Child benefit and separation – who gets the child benefit? What must be considered in any case?

If parents separate, the eligibility for child benefits often changes. What to consider when forwarding child benefits to the beneficiary?

1. How long is child benefit paid?

a) Minor children:

Child benefit is generally paid until the child reaches the age of 18. Child benefit is paid until the child reaches the age of 18.

b) Adult children:

(1); If the child is unemployed, it will be paid until the child reaches 21. Paid until the child reaches the age of.

(2); Child benefit is paid until the child reaches the age of 25. Child benefit is paid until the child reaches the age of 65 if the child is in vocational training or during a transitional period of no more than four months if the child is between two periods of training or between a period of training and completion of compulsory military or alternative service.

(3) If the child is unable to support himself/herself because of a physical, mental or psychological disability and the disability is diagnosed before the child reaches the age of 25, he/she must be in the same household as the child. If the child has reached the age of 18, child benefit is paid without age restriction.

2. Who gets the child benefit?

Both parents are entitled to child benefit. If there is more than one beneficiary, the following applies:

a) Joint household:

If the parents share a household, they determine who should receive the child benefit.

b) Separate households:

(1) If the parents are separated or divorced, the child benefit is paid to the parent in whose household the child lives.

(2); If the child lives with both parents in different households, it depends on where the child has his or her main focus of life.

(3) In the case of alternating models, the parents decide to whom the child benefit will be paid. If they cannot agree, the family court decides on application.

c) Foreign household:

(1) If the child does not live in the household of one of the parents, the child benefit is due to the parent who pays child support.

(2) If both parents pay child support, the child benefit is paid to the parent who pays the higher support.

(3) If both parents pay the same amount of child support, they determine who should get the child support. If they cannot come to an agreement, the family court decides upon request.

3. Reclaiming of the child benefit by the family cash office:

If a parent has received child benefit in whose household the child did not live, the family benefits office can reclaim the child benefit from this parent.

If the parent declares that he or she has forwarded the child benefit to the other parent, the Family Fund will usually only take this into account if the other parent has submitted a so-called "claim". Forwarding declaration (official form) signs.

In fact, it is not the task of the family cash office to determine maintenance agreements or. -payments among different child support beneficiaries(spouses) to be taken into account, reviewed and assessed under civil law. In the event of a change in eligibility, it is rather up to those entitled to child benefits to adjust their private-law agreements to the legal situation or, in the event of delayed adjustment, to compensate for possible overpayments by private-law means(BFH, decision of 29.08.2011, Az. III 110/10).

If the other parent refuses to sign the forwarding declaration, it is recommended that an Application to the family court to sign the forwarding declaration or – if he/she has already had to pay the child benefit back to the Family Fund in the meantime – alternatively a claim for damages to provide.

4. Claims of one parent against the other in the event of reclaiming of child benefits by the family benefits office:

In principle, the parent who has to pay back the child allowance to the family benefits office because the other parent was entitled to child allowance can claim the child allowance back from the other parent if he or she passed it on to the other parent.

The problem, however, is that the other parent can rely on the so-called. The other parent can invoke the loss of enrichment, since he or she has already used the child benefit to pay for child support.

The maintenance obligor, on the other hand, cannot refer to the family allowance fund Discontinuation of enrichment refer to.

The person obligated to pay child support must pay the child support that he or she has forwarded to the other parent back to the Family Fund and is not reimbursed by the other parent.

The other parent, on the other hand, can apply to the family benefits office for child benefits retroactively for four years.

If the person obligated to pay maintenance leaves the family household and thus loses the child benefit entitlement, he or she should do so immediately notify the family cash office and ensure that he no longer receives child benefits. This obligation also arises from his duty to cooperate with the family cash office. At the same time, he or she should advise the other parent to file his or her own child benefit application with the family benefits office. If he or she still receives child benefit from the family benefits office for some time despite not being entitled to it, he or she should only forward it to the other parent if he or she signs the official form for the forwarding declaration.

Thurid Neumann
Specialist lawyer for family law

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