Distribution of maintenance in the event of divorce

Divorces often harbour a potential for conflict that should not be underestimated. It is not uncommon for disputes to arise in the event of a divorce regarding the custody of the joint children. This is also associated with certain uncertainties regarding the distribution of child maintenance and it is often unclear whether and to what extent maintenance payments have to be made. The Federal Supreme Court has taken these uncertainties into account and, in its decision of 3 February 2021 (BGer 5A_737/2018), specified the form and scope of maintenance payments.

In the case of a divorce where the custody of the child or children is with only one parent and the other parent can only see the children in connection with holiday and visitation rights, the maintenance payments must take the following form: The contribution of the parent entitled to custody is basically in the form of care and upbringing. Thus, the contribution of this parent is fulfilled in kind on the basis of the time spent on said activities (so-called maintenance in kind). The parent who is not entitled to custody therefore does not have much of a role to play in the area of upbringing and care. The non-custodial parent must then assume full monetary maintenance. However, this must be done under the assumption that cash maintenance and maintenance in kind are of equal value and are subject to an equivalent assessment.

The Federal Supreme Court also mentioned a deviation from the above-mentioned principles. This deviation comes into play when the parent entitled to custody has a much higher capacity than the parent not entitled to custody. In such a situation, it can be demanded that the parent with custody also pays for the monetary maintenance. This is to be justified above all in connection with the principle of proportionality and reasonableness. The precedent decision further states that in the event of tight financial circumstances, cash needs must be covered for the time being without third-party care costs. Thus, the Federal Supreme Court also provides clarity regarding tight financial circumstances and the order of coverage.