Ideally, a divorce should be peaceful. But what if the shreds fly – especially when it comes to money? Who has to pay for what? Who has to pay whom how much? In recent years, triggered by a change in the law in 2017, the Federal Supreme Court has issued a number of judgments with innovations in maintenance law.
Muriel Ego-Sevinc (33), lawyer and mediator at Blumenfeld law firm, works mainly in family law. Her main areas of expertise include divorce, separations and maintenance proceedings. “Maintenance law in particular has been greatly modified in recent years,” she says to Blick. The expert provides an overview of the most important terms.
For reasons of readability, the woman is chosen in the text as the person caring for the child or children, since this is still often the case in practice, as the lawyer emphasizes. However, the information and descriptions refer to the person in charge of the partnership.
“From 2017, legitimate and non-marital children were given equal status by a change in the law. Even unmarried women are compensated for their care-related income losses with the so-called child support payments,” explains Ego-Sevinc. The child support is intended to secure the subsistence level of the woman.
school level model
“In 2018, the school level model replaced the 10/16 rule.” The school level model deals with the question of when the mother has to start working again. According to the new case law, as soon as the youngest child attends compulsory schooling (applies to kindergarten or primary school, depending on the canton), she has to work 50 percent of the time. When the youngest child enters high school, she is expected to increase her workload to 80 percent. From the age of 16 it is necessary to work 100 percent. If the caregiver does not do this, a hypothetical income can be credited to them. Depending on the individual case, married women are also entitled to post-marital maintenance.
“The woman is entitled to the continuation of the marital standard of living if she has given up her job in favor of looking after the household and raising children due to a common life plan and it is no longer possible for her to continue her previous professional position,” says Ego-Sevinc. Whether these criteria of characterizing life are met must be checked on a case-by-case basis. “Until now, it was assumed that a marriage was life-shaping if the marriage had lasted more than ten years or had children. The federal court has abandoned these presumptions in a number of recent judgments. In the future, each case will have to be examined individually.” It should be noted that even if the criteria for a life character are not met, depending on the constellation, post-marital maintenance can be granted. “In terms of amount and duration, however, the court has a great deal of discretion,” explains the lawyer.
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Details in the marriage contract
And what about a marriage contract? “Post-marital maintenance can also be regulated in the marriage contract. For example, it can be limited in amount or excluded. It should be noted, however, that every marriage contract is examined by the court at the time of divorce for obvious inappropriateness. If the financial circumstances of the spouses at the time of the divorce have changed significantly compared to the circumstances at the time the contract was concluded, the court may not approve the marriage contract.”
Finally, divorce lawyer Muriel Ego-Sevinc summarizes: “At the latest since the new federal court rulings, the lower-income spouse can no longer rely on being financially secure in the long term beyond the divorce.” For this reason, the lawyer advises not to carelessly reduce the workload significantly over a longer period of time or even give it up. According to the new case law, the financial consequences can be serious.