Alimony and Custody in Divorce Cases

The two headings that most occupy the minds of couples entering the divorce process are alimony and custody. Because one directly affects the economic future and the other the child’s daily life, our clients generally ask about these two topics together, mixing them up with one another: "Who pays alimony, how much do they pay, who gets custody, is joint custody possible?" Yet alimony and custody are two separate institutions that serve different purposes and are evaluated by different criteria. Alimony concerns protecting the economic balance of one party, while custody concerns by whom the care of the child will be continued.

This uncertainty can lead to unnecessary anxiety and sometimes to wrong expectations at the beginning of the process. In the headings below we address in concrete terms the difference between the types of alimony, the criteria the judge looks at in the custody decision, when joint custody may come onto the agenda, how the amount of alimony is determined, and what can be done when it is not paid. Our aim is not a repetition of general information, but to share realistic answers to the questions we frequently encounter in our clients’ files.

What Are the Types of Alimony in Divorce?

In Turkish law there are three separate types of alimony that may come onto the agenda during and after the divorce process, and these serve different purposes. Interim maintenance (tedbir nafakası) is given to secure the livelihood of the parties and of the children, if any, during the case, while child-support maintenance (iştirak nafakası) is the contribution share of the parent who does not receive custody towards the child’s expenses, and poverty maintenance (yoksulluk nafakası) aims to protect the economic balance of the spouse who will fall into poverty because of the divorce. These three types of alimony can be requested together in the same file, and the court evaluates each on separate grounds.

• Interim maintenance. It is awarded temporarily to meet the daily needs of the spouse and the children while the case is ongoing, and it terminates by itself once the case is concluded.
• Child-support maintenance. It is the regular contribution made by the parent who does not receive custody to the child’s education, health and care expenses, and it continues until the child reaches the age of majority.
• Poverty maintenance. It may be bound to the spouse who will fall into economic hardship as a result of the divorce, with an assessment of the fault and need situation, indefinitely or under certain conditions.

It is important that these three types of alimony be evaluated independently of one another; for example, a spouse who receives interim maintenance does not automatically also receive poverty maintenance together with the divorce decision — this must be requested separately and its conditions must be met. Similarly, child-support maintenance is a right tied to the benefit of the child and is awarded not in the name of the parent who receives custody, but for the needs of the child.

Who Can Request Poverty Maintenance?

Poverty maintenance is arranged for the spouse whose standard of living will drop significantly because of the divorce and who will not be able to balance this drop with their own means. The requesting party must not be more heavily at fault than the other party in the events that led to the divorce; even if the parties are equally at fault, the spouse who will fall into poverty can still request this maintenance. Here the court evaluates together the parties’ income, assets, working capacity and the standard of living formed during the marriage.

In practice, poverty maintenance generally comes onto the agenda in favour of spouses in long marriages who have been homemakers or who have been away from working life for a long time. However, this is not an automatic right; the requesting party is expected to set out in the file that they will genuinely fall into poverty and that they cannot compensate for this situation with their own income. In the event that the party who will receive maintenance remarries or, without marrying, effectively lives with someone else as if married, the removal of the poverty maintenance can be requested by the other party.

How Is Custody Determined?

In the custody decision there is no provision in the law that directly gives prominence to the mother or the father; the judge evaluates each file in its own concrete circumstances and takes the best interest of the child as the basis. Who actually continues the care of the child, to what extent the daily order will remain stable, the time the parent can allocate to the child and the safety of the living environment they offer are the elements that come to the fore in this evaluation. In practice, although a tendency to give custody to the mother is seen for young children, this is not a rule; the father too can receive custody when he provides the appropriate conditions.

When making a custody decision, the court generally resorts to a social investigation report. An expert pedagogue or social worker examines the home environment, the economic and social conditions of both parents on site, and when necessary also meets with the child. Although this report is not binding for the court, it carries significant weight in the reasoning of the decision; if the judge is going to depart from the conclusion of the report, they must explain this with concrete grounds.

What Is the Principle of the Best Interest of the Child?

The principle of the best interest of the child is the fundamental criterion the court observes in every decision concerning the child, such as custody and personal relationship, and it takes precedence over the personal expectations of the parents. Under this principle, the judge evaluates as a whole not only the physical care of the child but also their educational stability, social environment, psychological state and emotional needs. The parent’s economic power alone is not decisive; what really matters is in which environment the child’s daily life will be continued more healthily.

In practice, this principle takes concrete form in different ways according to the child’s age. While care continuity and emotional bond come to the fore in young children, in school-age children the non-disruption of the educational order, and in adolescence the child’s own opinion gains more weight. Children who are accepted to have the capacity to discern are generally heard, usually accompanied by an expert, and their opinions are reflected in the decision; however, this opinion is not decisive on its own and is evaluated together with the other evidence.

In Which Situations Can Joint Custody Be Applied?

Joint custody can be accepted in practice in uncontested divorces where the parties agree and the court does not see this arrangement as contrary to the benefit of the child. In this arrangement the right of custody is recognised for both parents, but it must be clearly planned which parent the child will live with on a daily basis and how decisions will be taken together. If communication and cooperation between the parties are weak, joint custody can in practice turn into a source that disrupts the child’s order.

In contested divorces joint custody comes onto the agenda less, because in an environment where the parties’ disagreement continues it becomes difficult for the joint decision-making mechanism to work. The court decides by evaluating whether the communication between the parents will turn into a conflict to the detriment of the child. If joint custody is to be requested, the parties demonstrating their cooperation on this matter in concrete terms contributes to the healthy progress of the process.

Can a Custody Decision Be Changed Afterwards?

A custody decision is not an unchangeable judgment even after it becomes final. When the custodial parent neglects the care, experiences a health problem, the residence is moved to an environment detrimental to the child, or a similar significant change affecting the best interest of the child arises, the other parent can file a case for the change of custody. In this case too, the child’s current living order, school and psychological state are examined meticulously.

For a custody-change request to be accepted, it must be shown that the current situation has become clearly contrary to the benefit of the child; merely the disagreement between the parents or personal dissatisfaction does not constitute grounds for this change. Here too the court generally resorts to an updated social investigation report to re-evaluate the child’s present conditions.

How Is the Amount of Alimony Determined?

When determining the amount of alimony, the court evaluates together the income and payment capacity of the person liable for alimony, the needs of the alimony creditor and the previous standard of living of the parties. In child-support maintenance the child’s expenses such as education, health, nutrition and shelter are taken as the basis, while in poverty maintenance the preservation of the standard of living formed during the marriage is aimed at. When determining the amount, the court also takes into account the other financial obligations of the liable person; alimony is not determined to such an extent as to make the minimum living needs of the payer impossible.

The amount of alimony does not remain fixed over time. When a significant change occurs in the parties’ economic conditions, in the child’s needs or in general living expenses, an increase or decrease of the alimony can be requested. This request is generally brought to the court at annual intervals or on the grounds of a marked change in circumstances; neither party can unilaterally change the amount of payment.

In practice, situations such as the alimony-liable person losing their job, experiencing a health problem, or remarrying and founding a new family can also constitute grounds for the re-evaluation of the alimony. Similarly, if the income of the alimony creditor has increased or their needs have decreased, this situation too can be brought to the court. What matters is that the change is not a temporary fluctuation but a continuous situation that can be set out in concrete terms.

What Happens If Alimony Is Not Paid?

Since alimony is a debt adjudged by a court decision, its non-payment can give rise to both legal and criminal consequences. The alimony creditor can start enforcement proceedings for the unpaid amounts and can request that an attachment be applied to the liable person’s salary, bank account or other assets. In the event that the alimony debt is deliberately not fulfilled despite the existence of payment capacity, recourse can additionally be had to a complaint before the enforcement criminal court.

In practice, the liable person temporarily experiencing payment difficulty is distinguished from deliberately not paying despite having payment capacity; in the court and enforcement processes the real financial situation of the liable person is investigated. For the party experiencing payment difficulty, filing a case for the reduction of the amount of alimony is a healthier way of preventing the risk; requesting the accumulated debt afterwards in a single lump sum can increase both the interest burden and the legal risk.

What About the Rights of the Parent Who Does Not Receive Custody?

The parent who does not receive custody does not entirely lose their bond with the child. The court determines a regular personal relationship (visitation) programme for the parent to whom it does not grant custody; this programme is planned so as to cover periods such as weekends, the mid-term break and the summer holiday. The parent who does not have custody also has the right to obtain information about the child’s education, health and general development, and their opinion may be taken into evaluation in important decisions.

The personal relationship programme not working regularly — for example, the custodial parent continually obstructing the visits — can both constitute grounds for the re-evaluation of custody and the application of the arrangement can be requested by way of enforcement. For this reason, the visitation right not remaining on paper is a matter that must also be followed up meticulously in practice.

Do Alimony and Custody Work Differently in Uncontested and Contested Divorce?

In an uncontested divorce the parties agree among themselves on the amount of alimony and on custody and put this in writing in the divorce protocol; the court approves this protocol as long as it does not see it as contrary to the benefit of the child. In a contested divorce, however, these matters turn into separate claims that the court must investigate and conclude with evidence because the parties cannot agree, and this can prolong the process.

The advantage of the uncontested process is that the parties can flexibly structure the alimony and custody arrangement according to their own needs; however, it is important that the conditions set in the protocol be realistic and sustainable, because a subsequent change request requires a case process again. In the contested process, on the other hand, both parties supporting their claims with concrete evidence is decisive in terms of the healthy shaping of the outcome.

Although in the contested process alimony and custody claims are generally evaluated separately, the court handles the file as a whole; for example, the economic situation of the party who receives custody affects the amount of child-support maintenance, while the income level of the party who does not receive custody directly affects the payment capacity. For this reason, presenting the claims relating to alimony and custody in the file in a consistent and mutually supportive manner contributes to the healthy progress of the process.

Alimony and custody are the two most sensitive headings of the divorce process, and each file must be evaluated in its own concrete circumstances. As Av. Aydın, at our office in Konak/İzmir we examine your file from the outset and plan together with you how your alimony request and custody strategy should be structured; for your questions you can reach us 24/7 on the line numbered 0553 595 67 82.