Final orders on divorce: custody, maintenance, the family home and pensión compensatoria, and how they are varied later

What the final orders are

They are the orders fixed by the divorce judgment, either by approving the convenio regulador — the settlement agreement the spouses put before the court (art. 90 CC) — or by the court deciding for itself where there is no agreement (art. 91 CC). They replace the interim measures and are complied with from the moment they are made, even if they are appealed (art. 774.5 LEC). They are «final» in the sense that they close the proceedings, not in the sense of being immovable: they can be varied when circumstances change.

The court decides on the evidence the parties put before it and on the report of the equipo psicosocial — the psychologist and social worker attached to the court — where custody is in dispute. That is why the important work is done before the hearing: a well-constructed proposal, with real figures, has far better prospects than an application for everything.

Custody and contact arrangements

Patria potestad, parental responsibility, continues to belong to both parents save in exceptional cases; what is decided is the guarda y custodia: whom the children live with day to day. The case law of the Tribunal Supremo treats shared custody as the normal and desirable arrangement where both parents are suitable, live reasonably close to one another and can organise themselves, because it allows the children to keep both parents in their daily life. It does not require a cordial relationship between the parents, only a level of conflict that does not harm the children.

Sole custody is ordered where there are concrete reasons: distance between the two homes, real availability, very early age, the well-founded wish of a child with sufficient understanding, or one parent’s lack of capacity. Shared custody is excluded where a parent is the subject of criminal proceedings for an attack on the life, physical integrity, liberty or sexual integrity of the other parent or of the children, and also where the civil court itself finds well-founded indications of domestic or gender-based violence (art. 92.7 CC).

The régimen de estancias — the timetable of stays, what English lawyers would call contact — is fixed in detail: alternate weekends with or without overnight stays, one or two weekday afternoons, half the school holidays, long weekends, birthdays, and telephone or online contact. The more specific it is, the fewer disputes afterwards. Grandparents may also apply for contact of their own (art. 160 CC).

Child maintenance and extraordinary expenses

Maintenance for children covers food, housing, clothing, medical care and education (art. 142 CC) and is fixed in proportion to the means of the parent paying it and the needs of the child receiving it (art. 146 CC). Under sole custody it is paid by the non-resident parent; under shared custody the costs are divided according to each parent’s income, and where the difference in income is wide, the higher earner pays the other a sum to even things out. The indicative tables of the Consejo General del Poder Judicial (the General Council of the Judiciary) serve as a reference point, but the court follows the evidence in each case.

Maintenance is normally uprated each year in line with the IPC, the Spanish consumer price index, and is paid until the children reach financial independence, not until they turn eighteen: an adult child who is studying and making reasonable progress keeps it (art. 93.2 CC). Extraordinary expenses (orthodontic treatment, glasses, treatment not covered by insurance, agreed activities, summer camps) are divided separately, normally 50/50, and they are the main source of later conflict: the judgment or the convenio regulador should define what counts as extraordinary and how the expense is notified and approved.

The family home and pensión compensatoria

The uso de la vivienda familiar, use of the family home, is given to the minor children and to the parent they live with, until they all reach full age (art. 96.1 CC, as amended by Ley 8/2021); where there are no children, to the spouse most in need of protection and for a limited period (art. 96 CC); under shared custody, with no express statutory rule, the Tribunal Supremo applies that same approach of a time limit. We develop this in the guide to the family home on divorce.

Pensión compensatoria, spousal maintenance (art. 97 CC), corrects the economic imbalance the divorce causes to one spouse by comparison with their position during the marriage: the typical case is the spouse who gave up work or cut back a career to look after the family. It is not child maintenance and it is not a punishment. The court weighs age, health, qualifications and employment prospects, past and future dedication to the family, help given in the other spouse’s business, the length of the marriage and each spouse’s means. Today the usual order is a fixed-term payment where the imbalance can be expected to be overcome (settled case law of the Tribunal Supremo since the full-court judgment of 19 January 2010); an indefinite award, the so-called «lifetime» one, is reserved for long marriages with spouses of advanced age and no realistic prospect of work. By agreement it may be replaced by a capital sum or by a transfer of assets (art. 99 CC), or fixed in the judgment itself as a single payment (art. 97 CC), which in divorces with substantial assets is usually the cleanest solution.

Variation: when life changes

Orders may be varied where there is a substantial change in the circumstances taken into account when they were made (art. 90.3 CC and art. 775 LEC): loss of a job or a significant change of employment, a move, new family responsibilities, children growing up and their needs changing, a child becoming financially independent, or the recipient of pensión compensatoria living with a new partner (which brings it to an end, art. 101 CC). The change must be significant, lasting and not engineered to escape the obligation: a voluntary drop in income will not do.

It proceeds as fresh proceedings, by agreement if the parties are at one or contested if they are not (with the prior attempt at an out-of-court solution required by Ley Orgánica 1/2025), before the same court that made the orders, with the public prosecutor taking part where there are minor children. Until there is a new decision, the previous order remains in force and must be complied with: stopping payment of your own accord creates a debt and can amount to the offence of abandonment of the family (art. 227 of the Código Penal, the Criminal Code).

Where what you have is a breach (maintenance unpaid, contact not honoured), the route is not variation but enforcement of the judgment (art. 776 LEC): attachment of the sums owed, coercive fines for breach of the contact arrangements and, in repeated cases, the possibility of changing the custody arrangements.

Deadlines worth not letting slip

• The final orders are complied with from the judgment, even if it is appealed (art. 774.5 LEC); the period for appealing is twenty days (art. 458.1 LEC).
• Child maintenance is uprated each year in line with the IPC on the date the judgment fixes; sums not claimed are time-barred after five years (art. 1966 CC).
• Variation can be applied for at any time at which a substantial change occurs; until it is decided, the previous order governs.

Where we work

Our office is in Villanueva de la Cañada, and we act regularly in Brunete, Villanueva del Pardillo, Valdemorillo, Quijorna, Majadahonda, Las Rozas, Boadilla del Monte, Pozuelo de Alarcón and the rest of western Madrid. Divorces are heard by the court of first instance for the last matrimonial home; where the spouses already live in different judicial districts, the party bringing the claim may choose between that last home and the respondent’s residence (art. 769 LEC). Villanueva de la Cañada, Brunete, Quijorna and Boadilla del Monte belong to the judicial district of Móstoles; Valdemorillo and Villanueva del Pardillo to that of San Lorenzo de El Escorial; Majadahonda and Las Rozas to that of Majadahonda; Pozuelo de Alarcón has its own. This guide forms part of our divorce practice.