In alimony law, there is a clear order of priority as far as alimony claims are concerned. This ranking relates to dependent children and grandchildren, dependent parents and spouses, and parents' entitlement to support from their children. Below we explain the order of eligibility and what it is based on.
Competing alimony rights and obligations
It may be the case that a person in need is entitled to legal maintenance claims against several persons. In such a case, the order in which the various maintenance debtors are obliged to pay must be examined.
Under certain circumstances, there may also be an equal-ranking obligation to pay (and in proportion to their economic circumstances) or that one is liable before the other.
What is the order of priority for dependent children and adults?
In German law, it is a long tradition to divide the dependants into certain groups and thus to consider them differently, stratified according to ranks.
Under this ranking principle, the maintenance claim of a primary dependent displaces that of a subordinate dependent.
This has an effect in particular if the economic circumstances of the person liable for maintenance are so limited that not all those entitled to maintenance can be taken into account (deficiency case).
Always taking into account the retention
According to the ranking principle, in such a case, the person entitled to maintenance with priority receives his or her full maintenance requirement and the persons entitled to maintenance with lower priority are referred to the income then remaining for maintenance purposes (taking into account the deductible to which the person liable to pay maintenance is entitled).
For further information on the deficiency case and deductible, see Calculation of deficiency case and deductible for alimony.
Priority is given to minor unmarried children
The order of precedence in the maintenance law has paid special attention to the priority preservation of maintenance claims of minor unmarried children and postulated these accordingly in law. In addition, maintenance claims of the divorced spouse will be considered on an equal footing with those of the new spouse.
With the regulation of the rank relations in accordance with § 1609 BGB the legislator succeeded now to summarize the rank relation of several maintenance entitled in a single standard. According to this, the following ranking regulation results:
1. Rank – minor and adult children up to 21 years of age
Minors and privileged adult children in the sense of § 1603 Abs. 2 BGB have absolute priority over all other dependents. Children of full age are considered privileged if they are younger than 21 and unmarried, live in the parental home and are in general school education.
This ranking regulation applies to all natural children, regardless of whether they were born within or outside of marriage or from a first or second marriage. Likewise adopted children are subject to this new regulation.
Especially new dependent children benefit
With regard to the amount of maintenance to be claimed, there will be a change for joint legitimate children only in the case that a deficiency calculation would have to be made. Rank change winners are primarily dependent children from a new relationship.
Note: However, the change in rank could result in considerable tax disadvantages for the person liable to pay maintenance if and to the extent that there is no longer any room for the payment of spousal maintenance in addition to child maintenance for economic reasons. Because only regarding the spouse maintenance the tax law offers over the institute of the so-called limited Realsplittings the possibility this payments up to the given maximum rate fiscally to write off. For child support is currently not provided this tax benefit.
Children economically weakest members
The reasoning behind the absolute priority of provision for dependent children lies in the fact that children are the economically weakest members of our society and, unlike adults, do not have the opportunity to provide for their own livelihoods.
In addition, past experience has shown that it is usually easier for the debtor to pay child support than spousal support.
2. Rank – parent caring for children, divorced spouse
Second in priority are parents who are dependent (caregiver support) because of caring for a child or would be in the event of a divorce, and spouses if the marriage is of long duration (more than 20 years).
The maintenance claim of the unmarried mother and the unmarried father also have equal priority. Furthermore, maintenance claims of cohabiting partners who care for an adopted stepchild are of equal rank (§ 9 para.7 LPartG).
Important: It is of decisive importance in this context that spouses caring for children include not only the divorced spouse but also the new spouse if he or she would be entitled to childcare maintenance in the event of divorce. Thus, the new spouse is of equal rank to the divorced spouse.
Child welfare as a guiding principle
Here, too, the guiding principle for the statutory regulation is the best interests of the child. Exclusively the need for maintenance due to the care of minor children is decisive for the classification immediately after the first-ranking child support claim. Thus, for the justification of the rank position is no longer the marital status or the chronological sequence of marriage decisive.
No differentiation according to parental relationship
For a long time, the equal treatment of married and divorced parents with unmarried parents in terms of child support was the subject of heated political debate.
Against the background that it concerns care maintenance, which serves to ensure a care appropriate to the welfare of the child, it is forbidden in accordance with Article 6 para. 5 Basic Law differentiates according to the type of parental relationship. The aim is to bring about equality between legitimate and illegitimate children.
Marriages of long duration
Marriages of long duration are also assigned to the second level. These marriages are equally in need of protection. However, the legislator has not clearly regulated under which circumstances one can assume a marriage of long duration. The term is to be determined by interpreting § 1578b of the Civil Code and, moreover, results from the established case law of the Federal Court of Justice.
According to the provision of § 1578b of the German Civil Code (BGB), when assessing a long duration of marriage, it is not so much the actual duration in years that is decisive, but rather any disadvantages suffered as a result of the long duration of marriage, in particular in connection with his professional advancement.
At this point, it is also decisive whether and to what extent economic dependencies and interdependencies arise in the context of the marital relationship.
3. Rank – spouses and divorcees of previous marriages
This includes spouses who are not subject to the 2. Rank – spouses and divorced persons.
This change in ranking has a significant impact on the overall alimony structure. The consequence of this is that the mother of a child fathered by a spouse displaces the divorced spouse from his or her maintenance rank if the marriage is not of long duration and the spouse does not care for children!
Under the previously applicable law, the husband who fathered a child out of wedlock would be obligated to pay maintenance for the child on an equal footing with his divorced wife.
Under certain circumstances, calculation of deficiency
If the debtor's earnings are low, there may be a calculation of deficiencies, d.h. the child and the divorced wife would be entitled to equal shares of the husband's income to be distributed under the law on maintenance, with neither of the two maintenance recipients earning their full support.
The mother of the child, who would be entitled to maintenance for the first 3 years of the child's life, would presumably go away empty-handed as a subordinate person under maintenance law. This is now regulated differently in the course of the reform.
No more discrimination in the case of a child born out of wedlock
According to the new alimony law, the legal situation is such that the child entitled to alimony occupies the first rank, thus enforcing the alimony claim in full, and in addition the child's mother in her capacity as the parent caring for the children occupies the second rank, ahead of the divorced wife occupying the third rank!
Strictly speaking, such a constellation could be deliberately initiated by the person liable to pay maintenance or could also occur as a result of an unplanned pregnancy.
It may be doubtful whether this result is still compatible with Article 6 Para.1 Basic Law, according to which marriage is under special protection of the state, is compatible.
According to the new regulation, however, there is also the theoretical possibility that a spouse changes from the third to the second rank in the course of the marriage, namely if he or she is married to the person liable for maintenance and, due to the long lapse of time, a long duration of marriage within the meaning of the law is reached at some point in time.
Incidentally, it must be expressly pointed out that the fact that the divorced spouse is subordinate to the new spouse does not automatically mean that the new spouse is not taken into account at all in the calculation of alimony. Since the ranking is directly related to the ability of a debtor to pay maintenance, it has an effect only in the case of lack of ability of the debtor to pay maintenance. If, on the other hand, the spouse liable for maintenance is in a position to satisfy all maintenance claims, the subordination has no effect.
For more general information on spousal maintenance, see Spousal maintenance – Separation maintenance – Post-marital maintenance.
4. Rank – Other children of full age
This rank includes dependent children who are not under Nr. 1 fall.
At this rank, alimony is usually considered for minor married children (unless they are privileged), adult children if and to the extent that they are in education or training, able-bodied children without employment, and children who have limited incapacity because of a disability.
When they reach the age of majority, they are no longer dependent children, as they can usually be expected to provide for their own living expenses. For this reason, these children are less in need of protection in relation to other dependants and thus take the 4. rank one.
Under economic and socio-political expectations of education and training, the classification in this rank seems rather doubtful in connection with equal opportunities.
However, this aspect can be left aside against the background that currently financial bottlenecks of adults in training and study are regulated by payment of training allowance and BAfoG.
Accordingly, from the point of view of maintenance law, rank in these cases only plays a subordinate role in connection with recourse claims of the social benefits agency against the parents.
5. Rank – grandchildren and their descendants
The fifth rank includes maintenance claims of grandchildren and their descendants (great-grandchildren). Accordingly, maintenance claims of grandchildren are of equal rank with those of other descendants.
6. Rank – parents
Maintenance claim of parents opposite their children – background is the increasingly practical meaning of parents maintenance due to the ever larger becoming gap between care need and the achievements of the nursing funds.
7. Rank – grandparents, great-grandparents
This ranking applies to grandparents, great-grandparents and other relatives in the ascending line, with the closer relatives taking precedence over the more distant relatives.
Note: In connection with the above-mentioned effects, it must be expressly pointed out that the ranking rule relates exclusively to statutory maintenance claims. Accordingly, contractual maintenance obligations are not covered by the provision of § 1609 BGB. In all other respects contractual maintenance regulations may not lead to it a priority on this side of the legally regulated order of precedence to procure itself.
A brief summary of the most important points
How is it regulated if maintenance is paid for more than one person??
In order to regulate the maintenance claims for several entitled persons there is a fixed order of priority.
Who gets maintenance first?
As primarily dependent children are considered natural, minor and privileged adult children. Only then do caretaker parents, spouses, children of full age in initial education, grandchildren and grandparents follow.
What is considered a long marriage in terms of alimony?
If the maintenance obligation refers to spouses after a long marriage, then this means a marriage of more than 20 years duration.