by Admin2 | Apr 1, 2021 | news-en
The divorce decree results in a maintenance obligation on the minor children of the former spouses. In the divorce decree, the court is obliged to decide how the spouses will contribute to the costs of the child's maintenance and upbringing. There is no way that the issue of child support will remain unresolved in the divorce decree, even if the parents have reached an agreement with each other. The same goes for separation.
The obligation to decide in the divorce decree on the amount of maintenance for minor children provided by the parent who has not been entrusted with custody of the child, exists regardless of the position of the parent who is entrusted with custody of the child and his / her efforts to independently support the child. The renunciation of child support payments to the child by one of the parents will therefore be ineffective, as neither of the parents, nor any other legal representative of the child, may validly waive in advance on his behalf the maintenance claims that the child serves against both parents (judgment of the Supreme Court of 21 October 1952, C 1624/52).
In another judgment, the Supreme Court indicated that the obligation to establish maintenance also exists when one of the divorcing parents already pays the maintenance voluntarily (Supreme Court judgment of 9 January 1953, C 2943/52).
In the case of alternating custody, the courts often resign from establishing maintenance and charge both parents with the costs of maintaining and bringing up a minor child. Then they agree that each of them will bear the costs of the current maintenance of the child during the periods of direct care of the minor, and the remaining costs will be borne by the parents in half. This will happen when the financial situation of both parents is similar. On the other hand, when the income and financial resources of each parent are different, and the child stays with each parent for comparable periods, this may justify ordering maintenance for the child from the parent whose earning potential is higher.
On the other hand, entrusting one of the parents with custody of a child thus determines the manner of performing the maintenance obligation by him (judgment of the Supreme Court of 21 November 1952, C 1814/52).
However, if neither of the parents will be custody of the child after the divorce, the court will determine the amount of child support ordered by them separately for each of them.
by Admin2 | Mar 1, 2021 | news-en
Do the income and needs of the ex-spouse's cohabitant affect child support from a previous relationship?
In the judgment of 10 July 1998, I CKN 788/97, the Supreme Court considered the issue of the relationship between cohabitation and the maintenance obligation. According to the operative part of the judgment, the ex-spouse's cohabitation does not exempt from maintenance.
With art. 60 § 3 sentence 1 of the KRO it is clear that the condition for the expiry of the maintenance obligation of the divorced spouse obligated to maintenance is the contracting of a new marriage by the former spouse recognized as entitled to maintenance. This provision stipulates that the divorced spouse's obligation to provide subsistence ceases when the spouse concludes a new marriage. The effect of the expiry of the maintenance obligation between divorced spouses is therefore related to the contracting of a new marriage by the entitled spouse. The Supreme Court thus emphasized the differences between a formal marriage and cohabitation.
On the other hand, in the judgment of 11 July 2000, II CKN 1015/00, the Supreme Court indicated that the ex-spouse's cohabitation may affect the amount of alimony. According to the Supreme Court, the financial and life situation of a cohabitant of one of the ex-spouses, and thus also the fact of being in an actual relationship, may affect the amount of child support payments from the previous relationship. Running a common household in an extramarital relationship brings mutual economic dependence on the partners of this relationship. In the opinion of the court, therefore, it should be assumed that the needs of a divorced spouse who is in an informal relationship are assessed taking into account the earning and financial possibilities of the divorced spouse's partner in this relationship. Had the courts failed to take this into account, the divorced spouse entitled to maintenance would be in a privileged position vis-à-vis the other spouse. According to the Supreme Court, such a situation is unacceptable as it would violate the principles of social coexistence.
To sum up, the cohabitation of the ex-spouse does not exempt the child from alimony, but it may affect the amount thereof.
by Admin2 | Feb 1, 2021 | news-en
People who are under an obligation to pay maintenance often try to avoid it. The family and guardianship code therefore protects the interests of the person entitled to maintenance. In art. 136. it was determined that if, in the last three years before the judicial recovery of maintenance benefits, a person who was already liable for these benefits, without valid reason, renounced his property right or otherwise allowed to lose it, or if he resigned or changed employment less profitable, the resulting change is not taken into account in determining the scope of the maintenance. The sanction of art. 136 of the Criminal Code is directed against those persons obliged to maintain who, of their own free will, without valid reasons, reduce their earning potential, which makes it difficult or impossible to fulfill the maintenance obligation.
Pursuant to art. 138 of the Family and Guardianship Code, in the event of a change in relations, you can request a change to the decision or agreement regarding the maintenance obligation. According to the position of the District Court in Nowy Sącz in the judgment of 24 October 2013, ref. No. III Ca 607/13, the maintenance obligation depends on the earning and financial possibilities of the maintenance obligee and the justified needs of the person entitled to maintenance. Due to this, a reduction (or increase) of maintenance may occur in the event of a significant change in the personal and financial situation of the parties to the maintenance relationship.
In the judgment of March 12, 1973, case no. III CRN 6/73, the Supreme Court pointed out that the change of employment to less profitable, resulting in a decrease in the earnings of the person liable for alimony may constitute the basis for a demand for a reduction of maintenance pursuant to Art. 138 kroons if there is a valid reason for this change. This means that only a change of employment to a less profitable one without valid reason will be sanctioned. However, it must not be forgotten that if the needs of the entitled to maintenance increase at the same time, and the awarded maintenance does not exceed the financial and financial capacity of the obligee, there will be no reason to lower them.
At the same time, it is assumed that the mere possibility of the defendant finding a job and receiving earnings at a level similar to those obtained on the date of determining the maintenance payments means that the application of the claim for the reduction of maintenance will be excluded (judgment of the District Court in Nowy Sącz of October 24, 2013 No. . with reference number III Ca 620/13).
It is worth quoting the words of the District Court in Sieradz in the judgment of June 26, 2013 I Ca 215/13 that the scope of a child's justified needs should be determined in such a way that, if they are satisfied, the child's living standard would be the same as that parents, because the level and quality of meeting the child's needs depend on the parents' income and financial opportunities, which also determine their standard of living.
by Admin2 | Jan 1, 2021 | news-en
Art. 1082 of the Code of Civil Procedure provides for granting an enforcement clause to an enforcement order which awards maintenance. According to it, the court gives the enforcement clause ex officio to the writ of execution, which awards maintenance. The writ of execution is then served on the creditor ex officio. This title can be either a judgment, an order or a court settlement.
The commented article modifies the provisions of Art. 782 of the Code of Civil Procedure, according to which the enforcement clause is issued by a single court at the request of the creditor. Pursuant to this provision, an enforcement order issued in proceedings that was or could have been initiated ex officio is given an ex officio enforceability clause by the court, and a payment order issued in an electronic writ proceedings is subject to an ex officio enforcement clause immediately after it becomes final. This means that in matters relating to maintenance, Art. 782 of the Code of Civil Procedure does not apply.
In cases where maintenance has been awarded, enforcement may be initiated ex officio in accordance with Art. 1085 of the Code of Civil Procedure at the request of the court of first instance that heard the case. Such a request is addressed to the competent enforcement authority.
It is also possible to initiate execution upon request. Art. 1081 § 1 of the Code of Civil Procedure says that if enforcement concerns maintenance or an annuity in the nature of maintenance payments, the application for enforcement may also be submitted to the bailiff of the court having jurisdiction over the creditor's place of residence.
The order of immediate enforceability should be distinguished from the enforcement clause. Applying such a rigor makes the decision enforceable, even though it is not final. Only then is it possible to apply to the bailiff with a request to initiate enforcement, even if the deadline for appealing the judgment has not expired.
According to Art. 333 of the Code of Civil Procedure, the court ex officio (i.e. without the claimant's or the defendant's request) imposes the order of immediate enforceability if it awards maintenance - in terms of installments payable after the day the claim is brought. However, as for the installments payable before bringing the action - for a period not longer than three months.
In order to start the recovery of maintenance, you must submit an application for the initiation of the recovery of maintenance and an enforcement order (judgment with an enforcement clause). These documents are submitted to the court bailiff in whose district the debtor or creditor lives.
by Admin2 | Dec 1, 2020 | news-en
The content of the Family and Guardianship Code regulates that the parents are the legal representatives of the child under their parental authority and each of them may thus act independently. Art. 98 § 2 of the Commercial Companies Code However, it introduces an exception to this rule - neither parent may represent the child in legal transactions between the child and one of the parents or their spouse. However, this regulation will not apply when the legal act to be performed by one of the parents consists in a gratuitous contribution to the child or concerns the maintenance and upbringing due to the child from the other parent.
It was doubtful whether in cases concerning the crime under Art. 209 of the Penal Code (non-alimony) a minor victim may be represented by one of the parents in a situation where the accused is the other parent or the other parent cannot represent the injured child and it is necessary to appoint a guardian for him in accordance with the requirements of Art. 98 § 2 and 3 and article. 99 k.r.o.
So far, this issue has been ambiguously resolved and the courts have overwhelmingly opposed the possibility of representation by the other parent. In the Resolution of the Supreme Court of 7 judges of 30 September 2010, I KZP 10/10, it was stated that the appointment of a probation officer is necessary, but an application for prosecution may be submitted by the other parent. This exception, however, concerned only the act of submitting a motion for prosecution and the Supreme Court did not comment on the remaining actions.
In the decision of the Supreme Court of June 25, 2020, I KZP 4/20, the court ruled that legal actions taken by a representative of a minor victim in criminal proceedings for the offense of persistent non-alimony against a child's parent are legal actions relating to the maintenance due to the child from that parent and education, within the meaning of the above-mentioned Art. 98 § 2 point 2 k.r.o. Thus, the Supreme Court extended its view expressed in the previous jurisprudence by adding that the other parent may perform all activities. In practice, this means the consent of the Supreme Court to the exercise of the minor's rights in these proceedings by the other parent.
KS
by Admin2 | Nov 2, 2020 | news-en
Where the parties have minor children, the issue of parental responsibility and child support should be included in the divorce petition. The divorce court is obliged to issue a ruling in this respect also if the party has not submitted such a request.
The divorce court always rules on parental responsibility over joint minor children, even if there is currently a ruling by another court regulating this issue. The court should also, in the divorce decree, decide on the issue of the maintenance obligation towards joint minor children, even if such an obligation was imposed in a previous decision. This was ruled by the Supreme Court in its judgment of June 9, 1975 (file reference number III CRN 155/75).
In practice, this means that the court deciding to dissolve a marriage is obliged to decide on the issue of the obligation to maintain child support. He is not relieved of the fact that it was regulated by a final judgment prior to the initiation of the divorce case.
In a situation where the alimony has been settled by a final and binding judgment of the guardianship court or a court settlement before initiating divorce proceedings, the divorce court should refer to the previous judgment. Then the court must indicate whether it raises or reduces the maintenance to a specific amount or keeps it at the same level.
If the court decides that there has been no change in relations in this respect, it should state in the operative part that the maintenance payments are specified in the previous judgment. However, in the event of a change in the facts, the adjudicating court may modify the amount of maintenance. However, he cannot do so without referring to the previous maintenance order. In this way, doubts related to the execution can be avoided.
A spouse filing for divorce should apply for parental authority and maintenance, also in a situation where his request is consistent with the content of a previously issued judgment.
