What should child support be paid for?
Calculate child support: All right, right ?!
Child support is a long-running issue in family law. And that's often not because the parents can't agree on the separation, knows familie.de lawyer Milutin Zmijanjac. But above all because of the fact that the demands grow with the children and therefore child support has to be adjusted regularly.
The period during which child support is to be paid is long. The parents don't even have to be particularly unreasonable or stuck in the famous war of the roses. The often scarce commodity “money” is only available to a limited extent, whereas the needs and desires are numerous.
Child support: which paragraph is the basis?
Child maintenance is regulated by law in the provisions of Sections 1601 ff of the German Civil Code (BGB). Child maintenance is a sub-form of relative maintenance.
If you now look at the law, you will be amazed to find that the regulation is formulated in a rather abstract way. Anyone who follows a rule like "the child at this or that age gets y euros if x is given" will be disappointed. The text of the law says succinctly:
"Relatives in a straight line are obliged to provide maintenance for each other."Section 1601 BGB
What is a necessary clarification for us lawyers, which we call the basis for claims and which we need as the legal basis for the maintenance of relatives, will probably not trigger storms of enthusiasm among legal laypeople. The regulation may be necessary, but it doesn't convey many statements, thinks one or the other.
That's true. But that's a good thing. In this way it is possible to find reasonable and practicable solutions for the various interests in changing times without constantly having to change the law. (Mocking spirits claim that a better law does not necessarily have to come at the end of an often lengthy legislative process. But that is another topic ...)
The regulations following § 1601 BGB contain further regulations that define the manner, amount and coverage of maintenance. Anyone who is interested can read the individual regulations there in detail.
Maintenance from 18? That is how long children receive maintenance
Minors and children of legal age who live in the same household as one of their parents and have not yet completed general schooling are entitled to receive child support.
As a rule, children of legal age have to take care of themselves. However, only if they have completed their first professional training. But be careful: The maintenance obligation continues if the training is followed by a degree that is related to the training. Classic example: the bank clerk who starts studying business administration shortly after completing his training.
The child does not have to start training or studies immediately after graduating from school. Interruptions after school that serve as an orientation - such as a voluntary social year - do not inhibit the maintenance obligation.
It looks different when the offspring simply takes a year off and wants to enjoy life. He can of course do that, but he has to take care of his own living. At least in theory ...
But: The child receives support again when the training begins.
Calculating child support correctly: not that easy at all!
The exciting question is how the child support is determined? There is basically the same scheme for every type of maintenance, with three central terms:
1. The need: What does the child need?
At the beginning there is the question: What does the child need? Apart from a minimum requirement, the need is also determined according to the circumstances of the parents. The needs of the child must be differentiated between basic needs, additional needs and special needs.
If the child support is to be calculated, the famous Düsseldorf table comes into play. Although this is not a law, it was once developed by the judges of the Düsseldorf Higher Regional Court. They thought so much about it and developed a sensible work that this table is now used throughout Germany to determine child support. However, the amounts in the Düsseldorf table only include the elementary requirement. That means: there may be additional requirements!
The Düsseldorf table shows a payment amount for different income levels and age groups. Please note that the table shows the amounts paid by the parent who is responsible for cash maintenance. The parent with whom the child is responsible is liable for cash maintenance Not lives. The parent with whom the offspring lives is also responsible for maintenance, but fulfills his / her duty by providing accommodation, food, etc. (maintenance in kind). Anyone who has children knows what that means ...
Exceptions confirm the rule that I only wanted to mention for the sake of completeness: If the parent who is responsible for cash maintenance earns significantly more than the other parent (approx. Three times as much), he still has to pay.
The Düsseldorf table assumes that the child lives with one parent. This is no longer always the case today (keyword change model), but for today we are assuming the "normal case". The changeover model and its effects are still under development and some are controversial. That is worth a separate contribution.
What about child support with child support?
Please note the following with regard to the payment amounts: Child benefit is not yet taken into account in the first surcharge. Since child benefit is a benefit to the parents, everyone is entitled to half of it. Child benefit is paid to one parent, usually the one with whom the child lives. In order to take into account the entitlement of the other parent, half the child benefit is deducted from the amount paid.
In practice, this often leads to questions from those affected, as people assume that child benefit will be paid to the child. That is not true, the benefit should go to the parents.
2. Need: Do children already have their own income?
Once the need has been determined, it is checked to what extent those entitled can cover this with their own income. If he cannot do what is the rule with underage children, he is needy in this respect. Minors are treated the same as “privileged adults”. These are children of legal age who live in the same household as one of their parents and have not yet completed general schooling.
Simply put, the need represents the difference between the determined need and your own income. B. Training allowance you have to take this into account in principle, but not in full. After deducting taxes and duties and a flat rate for work-related expenses, half of the remaining salary is offset.
Child support has less to do with the age of the child and more to do with the situation in life. Child support from the age of 18 is therefore quite common.
The Düsseldorf table for 2021 can be found at the Düsseldorf Higher Regional Court.
3. Efficiency: What can parents afford?
The payer does not have to give the “last shirt”. In order to avoid injustices, the table also shows the respective demand control amount. This is the amount that should remain with the maintenance debtor. If it falls below this after taking into account all obligations, the maintenance debtor pays the amount, the next lower level, at which the needs control amount is not fallen below.
The need control amount must not be confused with the necessary deductible for child maintenance. This is the absolute minimum that must remain with the obligor. If the minimum maintenance is not reached, taking into account the needs control amount, one is stricter. Then the network for the maintenance debtor is only stretched with the necessary deductible. This is currently at € 1080 adjusted net income per month.
What does "Adjusted Net Income" mean?
But what is that anyway? That is the income after taxes and duties. An employment bonus and a flat rate for work-related expenses are also deducted. If there are debts, the loan installments are also deducted. The blanket soon becomes too short when everyone wants to slip under it.
If the person liable for maintenance remains below the necessary deductible after all these deductions, he may not have to pay maintenance and there is a so-called deficiency case. In the case of underage children, however, there is an increased maintenance obligation.
This means that the person liable for maintenance may have to take on another job in order to be able to pay at least the minimum maintenance. In addition, it is also checked whether eligible loan installments cannot be adjusted. Under certain circumstances, it can be the case that in the event of a deficiency, their justification is questioned and yet a somewhat more rigorous check is made to see whether they were really necessary.
The minimum maintenance varies depending on the age and can be found in the Düsseldorf table. As the primary dependent, the children also take precedence over the dependent parent and the existing income is initially distributed among the children.
The motto is clear: children first!
Child is child - everyone is treated equally
Clients often ask me what the effect is if the person liable for maintenance has more children. In principle, this is quite simple. All children are treated equally, regardless of whether they are married or not. Specifically, this means that every child is classified according to age and income according to the Düsseldorf table, including those from a new relationship.
In terms of child maintenance and the Düsseldorf table, the following should also be noted: The Düsseldorf table is based on two dependent persons (this may also include the caring parent). If there are more mouths to be fed, this is regulated by applying the correspondingly lower amounts in the table.
A reading tip for you: Child maintenance: principle of equivalence, calculation, minimum requirements, table maintenance, deductible, fictitious income * (via Amazon) #
Is it possible to deduct the maintenance paid?
Child support payers can in principle deduct child support paid (and also the child support paid to the caring parent) if it is actually paid. This is up to a changing allowance, most recently 9,000 euros. Added to this are any contributions to health and long-term care insurance.
It should be noted, however, that you can only deduct child support if you are not receiving child benefit or if you cannot claim the child allowance granted in the tax bracket.
Where can you have child support calculated and where should you do it?
The child support can be calculated in different places. I will first mention a few possibilities and then I will say why you should have it done by a specialized lawyer, i.e. the lawyer for family law. This statement is as simple as it is true and does not justify my being a lawyer. I'll explain this in a moment, but first the most common options:
- Youth Welfare Office
- Calculate child support using a calculator on the Internet
Now I come to the individual options and where I would go:
There should be no wrong impression here. No lawyer bases his dreams of financial independence and luxury goods on child support mandates. These are used financially to cover the costs and do not count among the “cash cows”, especially not the mandates for changing child support. I'm not complaining here. Don't get me wrong! I'm only mentioning this here so that I don't get the impression that I want to lead readers to law firms so that the cash register will ring.
Can the youth welfare office calculate the maintenance payment for the child?
The youth welfare office employees are trained and mostly experienced people, but usually not lawyers. Now you cannot expect the youth welfare office to work through legal problems like a lawyer. You don't ask a nurse to perform an operation. This may be a bit harsh, but it's true.
There are some pitfalls in calculating child support that can go really tough. This is made even more complicated by the fact that the courts do not decide the same everywhere and, to make matters worse, it is not uncommon for the same higher regional court to have different views in different chambers. I have not even spoken of the Federal Court of Justice, which definitely changes its jurisdiction in family law. I know how that keeps you on your toes and how many hours a year I spend on training courses.
A little example please:
In 2018 the Federal Court of Justice ruled that the care costs incurred for the child while the parent paying cash maintenance is working do not represent additional needs of the child (need), but represent work-related expenses of the parent. It was different before. What does that mean in concrete terms? Before this decision, the cost of childcare had to be borne by the person liable for maintenance, now these are only deducted from the working parent's earnings when calculating maintenance, which has less or no effect.
If you commit yourself on the basis of a calculation made by the youth welfare office, you may have bought yourself an irreparable buck: Possibly, these costs may still be incurred as an additional requirement. The maintenance debtor is then bound by agreement or enforceable maintenance deed in an extra-mandatory manner (legally for "no reason" or "voluntarily").
For those who find this uncomfortable, I have an encore: if that is also wrongly phrased, you can't get rid of it either. Now imagine what happens when the child is quite young. That has a long lasting effect.
Compulsory lawyer in family law proceedings
There are good reasons why the legislature has stipulated a lawyer requirement for court family law proceedings for years. You ride in really quickly and permanently.
For the example above I would like to emphasize that I am not subordinate to the youth welfare offices. It will take some time for such a change in the law to get around. The BGH believes that a lawyer must be aware of such a decision one month after publication. Now everyone in the legal industry knows that this is quite sporty. In my opinion, this cannot be guaranteed for an authority.
For the reasons mentioned, it should be clear why maintenance calculators from the Internet and providers who “can” calculate everything for little or no money should be treated with caution. The calculation may be correct, just whether it is based on the right principles ...
Do I have to sue for maintenance?
In my professional practice, it is often the case that there is no dispute about maintenance. But I advise the maintenance creditor, like all lawyers, to have an enforceable deed for maintenance drawn up at the youth welfare office. Why? Because it makes sense. It is seldom so easy and cheap to get an enforceable document. Everyone knows the saying: "Being right and being right are two different pairs of boots."
When does it go to court?
To enforce a claim you need an enforceable "title". The best known form of a title is a court judgment.
However, court proceedings have already taken a while, even an interim order takes a few weeks and there is still time to go before it is enforceable.
What happens if no maintenance payments are made to the child?
The law now provides that a declaration by the person liable for maintenance can be submitted to the youth welfare office, which is enforceable. This means that in the event of non-payment, it goes straight to foreclosure (very popular: garnishment of salaries) without losing a lot of time.
The courts grant the maintenance creditor, the child, the right to request the submission of such a document at any time. Attention: this also applies if the maintenance is paid regularly and without complaint. Anyone who invokes this and does not produce the certificate will not get a foot on the ground in court and the costs will be raised.
The courts and the state are not kidding. It's about children, the state plays it safe. The reasons are probably not purely altruistic. Unromantic spirits see the reason for this consistent support of maintenance claims also in the fact that the state is only motivated within very narrow limits to step in for defaulting parents and later chase after the money.
First of all, the needy is given effective means at hand without the state getting along. If that doesn't work, the state has to step in early from its point of view. That is also understandable.
From a legal perspective: How does the child get his or her rights?
The following procedure can therefore be recommended for the process of child maintenance:
- Calculation of alimony at the lawyer
- Titling of the claim (youth welfare office document / judgment) by a lawyer
- If the fundamentals change, adjustment (also by a lawyer)
When it comes to child support, those involved often discuss not only on the (often already) difficult factual level, but on the level of hurt feelings. In doing so, they tend to lose sight of who and what it is actually about: the respective child and their needs.
Conclusion of our familie.de lawyer Milutin Zmijanjac
We lawyers are quite unemotional here. We know that those involved have more costs even with the same income. Two apartments, two households, often another family - that has to be financed first.
There are of course families where there is more than enough money. But that doesn’t mean that there are less arguments there. On the contrary - the issues at stake are just different and sometimes even more bizarre. But I'll write an extra article about this. I would digress a lot here today ...
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