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No pro rata child support obligation in a 45% to 55% care arrangement
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The Berlin Higher Regional Court (Kammergericht) had to address the question of whether, where both parents’ shares of care for a child are nearly equal, a pro rata apportionment of child support obligations is possible. The starting point of the proceedings was a care arrangement in which one parent cared for the child 45% of the time and the other 55% of the time.
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Key decision of the Berlin Higher Regional Court (Kammergericht)
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The court concluded that, under these circumstances, there is no pro rata maintenance obligation under which both parents are proportionally required to provide cash child support. The Kammergericht pointed to the decisive importance of actual caregiving and the fundamental statutory guidelines on child support.
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Distinction from the so-called alternating residence model
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What is essential is the distinction from the so-called true alternating residence model (Wechselmodell), i.e., a comparatively equivalent care of the child by both parents. According to established case law and the prevailing view in the legal literature, where care is approximately half-and-half, a cash child support obligation for both parents is conceivable. If the share of care, however, as here, is only about 45%, this legal consequence does not apply.
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Rechtliche Grundlage und Begründung
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In accordance with the statutory provisions, the parent who does not predominantly care for the child remains obligated to pay cash child support. A pro rata distribution of the cash child support obligation is only possible if both parents in fact care for the child in equal parts and the requirements of the true alternating residence model are fully met. A slightly different weighting, as in the specific case, does not, in the court’s view, lead to a joint cash child support obligation.
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Practical consequences
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The Kammergericht’s decision makes clear that merely exceeding a 40% threshold in the extent of care is not sufficient to establish the alternating residence model and thus a proportional maintenance obligation for both parents. Rather, it depends on an almost parity-based distribution of care times. As long as one parent provides clearly predominant care, the classic understanding of the maintenance obligation remains applicable.
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Note on ongoing proceedings and source of information
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It should be noted that court decisions are always dependent on the individual case. This article is based on the published judgment of the Berlin Higher Regional Court (Kammergericht) of 15/10/2020, case no. 13 UF 89/16 (source: https://urteile.news/KG-Berlin_13-UF-8916_Keine-quotale-Unterhaltspflicht-fuer-beide-Elternteile-bei-Betreuungsverhaeltnis-von-45-Prozent-zu-55-Prozent~N29301).
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Legal assessment
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For family law issues in connection with maintenance obligations and care arrangements, it is advisable to subject both current case law and the individual facts of the case to a well-founded review. MTR Legal is happy to assist you with further legal matters relating to family law. Further information and contact options can be found under legal advice in family law.
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