Reduction of maintenance

What determines the decision of the courts

It cannot be excluded that the reasonable and kind behaviour of the parents during this exceptional situation may be taken into account by the custody courts deciding on minors’ cases. Likewise, the courts might in the future take into account the efforts of one of the parents to use the state of emergency to their advantage.

When an agreement is not possible and finances are dwindling? What to do then? High inflation is in no way a reason to change the amount of child support ordered. On the contrary, the situation becomes more difficult for the other parent and, in turn, the other parent may need to increase the maintenance. It follows from the law that if circumstances change, the court may decide to change the maintenance for a minor child. However, this does not mean a short-term, temporary, random change of circumstances. In the current economic situation, it is assumed that it will not last forever and will return to the original situation.

The situation is different if, for example, a parent has been dismissed from his or her employment, the parent has contracted a disease or other serious illness, the consequences are permanent and, as a result, the parent’s ability and capacity to earn the original income on which maintenance was determined has changed. Or other objective reasons resulting in the inability to achieve the original income for a longer period of time.

Generally, courts base their determination of child support on the following factors:

• the proportion of the parents’ time devoted to the personal care of the child,
• the parents’ income from employment or business,
• an examination of the means and abilities of the obligor (and entitled) parent,
• financial circumstances and standard of living,
• the other offspring of the parents and the associated maintenance obligations,
• the reasonable needs of the child,
• the income and economic situation of the new partners of the parents who share the same household,
• how the parents contribute to the child’s other expenses,
• the necessary expenses of the parents, e.g. health care, housing, etc,
• the age of the child.

In such a case, there could already be a change in circumstances that would justify a reduction in the maintenanceoriginally ordered. However, it should be borne in mind that it is not only the parent’s earnings that are taken into account when determining maintenance, but also his or her overall financial circumstances, means and capacity. Thus, if a parent owns several properties or has other assets of greater value, savings, etc., the loss of employment alone is unlikely to be a reason to reduce maintenance, as maintenance can be met from the remaining assets. The same would be true if the parent lost his or her job, was registered with the employment office, but decided of his or her own volition that he or she no longer wanted to work and avoided work.

What if there is a change in circumstances?

However, if a parent’s circumstances objectively change to the extent that he or she is unable to pay the maintenance originally agreed and does not reach an agreement with the other parent, he or she has the option of applying to the court for a reduction of the maintenance, since if the maintenance is not paid for the statutory period of time, this may constitute a criminal offence or the parent’s property may be subject to execution. Interim measures to reduce maintenance are not very successful. The parent must therefore assume that the maintenance proceedings will take place over a longer period of time, i.e. not in a matter of days.

If the court orders a retroactive reduction of maintenance for a minor child, the maintenance consumed is not refunded. Thus, if a motion to reduce child support is filed in May and the court does not make a final order reducing child support until November, with the understanding that child support is reduced from May, the parent is not entitled to seek a refund of the child support paid.