Who pays in the event of a divorce? And how much?

Elias is 12 years old and has problems at school, so his mum provides him with structure and homework help every day. Anna is 15 years old and a talented horsewoman. She is about to start an apprenticeship as an animal keeper. Mara, 19 years old, has been living in Zurich since autumn and is studying engineering at the ETH. The family lives in Poschiavo GR.
The parents' relationship has been on the rocks for some time. They want to separate, but are worried about how they will be able to afford the rent for a second flat and the money to support Mara, as well as who will take over homework help for Elias in the future if her mother has to increase her workload as a primary school teacher.

Childcare maintenance
prevents an increase
of the workload.

Children cost money, no question about it. Parents are aware of the costs of living, such as food, trainers, computers, hobbies, school and university fees. However, child maintenance includes more than these cash requirements (cash maintenance), namely also the care and supervision of a child. The law now refers to this as care maintenance, which must be paid in the event of separation.
The child's right to care and support is to be realised and guaranteed with the payment of care maintenance, as the parent providing care has the opportunity to continue to be present at home and not have to increase their workload. But let me start at the beginning. All parents have a comprehensive
a comprehensive maintenance obligation towards their children. This is their responsibility and the flip side of their parental custody rights. Right and duty are based on the legal relationship with the child. So regardless of whether the parents of Elias, Anna and Mara are married or not, the children are entitled to maintenance by virtue of the child relationship.
This is a remarkable legal development: the marital status of the parents has become irrelevant for joint parental custody (since 1 July 2014) and the maintenance obligation (now since 1 January 2017).

Individual requirements

Elias, Anna and Mara each have an individual entitlement to maintenance based on their needs. For one child, for example, there are study costs, for the other more support with homework. Each birth of additional children leads to new maintenance obligations, which may reduce the maintenance entitlement of previous children somewhat, but do not cancel it out. The only exception is if a child is able to support themselves independently.
Assuming that Anna is able to start her apprenticeship on a large farm in the future, receives an apprentice's wage in addition to board and lodging and earns some extra money by giving riding lessons, she could theoretically be able to support herself independently. In any case, her parents would no longer have to pay for her expensive riding lessons. Under certain circumstances, the right to child maintenance can also
the age of majority. This is the case, for example, if it is her first education, as in the case of Mara, who will be studying and living in Zurich for the next four years.

The right to child maintenance
can also exist beyond the
age of majority.

A separation or divorce as well as a remarriage of the parents does not in principle change the maintenance obligation towards the three children. In fact, however, the fact that the parents live in separate households changes their co-operation in the care, upbringing and supervision of the children.
In practice, however, personal care services such as care and homework help are often provided solely (and therefore particularly intensively) by the parent who is responsible for the children in the event of separation. The other parent then fulfils their
maintenance obligations primarily through cash payments.

So that the mother does not have to increase her workload but can continue to support Elias personally, Elias now receives carer's maintenance from his father. However, it is also possible for the parents to alternate personal care and support after a separation or divorce. This would result in «alternating custody» and the carer's maintenance would be reduced accordingly.

How much is childcare maintenance?

In principle, however, the court is guided by the childcare model practised during the marriage or relationship. A mother who has always worked part-time and looked after the children intensively, as in Elias' case, has a good chance of being allowed to continue doing so after a separation without increasing her workload. Unfortunately, the legislator has refrained from specifying exactly how childcare maintenance is to be calculated.
It has stated that the living costs of the carer should be covered. What are care and support worth? How much for homework help or a chat in the kitchen at snack time? Is or should a parent's homework help in Poschiavo be valued differently from that in Zurich?

Unmarried fathers without
caring responsibilities
are the main ones affected
of the new regulation.

So it remains to be seen which court will calculate childcare maintenance and how: using precise tables, flat-rate percentage rules (e.g. 10 to 15 percent of the parents' net income for one child, 30 to 35 percent for three children) or according to the costs of external childcare? But here too there are a variety of options: according to the costs of a crèche, the costs of fostering children or the average costs of a nanny?
Approaches are currently being proposed and discussed in the literature. The Zurich High Court has published a guideline that aims to base the «living costs» that should be covered by childcare maintenance on the minimum amount required under debt enforcement law. Over time, the case law of the Federal Supreme Court will have to judge and will judge. Post-marital maintenance consists of cash payments to the divorced spouse because the latter is limited in his/her capacity to provide for him/herself after the end of the relationship due to the jointly decided division of responsibilities, the duration of the marriage, age, professional training and development.

Post-marital maintenance serves to protect the spouses after the marriage, child maintenance serves to protect the child.

This essentially means that the ability to work was severely restricted due to the obligation to care for and look after children. Post-marital maintenance therefore serves to protect the spouses after the dissolution of the marriage. Please note: This protection does not exist in non-marital
partnerships.
The aim of child maintenance, on the other hand, is to protect the child. In the case of carer maintenance, the child is entitled, in the case of post-marital maintenance, it is the (former) caring parent. This shows that the two types of maintenance should not be mixed up or played off against each other. The question of when a divorced parent can be expected to work to support themselves is a question that concerns post-marital maintenance, not childcare maintenance.

Child maintenance law in a nutshell

The revised child maintenance law (Art. 277 et seq. of the Swiss Civil Code), in force since 1 January 2017, is the second part of the revision of family law on joint parental care and responsibility:

• Das Kindesinteresse steht im Zentrum.
• Der Kindesunterhalt steht dem Kind persönlich zu.
• Der Kindesunterhalt ist unabhängig vom Zivilstand der Eltern.
• Der Kindesunterhalt richtet sich nach dem Bedarf des Kindes; unter Umständen auch über die Volljährigkeit hinaus.
• Der Betreuungsunterhalt wird als Teil des Kindesunterhaltes anerkannt.
• Der Kindesunterhalt geht anderen familienrechtlichen Verpflichtungen vor.

About the author:

Sandra Hotz is a lawyer and co-head of the project «Kinder fördern. An interdisciplinary
Study on Dealing with ADHD» at the Institute for Family Research and Counselling at the University of Freiburg. She specialises in children's rights and issues of patient self-determination.