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Key points of the reform of maintenance law

  1. General information

The reform of child maintenance is the subject of current discussions. The Federal Ministry's key issues paper of 25 August 2023 states that "German maintenance law urgently needs to be reformed. It no longer fits the reality of life for many separating families." The overarching goal is to strengthen the acceptance of joint parental care after divorce by distributing financial burdens more fairly. This is to be achieved by ensuring that significant shared care by the other parent - who is not the primary carer - leads to a significant reduction in child maintenance in future. Accordingly, the core of the proposal is a new calculation method for so-called asymmetric care.

  1. Childcare models

In future, maintenance law will recognise three different childcare models with different calculation models:

  1. Residence model

The BGB is based on the traditional family model, in which one person is responsible for the (almost) complete care of the child and the other person pays maintenance, taking into account the income situation of both parents. Such a model is to be assumed for the main care of one parent, with 71 % - 100 % of care, and thus joint care of the other parent of up to 29 %. The reform makes no changes to the calculation of maintenance under the residence model.

 

  1. Parity alternation model

This contrasts with the parity alternation model, in which half of the care is provided by one parent, i.e. over 49 % of the care is provided by the other parent. This also has an effect on maintenance in such a way that if half of the care is provided, there is generally no or only a small amount of maintenance to be paid. The previous calculation method also applies in this respect.

 

  1. Asymmetrical care model

The current debate focuses on the so-called asymmetrical alternating model, which is between the above models in terms of the share of shared care. This is the case if one parent shares between 29% and 49% of childcare. Such a share is given, for example, if the parent who is not the main carer looks after the child every second weekend from Friday to Monday and two nights in the week in between, as well as half of the time during the holidays. Up to now, the parent who is not the main carer has had to pay almost all of the maintenance payments under this model. Increased shared care compared to the residential model therefore has little financial benefit for the person who is not the main carer. The reform is intended to change this.

 

III Reform proposal

In the calculation of the asymmetric care model provided for in the reform, it only depends on whether the threshold of over 29% is reached in the case of shared care. If this is the case, no distinction is made between a childcare share of over 29-49 %. Instead, the share of care is taken into account at a flat rate of 1/3 (0.67). The number of overnight stays per year is primarily relevant for determining the level of care. Only if the number of overnight stays is not a suitable criterion in an individual case, for example because the care is only provided during the day, can other criteria such as the organisation and attendance of appointments be used.

According to the ministerial draft reform, the calculation of child maintenance is made up of the following components:

  1. Determining the child's needs using the Düsseldorf table

The respective income of the parents relevant under maintenance law is added together and the child maintenance requirement is determined on the basis of this using the child maintenance table (Düsseldorf table).

 

  1. Modified child needs

The calculated child requirement (step 1) is reduced by 15 % to take account of the fact that the non-carer parent automatically shares part of the child's household requirements, e.g. clothing, transport, education, etc.

 

  1. Determining the parents' share of liability based on their ability to pay

Due to the fact that both parents are liable for child maintenance, liability must be divided between the parents based on their respective ability to pay. To determine the ability to pay, the appropriate deductible, i.e. what the parent needs for a reasonable standard of living, is deducted from the respective income. The appropriate deductible is currently 1,650.00 euros. The parents' incomes must then be compared.

The formula is:

  • Income A (co-caring parent) - 1,650.00 euros (appropriate deductible) / Income A + B - 3,000.00 euros (appropriate deductible for both parents)

= Liability share of the co-carer parent A

 

  1. Modification of the liability share (step 3) with regard to the care shares
  • The modified liability share of the co-caring parent from 3. is added to the flat-rate care share of 1/3 and then divided by 2. In this way, both the joint carer's ability to pay and their share of care are taken into account.
  • The formula is:
  • Liability share according to step 3 + support share of 0.67: 2

= Modified liability portion

 

  1. Determination of the amount owed
  • The modified liability share (step 4) is multiplied by the modified child requirement (step 2) so that a specific amount of money is calculated.

 

  1. Deduction of child benefit
  • Half of the child benefit paid to the main carer is deducted from the amount owed (step 5).

These explanations make it clear that child maintenance law will remain complex even if the draft law is implemented.

Flora Jacobsen, Research Assistant

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