After a divorce one spouse may claim alimony from the other, but not automatically. The Family and Guardianship Code makes it depend first of all on how the court assessed fault for the breakdown of the marriage, and on the financial situation of the entitled person. Fault also determines whether the obligation expires after five years or may last without a time limit.
When alimony can be claimed
The rules are set out in art. 60 of the Family and Guardianship Code. In practice several variants are distinguished:
| Ruling on fault | Who may claim | Condition | Duration |
|---|---|---|---|
| No ruling on fault | either former spouse | destitution | up to 5 years from the divorce, unless the court extends this period due to exceptional circumstances |
| Both spouses at fault | either former spouse | destitution | no statutory time limit, because the obliged party was found at fault |
| One spouse solely at fault | the innocent spouse | a material deterioration of the financial situation as a result of the divorce; destitution is not required | no statutory time limit |
| One spouse solely at fault | the solely-at-fault spouse | no right to alimony from the innocent spouse | not applicable |
In every variant the obligation expires when the entitled person enters a new marriage. A new informal relationship does not cause expiry by operation of law, but may justify an application to amend or revoke alimony if it changes the financial situation of the entitled person.
Destitution versus material deterioration of the situation
The Act does not define destitution. Case law accepts that it refers to a situation in which a person is unable, by their own efforts and resources, to meet their justified needs, e.g. due to illness, age or a long career break related to running the household.
A material deterioration of the financial situation is a less demanding threshold. The court compares the standard of living of the innocent spouse before and after the divorce. Alimony does not have to make up this difference in full, but should "contribute to an appropriate extent" to meeting the person's justified needs.
How the court sets the amount
The provisions on the maintenance obligation between relatives apply accordingly to alimony between former spouses. The amount depends on two elements:
- the justified needs of the entitled person: housing, treatment, food, and for alimony from a solely-at-fault spouse also the costs of maintaining a similar standard of living;
- the earning capacity and assets of the obliged person, i.e. not only what they actually earn, but what they could earn by using their qualifications and property.
The second rule matters for entrepreneurs. Low income shown in a tax return does not settle the matter if the company's turnover, assets or lifestyle suggest that the capacity is higher. Conversely, an entitled person who could work but does not take up employment must reckon with the fact that the court will take their potential earnings into account.
The obligation of the former spouse takes precedence over the obligation of that person's relatives, e.g. their adult children or parents. The obliged party may also refuse payment where such a demand violates the principles of social coexistence.
How to pursue alimony step by step
- Application in the divorce case or a separate suit. The claim may be made already during divorce proceedings and also, after the final divorce, in a separate case before the district court.
- No court fees. The party pursuing alimony does not have to pay court fees, and the same applies to the defendant in a case to reduce alimony.
- Evidence. Income certificates, bills for treatment and housing, medical documentation, information about the other party's assets and income.
- Interim relief. During the proceedings an application may be filed for interim relief, i.e. the temporary payment of a set amount.
- Settlement or agreement. The former spouses may also set alimony in a court settlement or in a contract, which is often quicker and cheaper.
Claims for arrears of alimony lapse after three years. If the situation of either party changes, e.g. the obliged person loses their job or the entitled person takes up well-paid employment, a change of amount or revocation of alimony may be requested.
Enforcement of unpaid alimony
A judgment or court settlement with an enforcement clause allows the case to be referred to a bailiff. In the enforcement of alimony from employment income the employer may withhold up to three-fifths of the salary, i.e. more than for other debts, and alimony takes precedence over other claims. The bailiff may also seize a bank account, receivables or the debtor's property, including an entrepreneur's.
Alimony and income tax
This aspect often escapes attention during a divorce. Alimony to an adult former spouse is exempt from PIT only up to PLN 700 per month, and only if it results from a court judgment or court settlement. Any excess above this amount, as well as all alimony paid under a private agreement, is income from other sources that must be shown in the annual return. Example:
- Ms Agnieszka receives PLN 2,000 per month under a judgment. PLN 700 is exempt, and PLN 1,300 per month, i.e. PLN 15,600 per year, is reported in her return as income from other sources.
- If the same PLN 2,000 were paid under an agreement concluded outside the court, the exemption would not apply.
For the person paying alimony, the PIT Act does not provide for any deduction from income. That is why, when negotiating a settlement, it is worth calculating the tax effects for both sides.
How Good Balance can help
As part of legal consultations we help assess whether and to what extent alimony is due and prepare for the case. We also draft settlements and agreements under our contract drafting service, taking into account the tax consequences for both sides.