Child support (Germany)

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Child support is the maintenance , the parents have to pay towards their children. This applies regardless of whether the respective parent also has custody of their child. In Germany, it is identical for children born in and out of wedlock and is largely regulated nationwide with the Düsseldorf table . The legal situation from January 1, 2008 is shown below. As of January 1, 2016, the current version of the Minimum Maintenance Ordinance applies.

General

If a parent in charge of a minor child, it usually met by the education and care of the child's maintenance obligation in the form of Natural maintenance (maintenance care), then the other parent owes Barunterhalt . Special regulations apply if both parents look after the child more or less equally (so-called parity change model ); then there is usually no cash maintenance for both parents - see the article exchange model for details.

There is a so-called increased maintenance obligation for underage children. This means that the person liable for cash maintenance must do everything reasonable to ensure the maintenance of the child, under certain circumstances, within the framework of what is permissible, also exercise a secondary activity and / or use his or her assets . An unemployed person liable for maintenance can only successfully invoke a lack of productivity if he is looking for a job as best he can ; As a rule, 20 to 30 applications per month are required . The minimum child support for underage children is now regulated in § 1612a BGB .

The courts usually calculate the amount of cash maintenance for children according to the Düsseldorf table . Further details can be found in the guidelines of the relevant higher regional court. Relevant factors are the income of the person liable for maintenance and the age of the child. Income is basically all net income. Of these z. B. work-related expenses (flat rate 5% or individual proof) and debts that can be considered deducted. Income generated through a new marriage is disputed (see splitting ). A so - called deductible remains with the person liable for maintenance .

The Düsseldorf maintenance table is used by the courts for orientation when calculating maintenance. The Düsseldorf table is only a recommendation and not a binding law; depending on the circumstances of the individual case, the actual maintenance may differ from the maintenance rates in the table. The maintenance amounts are usually adjusted every two years. The last adjustment was made on January 1, 2018 (outside of this ranking, January 1, 2008 with a new maintenance law). The amount of maintenance claims or maintenance obligations has increased or decreased in the individual age groups and income groups depending on the circumstances of the case. For the new federal states the supplementary Berlin table was valid until December 31, 2007 ; Since January 1, 2008, the Düsseldorf table has been in effect for all federal states in conjunction with the maintenance guidelines of the competent higher regional court (OLG).

In accordance with Section 1612b of the German Civil Code ( BGB), half of the child benefit is offset as required if one of the parents supports the child by looking after the child. The full crediting of the child benefit takes place in all other cases, § 1612b Abs. 1 Satz 1 Nr. 2 BGB.

The maintenance obligations towards adult children and those of children towards their parents and grandchildren towards grandparents are fundamentally different. As a rule, children of legal age are only entitled to maintenance if they are in general school education, vocational training or studying, or if they are not fully available for the labor market due to illness, i.e. if they are unable to provide for their own living or in full. A distinction is made between so-called adult privileged and non-privileged children. Those children who have not yet reached the age of 21, who still live in the household of at least one parent and are in general schooling are privileged . These children are largely on an equal footing with underage children, which primarily affects the amount of the minimum deductible that must be left to the person liable for maintenance.

Furthermore, in the case of an adult child - regardless of whether they are privileged or not - the child benefit is initially deducted in full from their needs according to the Düsseldorf table. Both parents are also always liable under maintenance law towards children of legal age, i.e. the parent with whom the child may still be living and who may still be providing care services is obliged to provide cash maintenance within the scope of his / her ability to pay.

Maintenance amount

Minors and privileged children of age

According to the legislature, underage children are not in a position to cover their maintenance needs with their own income, so they are always entitled to maintenance. Training allowances for underage children are deducted from taxes and social security contributions as well as a lump sum of 90 € (sometimes also 100 € since 2018) for work-related expenses. Children who are of legal age but still live in the same household as one of their parents and have not yet completed general schooling, the so-called privileged children, are treated as underage children.

The adjusted net income of the person liable for cash maintenance, the age of the child and the number of other underage children of the person liable for payment determine the amount of the cash maintenance claim. The maintenance guidelines of the individual higher regional courts provide for different calculation methods to determine the adjusted net income. As a rule, one starts from the net income of the person liable for cash maintenance and subtracts work-related expenses and eligible debts . The maintenance law term “work-related expenses” does not correspond to the tax law term “business expenses”. Child benefit is not part of the net income . If the person liable for maintenance has remarried, the more favorable current tax bracket must be used to calculate the child maintenance.

High-income caring parent

A significant financial imbalance, which is a prerequisite for at least partial liability of the caring parent, can only be assumed if there is a significant income difference, which could be assumed to be at least 500 euros. Below this “lower” threshold, there is no joint liability according to the quota.

The level of income of the parent with whom the child lives is only relevant for determining the level of maintenance entitlement if it is significantly higher than the income of the parent who is responsible for cash maintenance.

From an income of three times the income of the person liable for maintenance, there is no obligation to pay.

If the recipient is well off, the “appropriate deductible” increases to € 1200.

In the case of large differences in income, it may be appropriate to measure the share of liability of the parents for the amount owed by the parent who is not caring for, even in the case of underage dependents, taking into account the child benefit, in accordance with the principles applicable to adult maintenance.

Adult children

As a rule, children of legal age have to look after themselves unless they are unable to do so due to ongoing schooling , low training wages or studies . Children of legal age are entitled to maintenance if they cannot work for health reasons or if they are unemployed through no fault of their own. As a rule, the parents have to pay maintenance until the child has completed their initial education. When studying, it is not the standard period of study that is important, but the usual duration of the course. Parents are entitled to have the children's examination certificates and certificates shown to them.

There is no maintenance claim in a gap year for the child if it is a trip around the world. A maintenance claim can exist in the case of a voluntary social year, which serves as orientation or preparation for the desired course of study, or in the case of an au pair year, if the child is enrolled at a university abroad and the study abroad is closely related to the subsequent training or the subsequent studies.

Parents have to pay maintenance to an adult child when receiving social assistance. One parent may then have a higher allowance (1400 euros per month according to a BGH ruling in 2012).

The needs of a student or child who is no longer living in the household is assessed as a flat rate according to the Düsseldorf table . Due to the maintenance guidelines of the competent higher regional courts, however, different amounts can also arise here, so in Hesse this amount is to be seen as a guide value for average earners. Children of a higher-income parent may therefore be entitled to a higher maintenance amount. This does not include the costs for health and long-term care insurance and the tuition fees ; they may have to be paid additionally. For children of legal age who live in the same household as one of the parents, the entire child benefit is offset against the maintenance requirement. This also applies if the child receives child benefit himself.

Since, according to the legislature, education and care is no longer required for children of full age , both parents are obliged to provide cash maintenance. The income to be used as a basis for the amount of maintenance is then the sum of the income of both parents. The appropriate deductible is shown for each parent in the Düsseldorf table.

Assertion of the claim

Right to information

In order to claim the right amount of child maintenance, one must know the maintenance debtor's relevant net income. The maintenance debtor is obliged to provide information to the child or his or her legal representative. If the information is not provided, the right to information can be asserted in court. As a rule, action is then taken by way of step action for information and the resulting maintenance. As a rule, legal aid is granted for the action or, if the person liable for cash maintenance has a good income, he or she is entitled to an advance on legal costs against the person liable for cash maintenance. Child support can only be claimed retrospectively to a very limited extent ( Section 1613 BGB). For the details, it is advisable to seek advice from a lawyer specializing in family law or free of charge from an adviser at the local youth welfare office.

Costs of legal proceedings

The value in dispute of a maintenance claim is based on the difference between previous and future maintenance for one year. If each side is represented by a lawyer and the difference is less than € 25 / month, the costs are usually € 250. With a difference of 250 € / month, the total costs are around 1350 €.

Missing maintenance payments

Advance maintenance payments from the public sector

If no maintenance can be obtained from the maintenance debtor , children and young people can claim maintenance from the maintenance advance fund (located at the city or district administration; mostly, but not always, at the youth welfare office) as long as they have not yet reached the age of 18. The maximum period of entitlement (completion of the 12th year of life or 72 months of performance) no longer applies as of July 1, 2017 with a new legal regulation.

Otherwise social allowance must be claimed either from the social welfare office or from the local unemployment benefit II / social benefit agency. In both cases, any maintenance claims are transferred to the public fund, which can claim against the maintenance debtor. The entitlement only passes if the person liable for maintenance is able to work and the child does not  live in his household - not even partially, as in the case of mutual care .

Advance maintenance payments are excluded if the caring parent marries or lives in a marriage (with no intention of separation) or enters into a civil partnership . Half-orphans can also receive advance maintenance payments if no pension or no pension has yet been approved.

If the child still receives low maintenance / half-orphan's pension, this will be offset against the advance maintenance payments. In order to be granted advance maintenance payments, the parent with whom the child lives must, for example, provide sufficient assistance in establishing paternity . Incorrect information, for example about paternity, can be reported as fraud .

Criminal breach of maintenance obligation

In contrast to ordinary debts or liabilities , failure to pay child support can be a criminal offense. According to § 170 , anyone who evades a “statutory maintenance obligation, so that the subsistence needs of the person entitled to maintenance is endangered or would be endangered without the help of others” makes himself a criminal offense. The mere failure to pay is not yet a criminal offense, however, there must also be an intent (or at least a contingent intent ) not to pay despite the existing ability to pay. In practice, convictions to imprisonment are seldom, often the proceedings against the payment of maintenance debts are dropped or a short suspended sentence is recognized.

Maintenance by the youth welfare office

If a child, adolescent or young adult is placed fully inpatient by the youth welfare office (day and night), the maintenance of the relatives is suspended. The youth welfare office is now obliged to provide maintenance in accordance with Section 39 (1) SGB VIII.

In this case, the so-called cost contribution obligation occurs instead of maintenance. The amount is regulated in Section 94 of Book VIII of the Social Code, which refers to the Cost Contribution Ordinance (KostenbeitragsV). The obligation to contribute to costs actually only begins with an average monthly net income of € 1,468 per parent and amounts to € 50 per month in the lowest income group. In purely mathematical terms, a contribution to costs is always lower than the regular maintenance if the income is the same.

In any case, however, the child benefit attributable to the child must always be used as a contribution to costs.

criticism

The sharp increase in child maintenance as of January 1, 2010 is due to the increase in the tax exemptions and not to the fact that the income situation improved significantly in the last year. Especially in the lower income groups, the increase is only on paper because the deductible of the person liable for maintenance must be maintained. But this is z. B. is no longer the case with a net income of € 1,600 and two dependent children between the ages of 12 and 17.

In addition, it is to be expected that the Federal Constitutional Court will decide the question of the amount of the minimum deductible this year and possibly arrive at a higher amount than the amount now set in the guidelines of the higher regional courts.

If the creditable income of the person liable for maintenance changes significantly, then according to § 323 ZPO an action can be taken to change the maintenance. A change of at least 10% is deemed to be “significant”, except in the case of cramped economic conditions.

However, the fluctuation range is below 10%, so that the materiality threshold for an amendment action is not reached for existing titles.

The graduation in € 400 increments can therefore lead to a situation where a significant increase or decrease in income does not lead to a different maintenance, especially if the income is lower.

This problem did not occur with the table that was valid until the end of 2007.

statistics

About 2.2 million dependent children under the age of 18 and one million adult dependent children live in Germany. In Germany there are 1.4 million single mothers and 0.1 million single fathers (as of 2007). Every seventh child lives with only one parent.

See also

Web links

Individual evidence

  1. ↑ Minimum Maintenance Ordinance
  2. ↑ Guiding principle of the OLG Schleswig, decision of 23.12.13 - 15 UF 100/13
  3. ↑ Dr. Britta Beate Schön: Maintenance guide - The Düsseldorf table for 2017 and 2018. November 6, 2017, accessed on April 25, 2018 .
  4. ↑ https://anwaltauskunft.de/ratgeber/tipps-urteile/betreuender-elternteil-verdient-deutlich-mehr-kein-kindesunterhalt
  5. ↑ https://www.scheid-online.de/unterhalt/kindesunterhalt/hoeheres-einkommen-des-betreuenden-elternteils/
  6. ↑ Higher Regional Court Brandenburg from January 17, 2006 - 10 UF 91/05 Section 4) b) bb)
  7. ↑ Duration of the maintenance claim. Retrieved August 19, 2018 .
  8. ↑ OLG Hamm, decision of January 8, 2015, Az. 1 WF 296/14.
  9. ^ BGH, judgment of June 29, 2011, Az.XII ZR 127/09.
  10. ↑ Britta Beate Schön: Children aged 18 and over are entitled to this much maintenance. In: finanztip.de. March 13, 2019, accessed June 8, 2019 .
  11. ↑ Recipients of social assistance: Parents have to pay maintenance for an adult child. In: world. February 16, 2012, accessed June 8, 2019 .
  12. ↑ Familienrecht-kosten.de → Chapter: Maintenance → Area: Costs If the amount in dispute is up to € 300, legal fees € 100 each, court fees € 50.
  13. ↑ Andreas Möller: Breach of the maintenance obligation - non-payment of maintenance is punishable. In: Family law compact. September 2004, accessed December 1, 2017 .
  14. ↑ juraforum.de with guiding principles for "OLG-HAMM - file number: 11 UF 25/06, judgment of 11.08.2006" In the case of cramped economic conditions, especially if the subsistence level of 135% of the standard amount is not reached, the child can file an action for amendment Demand an increase in the titled maintenance even if the materiality limit of 10% is not reached. OLG Hamm, judgment of August 11, 2006 , Az. 11 UF 25/06, full text via www.justiz.nrw.de.
  15. ↑ Dieter Zimmermann: Prof. Dr. Dieter Zimmermann, EFH Darmstadt (2008): Maintenance reform and Düsseldorf table 2008, In: BAG-SB Informations 1 2008, pp. 22–26. Kassel: Bundesarbeitsgemeinschaft Schuldnerberatung e. V. . Federal Working Group on Debt Counseling. Archived from the original on December 11, 2015. Info: The archive link was automatically inserted and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice. Retrieved November 2, 2015. @1@ 2Template: Webachiv / IABot / www.bag-sb.de
  16. ↑ Information from the Association of Single Mothers and Fathers, according to Rheinische Post Online (2010): Maintenance: The most important questions about the Düsseldorf table ( Memento of the original from January 18, 2010 in the Internet Archive ) Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice. @1@ 2Template: Webachiv / IABot / www.rp-online.de
  17. ↑ urbia.de (no year): Area "Single" with the subsections 1.) "Single parent - what kind of support am I entitled to?", 2.) "Cope with everyday life as a single parent" and 3.) "Children of single parents" Cologne : G + J Parenting Media GmbH