Childcare maintenance & cash maintenance
Under Swiss law, child maintenance consists of cash maintenance and childcare maintenance. Cash maintenance covers the direct costs of the child, such as food, clothing, health insurance and external childcare. Childcare maintenance, on the other hand, serves to compensate for the financial disadvantage of the parent who is the primary carer for the child. It is intended to ensure that this parent can cover their minimum subsistence level under family law despite their limited employment opportunities.
Change in child maintenance
Maintenance payments can generally be adjusted and thus increased or reduced in the context of modification proceedings. This takes into account the fact that at the time of divorce, it is only possible to predict to a limited extent how the parents’ financial circumstances will develop in the future.
A modification of maintenance requires significant and permanent changes in financial circumstances. Conceivable examples include significant changes in the income of the parent liable for maintenance as a result of a change of job, long-term illness or unemployment. The child’s needs may also change, for example due to new or reduced costs for school, education or external childcare. However, a mere temporary change does not justify an adjustment.
Previous case law
According to older Federal Supreme Court case law, changes in the financial circumstances of the parent with custody only led to an adjustment in child maintenance in exceptional cases. This reluctance can be explained by the fact that child maintenance used to consist exclusively of cash maintenance. As this was generally owed by the non-custodial parent and covered the direct costs of the child, an increase in the income of the custodial parent did not normally have any influence on the amount of maintenance.
Current case law
The introduction of childcare maintenance has fundamentally changed this practice. The Federal Supreme Court expressly clarified this in its ruling 5A_176/2023 of 9 February 2024.
Although childcare maintenance is formally child maintenance, economically this amount benefits the parent providing care, as it serves to compensate for the financial disadvantage during the care phase.
If the income situation of one parent – regardless of whether it is the caring or non-caring parent – improves significantly and permanently, this has a direct impact on the calculation of childcare maintenance. The higher the parent’s own income, the lower the need for childcare maintenance. The only decisive factor is that the actual economic circumstances have changed permanently.
Conclusion
An adjustment of child maintenance may be considered in the event of significant and permanent changes in circumstances. Unlike in the past, an improvement in the income of the parent with custody may now also justify a reduction in child maintenance.
If you have any questions regarding family law, the attorneys-at-law at Pilatushof AG will be happy to assist you.