Maintenance obligation for a minor child

The issue of child support during joint physical custody is regulated by Section 62 (6) of Act No. 36/2005 Coll. on the Family and on amendments and supplements to certain acts (hereinafter referred to as the “Family Act”), in the sense of which the court may determine child support even in the case of joint physical custody, taking into account the length of the personal care of each parent; however, the determination of child support is not a requirement.

The determination of a reasonable amount of child support from the other parent is, in this case, left to the discretion of the court, which, after a thorough examination based on the submitted income of both parents, will evaluate whether the determination of child support is justified, or will also determine the specific amount that the parent of the minor children is obliged to pay.

With regard to Section 62 (2) of the Family Act, according to which: „Both parents contribute to the maintenance of their children according to their abilities, possibilities, and property relations. The child has the right to share in the standard of living of the parents,“ it can be concluded that in the case of a significantly different income, the child has the right to the same standard of living with both parents; in such a case, the determination of child support appears to be justified.

The above is also confirmed by the decision of the Regional Court in Trenčín, Case File No. 19Cop/6/2005 dated 23.04.2015, which states in its judgment: „The priority in the case of joint physical custody of both parents, lasting for an equally long period of time with each of the parents, with reference to the provisions of Section 62 (6) of the Family Act, is the non-determination of child support. The exception is only a situation where the incomes of the parents are exceptionally different.“

You can reach an agreement with your former partner on the arrangement of rights and obligations towards your child. However, such an agreement must be approved by a court. This fact follows from Section 36 (1) of Act No. 36/2005 Coll. the Family Act, according to which: „Parents of a minor child who do not live together may at any time agree on the arrangement of the exercise of their parental rights and obligations. If they do not agree, the court may, even without a petition, arrange the exercise of their parental rights and obligations, in particular, it shall determine to which of the parents it will entrust the minor child into personal care.“

This provision also serves the case when one of the parents, despite the agreement, does not fulfill their obligations.

In the event that you reach an agreement with your former partner on the arrangement of rights and obligations, it is necessary to submit a petition to the court.

The court does not have to approve the petition for an agreement submitted by you in its entirety, as it decides primarily in the best interest of the child. This means that it is not bound by your petition and can arrange your petition by an authoritative decision. The best interest of the child is taken into account particularly in matters of child support, personal care, or the contact of the child with the other parent.

If you do not reach an agreement with your former partner, the second option is to request the determination of child support through judicial proceedings.

Whether one of the spouses has a right to maintenance from the other spouse after a divorce cannot be unambiguously determined, as the court examines various requisites and criteria that would confirm this claim.

In the sense of Section 72 (1) of Act No. 36/2005 Coll. on the Family: „A divorced spouse who is not able to support themselves may request from the former spouse to contribute to their reasonable maintenance according to their abilities, possibilities, and property relations.“

The law establishes several conditions for the right to an allowance to be granted to you, namely:

• the marriage must be validly dissolved by divorce

• one of the spouses is not able to support themselves independently

• the abilities and possibilities of the other spouse correspond to being able to contribute to the spouse

• compliance with good morals

This obligation does not arise automatically by operation of law, but in the event that the spouses agree on it or if the court decides on it after an examination. At the same time, we draw attention to the fact that the maintenance allowance of a divorced spouse has priority over other maintenance obligations.

The necessary maintenance of a spouse includes not only the necessary costs for the catering of the spouse but also the satisfaction of other needs related to their health status, age, and way of life.

For clarification, we also attach an excerpt from decision R 39/1968: „The ability of a divorced spouse to support themselves is determined not only by their earning abilities and possibilities but also by their property relations; to be sure, the court, within the scope of considering whether and to what extent the necessary maintenance of a divorced spouse is secured from their own property, shall also take into account the overall circumstances of the divorced spouse, the type of property, the purpose for which it is intended, and the like.“

In the event of a change in circumstances since the issuance of the original decision regulating child support for the son (e.g., an increase in costs due to a deterioration of his health condition, an increase in treatment costs, etc.), it is also possible to file a petition for a change in the amount of child support for the son.

Hello, A suspension of studies is not in itself a fact that would justify the cancellation of the maintenance obligation towards a child. The general rule applies, according to which parents are obliged to secure the maintenance of their child until the time the child is able to support themselves (Section 62 (1) of Act No. 36/2005 Coll. the Family Act, hereinafter referred to as the “ZR”). This obligation concerns children in general, meaning both minors and adults.

From the fact that a child has suspended their studies, it cannot be inferred without further context that they are already able to support themselves. This ability is assessed comprehensively, and to determine it, it is necessary to take into account other variables (e.g., where the daughter lives, with whom, whether she already has a stable job, how much she earns, etc.). Only on the basis of these and other facts can a sufficient judgment be made about the child’s ability to support themselves.

According to the judgment of the Regional Court in Košice, Case File No. 8CoP/246/2012: „The ability of a child to support themselves is dependent on when the child becomes capable of covering their justified needs from the remuneration for their work (…). The maintenance obligation of parents towards a child expires only when the child achieves a regular and sufficient income from a profession that they have chosen according to their abilities, possibilities, prerequisites, and interests. As a circumstance under which the maintenance obligation of parents continues (justified by the parent’s role to lead the child to obtain an education and thereby the necessary prerequisites for self-realization), studying is traditionally accepted. On the one hand, it is necessary to take into account the interest of the child in relation to their abilities and talents so that they obtain suitable prerequisites for their better application; on the other hand, there is a justified requirement for the timely realization of the mentioned talents so that there is no abuse of the parental maintenance obligation solely due to a negative attitude toward work (e.g., culpable termination of an employment relationship), or an irresponsible attitude toward studies.“

In this context, the judgment of the Regional Court in Trenčín, Case File No. 6CoP/24/2019, is also interesting. In the case of a father-petitioner requesting the cancellation of child support on the grounds that his daughter had suspended her university studies for the second time for the purpose of a study stay abroad, the court stated the following: „The maintenance obligation (from the perspective of preparing a child for a profession) generally ends upon achieving the first highest level of education in the regular educational process (the first completed college or university), if the child decides to continue their studies at a university. In the event that the entitled person does not complete this education within the standard duration, it is necessary to examine for what reasons the prolongation of studies occurred (for example, in the form of a suspension of studies) and then evaluate them in terms of whether during that time they were objectively capable of acquiring such traits and abilities that allow them to achieve a regular and sufficient income from a profession. (…) In the adjudicated matter, it was (…) proven that the named individual is still studying at her (first) university, while the suspension of her studies occurred for the purpose of improving her skills in a foreign language, which goal can undoubtedly contribute to greater opportunities for the application of the entitled person on the labor market after graduation. This is not an unstandardized phenomenon at present, while the duration of this suspension (1 year) is not disproportionate in the sense that it would disproportionately prolong the regular period of study of the entitled person at the university.“

Hello, To answer this question, it is not enough to know the fact that your child no longer attends school. This is because it does not yet have to mean that your child is already able to support themselves. It is precisely the acquisition of this ability that delineates the obligation of a parent to contribute to the child’s maintenance. If the court considers that, given other circumstances, it is not necessary for the parental maintenance obligation to continue further, it will decide to cancel the child support.

Standardly, the maintenance obligation of parents expires when the child „becomes capable of covering their justified needs from the remuneration for their work (…). The maintenance obligation of parents towards a child expires only when the child achieves a regular and sufficient income from a profession that they have chosen according to their abilities, possibilities, prerequisites, and interests (e.g., judgment of the Regional Court in Košice, Case File No. 8CoP/246/2012 or judgment of the Regional Court in Trenčín, Case File No. 6CoP/24/2019).“

Hello, Part of parental rights and obligations, in the sense of Section 28 (1) letter a) of Act No. 36/2005 Coll. the Family Act (hereinafter referred to as the “ZR”), is the „systematic and consistent care for the maintenance of a minor,“ while it applies that „both parents have parental rights and obligations (Section 28 (2) of the ZR),“ regardless of whether they are also married or whether they live together in one household.

According to Section 62 (2) of the ZR: „Both parents contribute to the maintenance of their children according to their abilities, possibilities, and property relations.“

However, according to Section 62 (3) of the ZR: „Each parent, regardless of their abilities, possibilities, and property relations, is obliged to fulfill their maintenance obligation to the minimum extent in the amount of 30% of the subsistence minimum amount for a dependent minor child.“

If your former partner does not contribute to the maintenance of your two common children (or if he contributes only negligibly), you have the right to turn to the court with a petition for the determination of a maintenance obligation.

In judicial proceedings in which the court decides on the scope and amount of the maintenance obligation, the court takes into account, first and foremost, which of the parents personally cares for the child for most of the time (Section 62 (4) of the ZR). The court also examines the individual expenses of both parents, while it does not take into account those expenses that were not necessary to incur (e.g., the purchase of an expensive mobile phone). By law, child support has priority over any other expenses of the parent (Section 62 (5) of the ZR).

Furthermore, the court will also take into account the „justified needs of the entitled person (the minor child), as well as the abilities, possibilities, and property relations of the obliged person. The court shall also take into account the abilities, possibilities, and property relations of the obliged person if the obliged person gives up a more advantageous employment, earning, or property benefit without an important reason; it shall likewise take into account disproportionate property risks that the obliged person takes upon themselves (Section 75 (1) of the ZR).“

Interim Measure

In the event that the payment of child support needs to be ordered „urgently,“ it comes into consideration to file a petition for the ordering of an interim measure (neodkladné opatrenie), by which the court would order the obliged person (your former partner) to pay child support for your minors in a specific amount, for the time until the court decides on the amount of child support in the main proceedings for the determination of maintenance (an interim measure represents only a means of temporary regulation of circumstances). As the petitioner, you would have to thoroughly justify the need for such an urgent regulation (e.g., list in detail the expenses in connection with securing the needs of the minor, with their upbringing and maintenance, your earning and property relations, etc.).

„The ordering of an interim measure requires the fulfillment of the condition that there is a need to urgently regulate the circumstances. Such a need is given by the urgency of the situation, in which waiting until a potential final decision (issued after a properly conducted taking of evidence) may not be bearable, because the delay caused by the need to preserve all (including procedural) steps in the proceedings on the merits could lead to harm that would later be difficult (if at all) to avert. In matters of court care for minor children, from the mentioned point of view, the priority interest is the creation, or under certain circumstances also the restoration, of conditions for the proper and trouble-free development of the child. To this goal, on the one hand, only the limited binding nature of the court in proceedings by the petitions of their parties is subordinated (which manifests itself in the fact that the court does not have to and often quite well cannot accept precisely the solution to the problem presented by this or that party to the proceedings, but is obliged in this direction to be guided exclusively by the interest of the child in the most optimal regulation for them), but on the other hand, also the procedure in taking evidence in such proceedings (resolution of the Regional Court in Trnava of February 7, 2017, Case File No. 25CoP/56/2016).“

The court shall decide on a petition for the ordering of an interim measure no later than 30 days from the delivery of the petition (Section 328 (2) of Act No. 161/2015 Coll. the Civil Dispute Procedure Code).

Our law firm offers comprehensive advice and representation in maintenance proceedings. We will help you draft a petition to the court for the determination of child support, as well as a petition for the ordering of an interim measure, and we will also represent you throughout the entire judicial proceedings.

Hello, First of all, it is necessary to clarify that just as the obligation to pay child support is “ordered” by a court in a decision, relieving the obliged parent of this obligation is again possible only through judicial proceedings.

As stated in the provision of Section 78 (1) of Act No. 36/2005 Coll. the Family Act (hereinafter referred to as the “ZR”): „Agreements and court decisions on maintenance may be changed if the circumstances change (on which the determination of the amount of the original child support was based – e.g., a parent loses their job, another child is born to them, etc.). Except for maintenance for a minor child, a change or cancellation of maintenance is possible only upon a petition.“

A requisite of a petition for the cancellation of the obligation to pay child support is also the specification of the date from which this change is to take effect. In principle, however, it should be a day that preceded the day the petition was filed (Source: Bános: Family Act – EPI commentary).

According to Section 78 (2) of the ZR: „If a cancellation or reduction of maintenance for a minor child occurs for the past period, consumed maintenance is not returned.“ A minor child is therefore obliged to return only that maintenance which remained unconsumed. According to Pavelková, maintenance intended for the creation of savings deposited into a minor’s account established by their parent can always be considered unconsumed maintenance (Source: Pavelková: Family Act – commentary, 3rd edition, C. H. Beck, 2019).

An adult child who received maintenance, however, is always obliged to return the sum of maintenance that exceeds the granted amount.

We remind you that the right to request the return of child support overpayments is subject to a three-year limitation period, which runs „from the day when the right could have been exercised for the first time (Section 101 of Act No. 40/1964 Coll. the Civil Code).“ In this case, the decisive day for the commencement of the limitation period will be the day when the court decision on the cancellation of maintenance became final and effective.