Maintenance Obligation of a Self-Employed Person

The court examines the possibilities and property circumstances of the obligated person individually in every single case. Each parent contributes to the maintenance of their children “according to their (individual) abilities, possibilities, and property circumstances (Section 62, Paragraph 2 of the FA).” According to the decision of the Regional Court in Prešov, case no. 8Cop/13/2008, “the term ‘their abilities and possibilities’ is not understood as only the net average monthly income of the parent (wages and other income for the previous calendar year), but the court comprehensively assesses the abilities and possibilities of the parent. This is so that the parent cannot rid themselves of (or reduce) the maintenance obligation toward the child, for example, by accepting a financially less advantageous job or becoming voluntarily unemployed, or by disposing of their property (in the case of a self-employed person, e.g., returning a trade license or ‘transferring’ a company to another person, etc.).”

This involves the so-called principle of income potentiality. As the court further states in the cited judgment, “When determining child support, the decisive factor is the income that the parent could realistically have achieved and not the income they actually achieve (…). If the income appears to be untruthful, it is the duty of the court to take into account the overall property circumstances of the obligated person and the so-called potentiality of income, i.e., their clearly unused abilities.”

In the sense of Section 62, Paragraph 5 of the FA, the court takes into account only those expenses of the obligated spouse that are necessary to be incurred to ensure child support for their child. In relation to the expenses of a self-employed person, the court stated that “not every expense of the obligated parent, even if otherwise recognized by tax regulations, is necessary from the perspective of business to such an extent that it would not be possible to preferentially fulfill one’s statutory maintenance obligation even toward an adult child who is not yet able to support themselves. Even an entrepreneur must correct their expenses so that they can fulfill this statutory maintenance obligation (judgment of the Regional Court in Prešov, case no. 5Co/71/2013).” In the same decision, the court concludes that “it is exclusively a matter for the father from when to when he will conduct business, and whether or not he cancels the trade license. It is also not decisive what actual expenses the father incurred from the business activity, i.e., what the tax loss from income is according to Section 6, Paragraphs 1 and 2 of the Income Tax Act. The decisive factor is which expenses were necessary to incur and which were not necessary to incur.”

According to older court decisions as well, “if the parent is an entrepreneur, the court, when assessing their earning possibilities for the purposes of determining child support, proceeds from the state of income achieved by this parent according to their tax return and as stated in their testimony as a party to the proceedings, subsequently confirmed by a report requested from the relevant tax authority to support the correctness of the parent’s testimony (R 17/1994).”

If a parent obligated to pay child support begins business as a self-employed person, this fact may result in the parent entitled to receive child support requesting the court for an increase in child support (see, e.g., judgment of the Regional Court in Žilina, case no. 11CoP/22/2014 or judgment of the Regional Court in Trenčín, case no. 27CoP/62/2017). According to Section 78, Paragraph 1: “Agreements and court decisions on maintenance may be changed if circumstances change.” Under such circumstances, the court may decide to increase the amount of child support even without a motion, on its own initiative.

If you are interested in legal services not only in the field of family law, do not hesitate to contact us at office@akmv.sk or by telephone at 0915 046 749.