Child Support and Spousal Support in Spain for US Service Members

Your LES is not your paycheck: how a Spanish court looks at military pay, allowances and savings when it fixes child support and a compensatory pension.

Sooner or later, a letter arrives. It is usually polite, written by your spouse’s Spanish lawyer, and it contains two numbers. The first is a monthly amount for the children, calculated, it says, as a modest share of your income. The second is a «compensatory pension» for your spouse, for a few years, «given the imbalance that the breakdown of the marriage will cause». The income figure in the letter is your gross pay, read straight off your Leave and Earnings Statement, with every allowance added in.

If you are a US service member stationed in Spain, this article is about that letter. It explains what Spanish law actually says about child support and about the compensatory pension, how a Spanish judge reads military pay, and what you should do before you answer.

Why Spanish law applies

If your children live in Spain, a Spanish court will normally decide your case, as we explained in our article on child custody in Spain for US military families. The same is true of the money. Under the 2007 Hague Protocol on the law applicable to maintenance obligations, which Spain applies as an EU Member State, maintenance is governed by «the law of the State of the habitual residence of the creditor». For children living in Spain, that means Spanish law.

Support between spouses has a special rule: either spouse may object if another country, in particular the one where you last lived together, has a closer connection with the marriage (Article 5 of the Protocol). That argument is sometimes worth raising, but it has to be raised at the right moment and with evidence. In most cases involving families who have lived in Spain for years, Spanish law will govern both questions.

Two different things: child support and the compensatory pension

American readers tend to think in terms of child support and alimony. Spanish law has two different institutions, and they follow different rules.

Child support (pensión de alimentos) is the children’s right. It covers what is «indispensable for sustenance, housing, clothing and medical care», together with the children’s education (Article 142 of the Spanish Civil Code). It is not optional, and the right to it cannot be waived (Article 151).

The compensatory pension (pensión compensatoria) is something else. It is not alimony in the American sense and it is not paid simply because one spouse earns more. It exists only where the divorce causes one spouse an economic imbalance compared with the other, which means a worsening of the position that spouse had during the marriage (Article 97). The Spanish Supreme Court, sitting in plenary session, has made the point clearly: the compensatory pension is not compensation for the marriage, and it is not a mechanism for equalising the spouses’ wealth (judgment 864/2009, of 19 January 2010).

How a Spanish judge fixes child support

The basic rule fits in one sentence: the amount of support «shall be proportionate to the means of the person who gives it and to the needs of the person who receives it» (Article 146). Both parents owe support, each in proportion to their own resources (Article 145), and the judge must decide «the contribution of each parent» (Article 93).

In practice, this means three things.

First, the court looks at the children’s real needs: housing, school, food, clothing, health, activities. Rent counts, but rent is not the same thing as support. A court will ask whether the home chosen is reasonable for the family’s circumstances.

Second, the court looks at the means of both parents, not only yours. If your spouse speaks two languages, holds a university degree or received a significant sum when the family home was sold, that is part of the picture.

Third, the court looks at the time the children spend with each parent. Joint custody reduces, but does not automatically eliminate, child support. The Supreme Court has held that where there is a clear disproportion between the parents’ incomes, joint custody does not exempt the parent with the higher income from paying (judgment 607/2022, of 16 September).

The General Council of the Judiciary publishes guidance tables for child support. They are useful as a reference, but they are not binding, and no judge is required to apply them.

Your LES is not your paycheck

This is where many service members lose ground without realising it. The other side reads the gross figure on your Leave and Earnings Statement and treats it as disposable income. A Spanish judge does not have to accept that reading, but someone has to explain why.

Taxes and deductions. Your federal income tax, Social Security, Medicare, retirement contributions and other mandatory deductions are not money you can spend on anyone.

Housing allowances. Overseas, the housing allowance is usually the Overseas Housing Allowance (OHA). It pays your rent up to a ceiling that depends on your location, your pay grade and whether you have dependents. If your rent is lower, you receive less. It is not a bonus: it follows the rent you actually pay, and it changes when your housing changes.

Cost-of-living allowance. The overseas COLA exists to offset higher costs at your duty station. It is part of what you receive, but it is not extra wealth.

Pay that may disappear. Special pays, incentive pays and any amount linked to a particular assignment can end with your next set of orders or with your retirement. A support order built on today’s figures should take tomorrow’s into account.

Honesty matters here, and it works in your favour. A Spanish court will treat your allowances as part of your means, and the Navy’s own guidance counts the basic allowance for housing or OHA as part of gross pay when it suggests interim support. The goal is not to hide anything. It is to show the court, line by line, what each item is, what it is for and what is actually left, with your LES and the regulations translated into Spanish by a sworn translator.

Savings, investments and crypto

Spanish law looks at «means», not only salary. Savings, investment accounts and cryptocurrency can all be taken into account when a court fixes child support or decides whether there is an imbalance between the spouses. Expect the other side to mention them.

Two points are worth remembering. The first is that the same rule applies to both spouses: assets your spouse holds, including any share of the proceeds from a home sold during the separation, are also part of the analysis. The second is that the division of what you own together is a separate matter, decided when the marital property regime is liquidated. Savings should not be counted twice, once to raise support and again when the assets are divided.

What you pay while the case is pending

Many service members start paying a voluntary amount as soon as they separate. That is the right instinct, and it usually keeps the peace with your command. US Navy personnel regulations expect members to support their families and set out an interim guide for cases where there is no court order or written agreement. That guide is interim only: once a court order or an agreement fixes an amount, the order or agreement controls.

Three practical rules follow.

Pay through traceable transfers, never in cash, and keep a record of everything you pay directly for the children, from school fees to flights.

Do not stop or reduce payments unilaterally without advice. A sudden cut can lead to a complaint to your command and gives the other side an easy argument in court.

Remember that what you pay voluntarily becomes a reference. If you pay a generous amount for months, it is harder to argue later that a lower figure is all you can afford. If the amount you are paying is more than you can sustain, ask the court for provisional measures. Once the case is admitted, the judge can fix each spouse’s contribution while the proceedings last (Article 103).

The compensatory pension: what the judge actually looks at

A request for a compensatory pension is not a formality. The court must decide, first, whether the divorce causes your spouse a real economic imbalance and, if it does, how much and for how long. Article 97 lists the factors: any agreements between the spouses; age and health; professional qualifications and the likelihood of finding work; past and future dedication to the family; collaboration in the other spouse’s business; the length of the marriage; the possible loss of a pension right; and the means and needs of each spouse.

In military families, these factors cut both ways, and it is better to say so plainly. A spouse who followed a service member from one duty station to another, and looked after the children while the other parent was deployed, may well have given up career opportunities. Spanish courts take that seriously. Equally, a spouse with a degree, fluent languages, current work and years still ahead in the labour market is in a very different position from one who has been out of work for decades. The evidence decides: qualifications, work history, job offers turned down, what happened at each move.

If a pension is granted, it can be limited in time. The Supreme Court allows a time limit where a prospective assessment shows that the imbalance can reasonably be overcome within that period, and requires the courts to make that assessment with prudence (judgment 185/2022, of 3 March). Once fixed, the pension can only be changed if the spouses’ fortunes change (Article 100), and it ends when its cause ceases or when the receiving spouse remarries or lives with a new partner (Article 101).

Your military retirement pay is a different question

Many service members worry, with good reason, about what happens to their retired pay. That question does not belong in the support discussion. It depends on the matrimonial property regime that applies to your marriage, on US federal law and on how any Spanish order would be put into effect in the United States. We will deal with it in a separate article. For now, the essential point is this: do not agree to anything about your retirement pay, in a negotiation about support, without specific advice on both sides of the Atlantic.

How we work on support cases

We rebuild your real income. Line by line, from your LES, your tax returns and the applicable regulations, with sworn translations.

We look at both sides. Your spouse’s qualifications, work, income and assets are part of the case, and we ask the court to require the documents if they are not provided voluntarily.

We put a number on the children’s needs. School, housing, health and activities, with receipts, rather than a percentage of your gross pay.

We plan around your career. Upcoming orders, the end of an assignment or retirement can all justify a different amount or a review clause, and we build them into the proposal from the start.

We negotiate from evidence. A fair agreement is almost always better for your children than a long fight. We will tell you when an offer is reasonable, and we will defend you in court when it is not.

A final word

Support in Spain is not a percentage of your gross pay. It is a judgment about real needs and real means, on both sides, and it is made on the evidence that each party puts in front of the court. Come prepared, be transparent and be reasonable, and the court will hear you.

This article is general information about Spanish law and does not replace advice on your particular case.

Eduardo Domínguez-Lobato Rubio, Attorney at Law

We recommend that you contact us. At Domínguez Lobato Abogados we advise English-speaking families in Spain on divorce, custody and property. Email us or write to us on WhatsApp at +34 625 19 10 19. Fixed written quote and a first feasibility assessment at no cost and without obligation.

📍 Domínguez Lobato Abogados — calle Porvera, 6, 2.ª planta, 11403 Jerez de la Frontera (view on Google Maps).