The Federal Supreme Court has issued several leading decisions on family support and has repealed or softened rules of thumb.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 5
Family support calculation, CHILDREN FIRST, PRIORITY ORDER
How is the support calculated, how is the need determined? Who pays for it?
What is the priority order if everyone’s needs cannot be met? To whom or what should the red-pencil be applied?
Calculation of maintenance
Child support and alimony are to be calculated using the same methodology. The amount of alimony is usually calculated using the two-step method with excess distribution (cf. Ruling of the Swiss Federal Court dated 9th February 2021 E. 4.3; 5A_311/2019 dated 11th. Nov. 2020 E. 6.6). The total income (spouses or parents, children) and the needs of all involved are determined. If a surplus remains, it is distributed at discretion. This is done only according to large and small heads. Minor children have half the surplus share of the parents (cf. Ruling of the Swiss Federal Court 5A_311/2019 dated 11th. Nov. 2020 E. 7.3).
Cost of living, breadline
The need is determined on the basis of the guidelines for calculating the subsistence minimum under debt collection law. If the financial means are sufficient, the subsistence minimum under family law is extended and items such as taxes, any extra-mandatory health insurance and more generous housing costs are considered (cf. Federal Supreme Court Judgment 5A_311/2019 of Nov. 11, 2020 E. 7.2 f.).
No sharing of deficit
The debtor must always be left with the subsistence minimum as there is no sharing of deficits.
Priority order
The needs of all persons affected cannot always be satisfied. According to the Federal Supreme Court, a list of priorities applies: Minor children first, and in first place cash maintenance for minor children, in second place care support. After that, a spouse receives any spousal or post marital maintenance. Maintenance for children of full age is the last on the list.
Cash maintenance, childcare maintenance
Cash maintenance and care for a child are equivalent. Anyone who looks after a child, i.e. the custodian provides maintenance in kind by caring for and raising the child, does not in principle have to pay for the child’s expenses. The parent who does not essentially care for the child is responsible for cash maintenance. However, this does not apply if the caring parent is financially better off (cf. Federal Supreme Court Judgment 5A_583/2018 of Jan. 18, 2019 E 5.1 f.).
Person of full age
In the case of maintenance for adults, childcare is not included, so both parents must pay for it according to their financial capacity. The subsistence minimum under family law is to be taken as a basis. There is no entitlement to a share in any surplus.