Covid-19 – family law – alimony

Corona is not only worried about health but also financially. Self-employed, who have to close their store from one day to the next and do not know whether the infection protection act provides compensation for them; employees who are sent to short-time work and receive only 67% pay – there is spontaneous existential angst in many families. You get together at home and say to each other "we can do it". But what if the family does not move together because they live separately? And what if one part of the family depends on the other economically – i.E., draws alimony?

First question: is there a child support order??

"Titled" means that the person liable for maintenance has voluntarily signed at the youth welfare office or notary how much maintenance he owes, or that at the end of court proceedings, by court order or agreement, there was a maintenance amount of. If there is such a title, non-payment is immediately threatened with compulsory enforcement z.B. By garnishment of accounts. In addition, non-payment causes the arrears to accumulate into debts.

Second question: consequently, what are the right measures to take??

If you pay without a title – i.E. Voluntarily, so to speak – you can reduce the amount unilaterally. The creditor should be informed of this beforehand, as fairness and clarity are imperative. In many cases, the creditor can apply for public benefits to fill the gap.

With title, the situation becomes more complex:
from the point of view of the debtor who wants to pay less:
it is advisable to inform the person entitled to maintenance now that one has considerably less income and can only pay a smaller precisely specified amount. The maintenance recipient must be informed that a corresponding modification of the maintenance obligation is requested and – if a title already exists – that he or she should declare that he or she will waive enforcement with regard to the amount in excess of this.
Other possibilities for reaching an agreement with the creditor are a reduction of the monthly maintenance amount, a deferral or payment in installments.

Caution: the parties to a court settlement can change it out of court as a substantive contract, but not as an enforcement title. Also a youth welfare office certificate can z.B. Cannot be modified by a later jugendamt deed. If both sides agree on the content, it can be agreed out of court that the creditor waives the rights from the previous title and a new title with different content is established.

The creditor can object that the debtor should make use of it in case of temporary payment bottlenecks, payments z.B. To stop payments for electricity, gas, insurance, telephone or rent, which should not result in a termination of the landlord's agreement for at least the next three months, provided that the payment bottleneck is exclusively due to the corona crisis.

If both sides agree in this way, there is no need for costly court proceedings to change the agreement, which may have to be carried out again – this time by the person entitled to maintenance – after the economic situation has improved.

If the creditor does not accept this proposal, the safest course of action is to immediately initiate family court modification proceedings, which require the involvement of a lawyer, in particular to avoid unpleasant enforcement proceedings. Because in the procedure can be requested to stop the execution from the existing title immediately in appropriate height.

On the other hand, the transfer of the presumed unjustified maintenance "under reserve" bears the risk of not being able to reclaim it, since the maintenance creditor can plead deprivation if he actually uses the amount.

A set-off of current maintenance with additional payments in the past is also not permissible, since there is a prohibition of set-off for current maintenance, § 394 BGB i. V. M § 850b ZPO. It is possible to offer the difference as an interest-free loan and under the condition that one waives a claim for repayment, insofar as the maintenance subsequently turns out to be justified in terms of amount. In good faith, the maintenance creditor is generally obligated to accept such a loan offer.

The disadvantage of this solution is that an existing title cannot be amended in this way and, in case of doubt, it is unclear how much maintenance is actually owed.

A lawyer is required for this procedure. To the extent that the court, possibly due to the emergency operation going on there, cannot react and decide quickly, you would be obligated to continue paying the original alimony amount until then so as not to risk foreclosure.

The advantage of this, however, is that the court will then determine the actual amount of maintenance to be paid and that the maintenance creditor will be subject to increased liability from the time of the pendency of the case due to § 241 famfg. D. H., he/she can no longer plead depletion of earnings. For this case one can pay the maintenance "under reservation" as a precaution.

Under the law of enrichment, the debtor cannot reclaim overpayments if they were made in the knowledge of a non-debt. The payment under reservation prevents that the maintenance claim is considered as recognized, although one would like to defend oneself against it.

In addition, it must also be taken into account that any income of the spouse entitled to maintenance may also develop negatively, which must be taken into account when recalculating the maintenance payments. So whether you actually have to pay less alimony in the end depends on the concrete calculation.

If you are in an ongoing divorce proceeding and you are liable to equalization within the framework of the gain equalization proceeding, a maintenance grant on the basis of a loan can be set as a claim on the side of the party liable to pay maintenance and as a liability on the side of the party entitled to maintenance. In this way, the alimony overpaid as a loan is taken into account in the context of property equalization.

The issue is easier to solve from the point of view of the person entitled to maintenance, who needs more maintenance due to loss of income:

In this case, an out-of-court notice of default by the debtor is sufficient without any significant cost risk.

Child support

With the child support the income groups provide ranges of 400 € net. Who goes into short-time work, receives only 67% of its net income, however, also occupation-conditioned expenditures such as travel costs are omitted. If necessary. Therefore, short-time work does not lead to the application of a different income group at all.

With the child support for minor children there is the so-called "moratorium". Minimum maintenance, which is not called so without reason: there are plenty of considerations why normally every father / mother can raise so much money that he / she can afford the minimum maintenance, be it z.B. Due to side jobs. One speaks of "increased obligation to work". Now we do not have "normal times. Nevertheless, it remains: who wants to pay less than minimum maintenance, must present something about why he completely without fault not even 1.300 € (deductible plus average child support depending on the age of the child) can earn. To be examined would be z.B., whether spontaneous employment as a harvest helper or as a warehouse clerk in the grocery trade is possible and reasonable, since there is a shortage of labor in these industries due to corona's current situation.

In the case of alimony payable for separated or divorced spouses, the whole thing looks somewhat different. On the one hand, there is not the "increased" obligation to earn as with the minor maintenance, on the other hand, there is no table with 400 € income margin, but each acquisition euro makes itself felt with 43 cents (3/7 method) or 45 cents (southern germany). In addition, the creditor may also be affected by corona losses and thus have higher entitlement than before. Loss of income due to the care of joint children, who were otherwise looked after by others, but whose facilities are closed, is of particular importance.

Moratorium:

If the person obliged to pay alimony is affected by a so called. "Moratorium" can make use of, i.E. May in turn defer payments on liabilities such as rent, this under certain circumstances preserves his ability to pay maintenance.

If the alimony has been decided by a judge, for example by a decision, in the case of modification one has to deal with the "legal force" of the decision – it is more difficult to break through this than the modification of a settlement. Here one proceeds after § 238 famfg. The "equity theory" and the "updating theory" are advocated.

However, § 239 famfg applies if an agreement (settlement) is to be amended. Here it depends primarily on the agreement made and its apparent basis.

For the amendment of court decisions (orders or judgments if the decisions are older), the rule is that there must be significant changes in the factual or legal circumstances on which the decision is based and that these changes can also be expected for the future in cases of an acute drop in income.

For the modification of settlements and deeds, on the other hand, the wording of the law states that a modification must be justified. In this case it depends on which bases the courts take when making a decision or a judgment. The parties had assumed at the time of the notarization or at the time of the conclusion of the settlement, and how this was to be done in the case of settlements or. Documents as a so-called business basis is documented. These bases include, of course, the income situation of the parties involved.

Particularly in the case of a drop in the income of the debtor, short-time work or the occurrence of unemployment, however, the case law here is based on the fact that this is not only temporary (cf. OLG brandenburg v. 12.01.1995 – 9 UF 90/94; OLG dresden v. 25.11.1997 – 10 WF 455/97; BGH v. 05.02.2003 – XII ZR 29/00). This is the real problem.

Materiality threshold

Not every change entitles to modification – on the other hand, case law has developed the concept of the "materiality threshold. This applies in any case to maintenance decisions – not necessarily to settlements and deeds – is not rigid, however. There is a "10 percent" threshold in the literature, which can be taken as a point of reference (it is not the change in income that is measured, but the change in the amount of maintenance). However, the BGH has not made the request for modification dependent on compliance with the 10% threshold in any of its decisions – it only described a deviation of less than 3% as immaterial in 1994.
Particularly if the economic circumstances of the parties are tight, materiality can be assumed to be significantly below this threshold.

Sustainability

More relevant for the acute topic "corona" is the question of duration. In order to be able to modify a maintenance order due to changed circumstances, the substantial (s.O.) change must therefore be sustainable. Assuming that after 3 months it is known that the income will continue to be paid as before and then perhaps even paid overtime will have to be worked in order to reduce the work that has been left undone – would there be no possibility of amending the maintenance order.

However, if the reduction in income is permanent and cannot be alleviated by other measures, an application for modification is likely to be successful.

The currently existing legal uncertainty is problematic. Currently, only forecasts can be made; no one knows exactly how the individual will be economically positioned after the corona crisis and how long the pandemic restrictions of the working world will prevail.

Necessary correction of the prognosis

A "month-by-month" consideration such as z.B. In the case of public benefits according to the social security codes, this is usually not the case in family law. Maintenance is always predicted for the future on the basis of past findings; this is not the case in social law.

So the question is, if and how this forecast has to be adjusted to the new circumstances.
When establishing the title, the judge had assumed the task of taking into account the development of the circumstances in addition to the present and the reliably expected circumstances in his decision on the claim in a forward-looking manner.
Conceivable deviations of the reality from this prognosis and thus not only short-term injustices are accepted by the law, as can be seen e.G. In the following.B. At § 1605 BGB sees, after which usually two years must be waited, until again an adjustment to increased income of the maintenance obligor can take place.
After all, forecasts are usually based on an "annual income", from the twelfth of which the performance is then calculated. The forecast is therefore considered to be correct and remains a fully valid enforcement order, even if the circumstances develop differently – until a formal amendment is requested.
But who knows today whether what awaits us will be short-, medium- or even long-term losses and what his annual income will be in 2020? It is also not entirely improbable that farms will be able to withdraw from the "social-distancing" or. "Flattenthecurve" phase no longer recover at all.

Overpayment: what has been paid under reserve is not always returned

If you continue to pay alimony that you only know in a few months that you could not have afforded in the first place because the loss of income is permanent and substantial, you will have a problem: as a rule, you cannot reclaim overpaid alimony. And not even if it only turns out afterwards that the maintenance payment was too high or that there was no maintenance claim at all. The law assumes that the maintenance is intended for consumption – i.E. Consumed in the best sense of the word – so that the recipient of the maintenance can claim "depletion".
By the way, the addition "payment with reservation" does not help against this – at least not as long as no judicial modification proceedings are running at the same time.

Ongoing maintenance proceedings

How individual judges react to the situation can be read here.
This was a case in which the maintenance order should have been pronounced in april – this was postponed.

Conclusion:

Anyone who does not somehow come to an agreement with the child support creditor must recognize the right moment to assume a substantial and sustained reduction in income, and then immediately (represented by an attorney!) proceed according to § 241 famfg, i.E. Initiate modification proceedings. With the pendency of this application, the further payments can be declared as a loan or "under reserve" and can be reclaimed later – however, not for periods prior to the application for modification. However, "maintenance with reservation" paid during the pendency of the modification proceedings must then be observed by the maintenance creditor. Under certain circumstances, he or she cannot plead deprivation of support.

Child support due to closure of daycare center and school

The right to childcare maintenance according to § 1570 of the civil code (divorced persons) or § 1615 l of the civil code (unmarried persons) is justified exclusively by the fact that gainful employment cannot be expected due to the care of children. Here, the corona-related closure of outside childcare facilities may give rise to maintenance situations that did not previously exist because full employment was possible.

Parental maintenance / child support for adult children in need of care:
need for action if one cannot pay parental alimony/child support for adult children in need of care?

Parental maintenance will be "titled" in the fewest cases. This would only be the case if there had been legal proceedings at the family court.

For most payers, the process will have been that there was correspondence with the welfare agency. In the last letter of this exchange there will have been a request for payment, to which the person obliged to pay maintenance then "voluntarily" complied. This is an important consideration for the legal situation, because it means that if payments are unilaterally stopped, there is no threat of enforcement and no automatic (unjustified) arrears accrue. Regardless of whether the cessation of payments later turns out to be justified, every person liable to pay alimony has the spontaneous opportunity to bridge his short-term liquidity bottlenecks at the expense of the state.

Adjustment of the payment completely legally?

Yes. This is in line with the law, which at least contains a presumption that the dependent child has less than 100.000 € earned. In the maintenance right it concerns thereby always a prognosis of the future not around incomes of the past.

In the case of parental maintenance or. The maintenance for adult children in need of care there is since 01.01.2020 serious new regulations. Due to the relief of dependants act, one is only obliged to pay maintenance if the annual gross income exceeds 100.Exceeds EUR 000. The income of any children-in-law or stepparents is not taken into account. This leads to the fact that a large part of the population is no longer liable to pay maintenance to parents or his dependent adult children.

Therefore, if the 2019 income tax statement or the last tax assessment still exceeds 100.000 € of income, but at the end of 2020 it is determined that this target was not reached in 2020, then as of january 2020 no maintenance was actually owed.

According to the relatives relief act, it is always the case that you only know at the end of the year whether you should have paid parental maintenance or not. Maintenance law is prognosis of the future based on the circumstances of the past. However, if the future deviates sustainably and significantly from the forecast, there is always a right of modification.

If a person liable to pay maintenance in this context is likely to suffer a significant loss of income as a result of the current corona pandemic, the social welfare agencies, which usually claim maintenance by way of recourse, must be informed immediately, preferably in writing, and a modification of the maintenance must be requested.

Whereas in other maintenance relationships (child maintenance and spousal maintenance) one has to think about the interpretation of the terms "sustainable" and "substantial", the relatives relief act makes things a little easier. 100.000 € per year is the clear cut! If you did not achieve the in the year of the obligation to pay alimony, you were retrospectively not obliged to pay alimony. There is also no monthly calculation for instance from a twelfth of 100.000 euros provided.
There is no problem with recovery against the social welfare agency. Although in principle too much paid alimony is not recovery was, because the maintenance beneficiary, who receives the alimony as a monthly pension, this was allowed to consume in confidence and is thus "entreichert" – this entreicherungseinwand of § 818 para. 3 BGB, however, the state cannot claim for itself.

If the amount of maintenance is reduced accordingly or if the obligation to pay maintenance ceases to exist, the question then arises as to whether improved economic circumstances in the future are not to be communicated again of their own accord. Since the change in the law is still new, there are no final opinions here yet. The authority per se can again request information, if it is assumed that again an income above 100.000 EUR gross per year is achieved. However, the relative himself is not obliged to notify the authority of each property improvement.

What applies if there was a court decision on parental maintenance after all?

Caution is advised if the social welfare agency has obtained a court order or settlement in the past. In these cases, the authority has an enforceable title, which it can use immediately. Simply withholding money is a bad idea in this case, because of the threat of compulsory enforcement. In this case, it is more advisable to initiate modification proceedings before the family court.

Beforehand, the authority can and should be informed about the concrete loss of income (short-time work, official closure, childcare bottlenecks) and that you would like to suspend payments until the future income situation has been clarified. You should ask to waive the titled claim for the relevant months or. Be requested to refrain from any enforcement action under the existing title.

If the authority does not agree with this, it remains with a modification procedure before the family court, in which in addition to the modification of the maintenance to be paid, if necessary to zero (depending on the change of the financial circumstances), it is requested to stop the execution. If necessary, the surrender of the maintenance title is to be demanded. The arbitrary cessation of alimony payments can otherwise lead to unsightly garnishments. On the basis the in this country filled cash of the social welfare offices might be to be counted however on understanding.

If, on the other hand, family court proceedings are necessary, a lawyer is required, since maintenance proceedings within the meaning of section 231 para. 1 famfg to determine so-called family disputes within the meaning of § 112 no. 1 famfg acts.

How to determine the 100 € limit?

  • Only the income of the respective child counts, not that of the child-in-law
  • It only depends on the income in terms of tax law (no housing benefit, no tax-exempt income)
  • From the gross income, childcare costs are deducted according to § 10 para. 1 no. 5 estg and income-related expenses deducted according to § 9 estg
  • In the case of income from renting and leasing, the determination under tax law, including depreciation, is different from the determination under maintenance law, which has no meaning there
  • The amount of assets does not matter in determining this limit

This regulation, which has existed for some time for basic security, was moved from the fourth chapter to the eleventh chapter of SGB XII, which applies to all benefits of SGB XII, and was adapted accordingly. Included are therefore, among other things, the benefits of assistance for care, assistance for subsistence and, through parallel regulations outside the SGB XII, the reformed integration assistance from 2020 in part 2 SGB.