The Federal Supreme Court has issued several leading decisions on family support and has repealed or softened rules of thumb. What is the new legal situation?
Part 4
Childcare limits reasonable earnings. Who takes care of the children? How old are the kids?
On a graduated basis, at what age does the primary caretaker spouse have to work?
Abandonment of the 10/16 rule. Decision according to the school level rule.
Childcare
The obligation to take up gainful employment exists from the time of divorce or already from the time of separation if there is no prospective reunification. Due to childcare, reasonable gainful employment may be restricted. A distinction must be made between whether one parent cares for the majority of the children or whether both parents share childcare responsibilities.
The Continuity Principle
The childcare model practiced is continued in an initial phase (continuity principle). After an adequate transitional period, the spouse with custody rights – despite providing benefits in kind – must integrate himself or herself into the earning process, graduated according to the age of the mutual children.
The School Level Rule
The Federal Supreme Court (cf. 144 III 481consideration 4.7.6) had abolished the 10/16 rule in favor of the school level rule: the spouse who is the main caregiver is basically expected to work 50% from the time the youngest child enters kindergarten or school, 80% from the time the youngest child starts lower secondary school, and a full-time job from the time the youngest child reaches the age of 16.
Alternating custody
What applies to alternating custody when both parents share childcare? What level of employment is reasonable? The reasonable workload must be determined. The burden of care on working days during normal working hours is to be taken as a basis.