Advance of litigation costs
Under the term litigation advance payment is a maintenance claim according to Section 1360a (4) of the German Civil Code ( BGB ) indicates that a dependent spouse is entitled to an advance payment of legal costs against his or her spouse, insofar as personal matters are concerned and this is fair. A corresponding claim for defense in criminal proceedings is also included. The entitlement continues to exist in the event of separation or divorce.
Eligibility requirements
Personal issue
There is no definitive definition of personal matters , so that certain classifications can only be derived from case law. Examples of personal matters are the protection of the spatial-objective area of marriage, the protection of personality, family law status matters such as B. the clarification of parentage issues , driving license withdrawal or expulsion under the law of foreigners . A process about the existence of an employment relationship (see dismissal protection suit) is also regarded as a personal matter, but usually not a suit for payment of outstanding wages. As a rule, no personal matters are those that are solely or predominantly of a property law nature.
equity
Equity presupposes the neediness of the claimant and the ability of the person liable for maintenance. The person liable for maintenance is not able to work if the person liable for maintenance would be entitled to legal aid himself if he would conduct the process in his own name.
Furthermore, the legal prosecution sought must not be willful and must, in the prevailing opinion, have a chance of success. In this respect, the criteria are similar to the requirements for legal aid.
Scope of litigation costs
Included in the claim to the advance payment of legal costs are the fees that can be claimed by the court and, if necessary, by your own lawyer before they begin their work. Any costs incurred by the other party are not included.
Relationship with legal aid
An existing and enforceable claim to an advance on legal costs against the dependent spouse has priority over the approval of legal aid or legal aid . Such a claim usually eliminates the economic requirements for the approval of legal aid.
Special features for international references
If the person who wants to conduct a lawsuit lives abroad, then according to of the regulations of international private law, possibly not German maintenance law, with the result that there is then no entitlement to an advance payment of legal costs according to § 1360a Paragraph 4 BGB.
Advance of litigation costs from children
According to unanimous jurisprudence, unmarried underage children are entitled to an advance on legal costs from their parents, just like spouses in analogous application of the relevant regulations. For a long time it was controversial whether adult children are also entitled to an advance on legal costs against their parents. In 2005, the Federal Court of Justice decided in a landmark ruling that even children of legal age must be referred to the claim of advances for legal costs from their parents if they have not yet achieved a position in life due to the continuation of their education.
Others
The advance on legal costs as a civil maintenance claim should not be confused with the advance on court costs . The latter is a legal right of the administration of justice to the payment of the expected court costs by the person who calls the court.
Individual evidence
- ↑ Frankfurt Higher Regional Court , decision of November 18, 2004 - 19 W 33/04
- ↑ BFH, decision of January 31, 2012, AZ IS 16/11
- ↑ Higher Administrative Court Berlin-Brandenburg, decision v. October 19, 2009 - OVG 12 M 75/09
- ^ BGH, March 23, 2005, AZ XII ZB 13/05
