their former spouses, who spend them on their personal needs, not on the children. Women also feel that asking for money for themselves would be humiliating.
If you decide to make use of the statutory option, the claim for funds from your ex-spouse must be justified. In many families, the husband is the breadwinner and the wife does not work for pay, but takes care of the children and the housework. In such marriages, women often lose out on material well-being and may have problems finding suitable work due to a lack of both experience and qualifications. In such situations, the ex-spouse may claim funds for maintenance or to maintain his/her previous level of well-being until he/she is able to find suitable work that matches the jobseeker's physical abilities, education and age. The claim must be well-founded and must not be based on a desire to “squeeze” as much benefit as possible out of the former spouse.
The court must also take into account the financial situation of the ex-spouse from whom the funds are sought. If the financial situation of one ex-spouse makes it impossible for the other to pay the sums claimed, the court will not uphold the claim. If, however, the claim is upheld, the amount will be determined in proportion to the state of the person's assets.
However, this does not mean that the person claiming from the ex-spouse can, after the divorce, stop working for pay and demand that the ex-spouse provide the same welfare as during the marriage. The former spouse is obliged to look for work, says lawyer K.Landmeser.
When there is no obligation to pay
As mentioned above, the request for funds must be justified. However, the former spouse will not be required to pay the funds in all cases where there is also a justification for the need for them. Civil Code Article 81 determines when there is no obligation to contribute to the former spouse's previous level of well-being.
If the time elapsed after the divorce is the same as the duration of the marriage, the former spouse is not obliged to contribute to the former husband's or wife's previous level of well-being. For example, if the marriage lasted five years, the maximum period during which the former spouse may claim provision for himself or herself is accordingly five years. Consequently, the longer the marriage, the longer the funds are payable to the former spouse to ensure the former level of well-being.
Maintenance cannot be claimed from a former husband or wife if the claimant has remarried. This is because, from the moment of remarriage, a person is entitled to receive maintenance from the new spouse. However, if the former spouse from whom maintenance is claimed has entered into a new marriage, he or she is not released from the obligation to provide the former spouse with the former level of well-being and the maintenance must be paid to the former wife or husband.
If the income of the person is sufficient to provide for his/her own needs, there is no reason to ask the ex-spouse to provide for those needs. Nor, if the person avoids obtaining the means of subsistence through his or her own work, is the former spouse obliged to maintain the former standard of living. The fact that the claimant is not working and has no income is not a sufficient basis for claiming maintenance, as it is possible that the person is avoiding work and income, the lawyer points out.
A parent is not exempt from paying child maintenance if he or she has insufficient income or is incapacitated. The situation is different for ex-spouses. The obligation to contribute to the former spouse's previous level of well-being is extinguished if the former spouse who is ordered to maintain the other former spouse has insufficient means of subsistence or has become incapacitated.
It would be unfair for financial support to be granted to an ex-spouse who is hostile to the payer or his/her relatives, or who has tried to harm both the ex-spouse and his/her relatives in some way. In order to prevent such situations, the Civil Code provides that the previous level of welfare should not be guaranteed in situations where the former spouse has committed an offence against the life, health, liberty, property or honour of the other former spouse or of his/her parents and children. Also in cases where a person has brought a knowingly false accusation of a criminal offence against the former spouse or his/her children or parents.
The previous level of well-being does not have to be ensured in cases where the ex-spouse has left the other ex-spouse in a state of helplessness, where there was an opportunity to help him/her, for example by not calling for emergency medical assistance because of anger or old grievances.
A former spouse who has lived extravagantly or illegally cannot bring a claim. There may be other important reasons which, in the opinion of the court, are incompatible with the right to receive the means to maintain the previous level of well-being, which is why the last paragraph of Article 81 of the Civil Code reads “other important reasons”.
Apart from the condition of the duration of the cohabitation during the divorce as the basic condition for the former spouse to enjoy the former level of well-being, the obligation to maintain the former spouse ends with the death of the former spouse who was obliged to contribute to the former level of well-being or with the death of the former spouse who received the funds.
When bringing an action for divorce, you must include a written request for funds to restore your spouse to his or her former standard of living. At the request of a party, the court may make an order providing for the maintenance of the other spouse's former standard of subsistence pending the divorce judgment. However, if the couple divorces before a notary, it is possible to agree between themselves on the amount of the funds to be paid by signing a notarial deed.
A claim for the payment of the funds to restore the previous level of well-being can also be brought after the divorce.
If the mother or father does not pay the child maintenance, the child maintenance is paid from the Maintenance Guarantee Fund. In situations where the former spouse does not pay the agreed means to maintain the former level of well-being, the only option is to turn to a bailiff who will start the procedure to recover maintenance from the former spouse.
Source: www.lvportals.lv
