The BGH on child maintenance in the alternating model
Alternating model and new BGH case law
On the decision of 11 January 2017, XII ZB 565/15
If the separated parents have decided to care for the child in roughly equal shares, they move away from the classic residence model and endeavour to implement the alternating model. By establishing the child's centre of life with both parents, the aim is to prevent the relationship with one parent from breaking down.
In addition to the numerous advantages that this form promises, it also brings with it many problems in its implementation. In this context, it is to be welcomed that the Federal Court of Justice in its ruling of 11 January 20117 - XII 565/15 has addressed the controversial issue of calculating child maintenance within the framework of the alternating model. The fact that the alternating model has not yet found its way into the law has led to a large number of different calculation approaches being created over the course of time, which should have been abolished long ago with a clarifying calculation method in order to create legal certainty for those affected and lawyers.
With its decision, the BGH provides a basis for determining maintenance, also taking into account the issue of offsetting child benefit. At the same time, it clearly rejects the view that an obligation to pay cash maintenance ceases to apply when an alternating model is agreed. The agreement reached by the parents on the alternating model only concerns the exercise of parental care with regard to the care and residence of the child. An additional arrangement regarding maintenance would require a separate agreement, which is usually lacking.
In particular, parents who do not want a flat-rate maintenance solution due to diverging ability to pay, but rather want to pay according to their income, should be pleased to be given a yardstick.
The BGH explains the calculation:
The maintenance requirement must first be determined on the basis of both parents' incomes by adding them together. The BGH emphasises that the need cannot be split into two separate amounts that would have to be calculated for each parent according to their respective sole maintenance obligation. This approach would contradict the idea that the child's maintenance requirement is uniform and is derived from both parents, as the burden of care does not lie predominantly or solely with either parent. The fictitious income attributable to one parent also determines the child's need, as the earning opportunities are part of the parent's position in life, from which the child's position in life is derived (see Senate judgement of 30 July 2008 - XII ZR 126/06 - FamRZ 2008, 2014 para. 32).
Once the standard requirement has been determined, it must be increased by the additional costs incurred as a result of the alternating model. Additional needs include that part of a child's reasonable living expenses that is not covered by the standard rates of the maintenance lines. However, only those additional costs that can actually be attributed to the child's maintenance needs are to be taken into account in child maintenance. A further prerequisite for consideration is that their recognition and reimbursement is reasonable under the given circumstances. The BGH cites additional housing costs, travelling expenses and the double purchase of personal items as examples of such costs. In the specific case, it also recognised after-school care and kindergarten fees as additional costs. However, costs for a dance course or music school are partially covered by the standard requirement and are only recognised in the amount of the excess requirement.
Finally, the parental share is calculated: The adjusted income is to be used for this, from which the so-called appropriate deductible is to be deducted. The remaining amounts are then to be put into proportion, which finally results in the share that the respective parent has to bear of the calculated need. The BGH thus adheres to the customary practice and case law of the Senate (see BGHZ 188.50 - FamRZ 2011, 454, para. 34 ff). The BGH rejects an apportionment based solely on the ratio of net income, as such an apportionment does not reflect the true ability to pay.
The Court has also addressed the controversial issue of offsetting child benefit: it refers to the decision of the Senate of 20 April 2016 - XII ZB 45/15, FamRZ 2016, 1053, according to which § 1612b Para. 1 Sentence 1 No. 1 BGB also applies in the case of the alternating model. Half of the child benefit therefore reduces the cash requirement in accordance with § 1612b Para. 1 Sentence 2 BGB. To clarify, it emphasises once again that the mechanism provided for in § 1612b BGB does not lead to a complete equalisation of child benefit in the case of the alternating model. Even if half of the child benefit is offset against the cash requirement and benefits the parents according to their participation rates, the half of the child benefit attributable to the care initially remains with the parent receiving the child benefit. Due to the basically equivalent care services, a separate compensation is then required, whereby such a family law compensation claim against the parent receiving the child benefit is recognised by the Federal Court of Justice. The claim can be offset against the child maintenance.
Whether the Federal Court of Justice's attempt to compensate for the legislator's failings with regard to the alternation model promises satisfaction for all sides remains to be seen. It is to be hoped that this regulatory approach will help to reduce economically-orientated court proceedings in the future.