Simplified Maintenance Determination Procedure and the Shared Custody Model: Legal Requirements and Limitations
The procedure for the simplified determination of child maintenance generally offers the possibility to have maintenance claims titled efficiently and without lengthy legal proceedings. However, changes in family life, especially the establishment of a true shared custody model, raise divergent maintenance law issues that can significantly restrict the scope of application of the simplified procedure. The decision of the Brandenburg Higher Regional Court (Case No.: 9 WF 160/17) illustrates the relevant criteria and practical implications at the intersection of procedural law and substantive child welfare interests.
Requirements for the Simplified Maintenance Determination Procedure
The simplified procedure pursuant to §§ 249 et seq. FamFG primarily serves the prompt and binding determination of child maintenance for minor children and adult children up to the age of 21, provided they live in the household of one parent and are in general school education. The requirement is the lack of agreement between the applicant and respondent, as well as the absence of otherwise titled or regulated maintenance claims. The flat-rate determination is based on the amounts of the Düsseldorf Table.
It is noticeable, however, that the legislative model of § 249 para. 1 FamFG assumes a care concept in which there is a clear allocation of childcare and cash maintenance (‘residence model’). Only the non-custodial parent is regularly required to make maintenance payments.
Shared Custody Model: Definition and Legal Structuring
In the so-called ‘true shared custody model,’ the child is cared for by both parents almost equally. The Federal Court of Justice clarified that only from a near parity of care services can a true shared custody model be spoken of. Unlike the classic residence model, the position regarding cash maintenance of both parents must be newly evaluated. Both parents assume care duties, but cash maintenance can, depending on income situations, also be owed proportionally by each. The logic of maintenance calculation as well as the determination of need based on the requirements derived from the combined income of both parents thus no longer corresponds to the simplified determination system.
Exclusion of the Simplified Procedure in the Shared Custody Model
The Brandenburg Higher Regional Court explicitly dealt with this constellation. In the underlying facts, an application for the determination of child maintenance according to §§ 249 et seq. FamFG was made despite the existence of a true shared custody model. The court clarified that the simplified procedure is reserved for the residence model and cannot be applied in the case of a true shared custody model on principle.
This is justified, among other things, by the complexity of the maintenance calculation, which requires individual need determination, taking into account the respective care services of both parents as well as the mutual offset of own maintenance obligations. This differentiated analysis cannot be implemented within the framework of the schematic, flat-rate simplified procedure. Additionally, the procedure cannot bring about a conclusive clarification of the entitlement prerequisites and mutual maintenance positions. The applicant runs the risk that a maintenance title issued in the simplified procedure does not correspond to the substantive legal situation and is contestable afterward.
Impact of the Higher Regional Court’s Decision on Practice and Legal Certainty
The consequence of the decision is that when a true shared custody model actually exists, the determination of child maintenance must mandatorily be carried out in contentious proceedings according to the general rules of the FamFG. For practice, this means that companies, investors, or affluent private individuals involved in family law disputes must anticipate increased complexity and the necessity of comprehensive maintenance calculations. A general, quickly attainable titling of maintenance claims is legally excluded in the shared custody model; instead, a detailed examination and processing of the individual family and income situation is required.
It is also important to emphasize that differently structured care models in the context of separation or divorce regularly have significant consequences not only for maintenance determination but also for tax and corporate law issues, such as when supply structures or corporate law participations need to be taken into account.
The described legal situation highlights how significantly the design of childcare affects the maintenance procedure and the importance that an appropriate differentiation has for the judicial titling of maintenance claims. For companies, investors, and affluent private individuals affected by family law issues in connection with maintenance and childcare, comprehensive legal analysis can have a considerable influence on the enforcement or defense of claims. For further questions on the topic or specific concerns, you can find individual support at MTR Legal in the field ofFamily Law Legal Advice.
