If the child support payments from the ex-partner keep failing to materialize, one should think about a child support execution. Often this is done through wage garnishment.
1. Missing alimony payments and wage garnishment
If the ex-partner does not meet his maintenance obligations, one should consider suing for maintenance as we have described. A differentiation must be made between the maintenance claim (judicial determination of the maintenance claims) and the enforcement of these maintenance claims (enforcement of the maintenance claims by means of compulsory execution). Since alimony payments accrue monthly and thus quickly add up to considerable sums, a wage garnishment will often be pending with the ex-partner. This is because the partner's earned income is regularly his or her only attachable asset.
How exactly does a wage garnishment due to maintenance claims work and how much can be garnished at all?? And what are the obligations of the employer if one of his employees is subject to wage garnishment?? The following article provides an overview of what needs to be considered in this context.
2. From the maintenance claim to the enforceable maintenance title
First of all, the maintenance claim should be asserted in writing with the partner obliged to pay maintenance, because the maintenance claim only exists from the date of the first assertion! Those who take their claims to court obtain an enforceable child support order through a successful lawsuit (court confirms the child support claim). This can be static (monetary amount) or dynamic (monetary amount adjusted for changes) in nature. A dynamic title is more practicable, because in the event of changes – e.g. in the case of a divorce – the title can be changed.B. changed salary of the person obliged to pay maintenance – no new title has to be obtained.
An enforceable maintenance order does not necessarily require a prior judgment in court. Further possibilities are namely
- the preparation of a youth welfare office deed at the local youth welfare office
- the preparation of a notarial deed with a notary public
- An out-of-court settlement by a lawyer
- a settlement in court.
All these options have the fundamental advantage that they are less expensive than a judgment. A youth welfare office deed for claims for children up to 21 years of age represents the simplest and most cost-effective route. Of course, the parent liable for maintenance must be prepared to commit himself/herself in the youth welfare office document by signing it.
The same applies to a notarial deed at the notary's office. Here only the notary costs are incurred.
In the case of a lawyer's (out-of-court) settlement, only the lawyer's fees and no court fees are incurred and one receives the professional advice of a lawyer. In order for the settlement to be enforceable, the party liable for maintenance must submit to immediate execution in the event of non-payment.
The settlement in court will often be the last possibility to come to an amicable agreement with the parent liable to pay alimony. Even now costs can be saved: Court costs are lower if a settlement is reached in court and there is no judgment.
For such a settlement, it is necessary that both parents declare it in court and the judge records it. It is not sufficient if only one parent submits a written settlement and has the other sign on it (OLG Karlsruhe v. 06.07.2010 – Az. 5 UF 17/10).
3. Enforcement of the maintenance order
If a maintenance order exists, it can be enforced. This can be done through a wage garnishment. This requires a garnishment and transfer order, which must be applied for at the competent enforcement court – the district court at the place of residence of the parent liable to pay maintenance.
The following documents must be attached to the written application, for which a special form exists:
- an enforceable copy of the maintenance order, z.B. of the settlement or judgment
- a proof of service (proof that the enforcement order was served on the parent liable for support).
The garnishment and transfer order has the effect that the garnished part of the wage of the parent liable to pay maintenance can be claimed directly from his or her employer. The garnishment and transfer order is forwarded to the employer (called "third-party debtor" in the form). The latter must cooperate in the garnishment by deducting the garnishable part of the earned income (about this in a moment) from the wages and transferring this part directly to the dependent parent.
By the way, it is not necessary to request the debtor to pay the alimony prior to the enforcement of the alimony claim. This also applies if the debtor has always paid the owed maintenance voluntarily and on time (cf. BGH v. 02.12.2009 – Az. XII ZB 207/08).
4. allowances and deductibles in the case of wage garnishment
The amount that can be garnished is not always easy to calculate. When garnishing wages – as is always the case with the enforcement of monetary claims – the garnishment exemption limits (allowances) of the Code of Civil Procedure (more precisely: the garnishment table according to § 850c ZPO) must first be observed. This is because the garnishee must have enough left over to be able to cover his or her own living expenses and not have to rely on state assistance (e.g., a social security contribution) as a result of the garnishment.B. basic income). The garnishment table therefore shows the amount that can be garnished from the parent liable for maintenance in any case. If the maintenance claim exceeds the attachable amount, only this partial amount can be claimed from the other parent.
There is an important exception for the garnishment of maintenance claims: If it is a matter of direct maintenance claims (legally stipulated maintenance payments), the entitled maintenance creditor (e.g. the parent obliged to pay maintenance) can demand the garnishment.B. the ex-wife) claim even more money than provided for in the garnishment table. The obligated debtor (z.B. ex-husband) must then only have enough money left over to cover his or her own necessary maintenance (deductible) (§ 850d Para. 1 S. 2 ZPO). The provisions of §§ 850d and 850a of the German Code of Civil Procedure (ZPO) contain further specifications for calculating the amount that can be garnished – in this case, it is advisable to consult a family law specialist.
There are two important aspects to note regarding this garnishment privilege:
- The garnishment privilege according to § 850d ZPO is only granted upon explicit request
- If the wage garnishment concerns further claims in connection with maintenance claims (e.g., a claim for a reduction in the amount of maintenance), the wage garnishment must be granted.B. Reimbursement of costs against the ex-partner from maintenance proceedings that have already taken place), the enforcement privilege does not apply (BGH v. 09.07.2009 – Az. VII ZB 65/08). Thus, only direct maintenance claims are covered – otherwise the garnishment table applies.
In summary, the following can be said about the enforcement of maintenance titles:
- If you want to enforce maintenance claims against your ex-partner, you can do this by garnishing your wages. The maintenance claim is then paid directly by the employer of the ex-partner liable to pay maintenance.
- In order to enforce the maintenance claim, i.e. to enforce it by way of compulsory enforcement, an enforceable maintenance title is required, e.g. from a judgment, an enforceable deed or a settlement.
- For a wage garnishment, a garnishment and transfer order is required.
- More money can be claimed for immediate child support than normal garnishments when applied for.
- Other claims (e.g.B. reimbursements) are enforced according to the usual garnishment exemption limits.
6. Practical tip
Anyone who obtains an enforcement order for maintenance claims raises the statute of limitations for maintenance claims from three to 30 years (so-called. enforcement limitation period). Maintenance can therefore also be (subsequently) demanded if the ex-partner liable to pay maintenance has "come into money" again.
As always, the following applies to the amount of the garnished wages: trust is good – control is better! This is especially true for smaller employers, where the calculation and payment of wage garnishment amounts may not occur as often as in large companies and corporations. The enforcement privilege for maintenance claims, to which the normal garnishment table does not apply, is often not as common as a "normal" wage garnishment. By the way, the garnishment table should not be confused with the "Düsseldorf table": In the latter, it is first determined how much alimony must be paid in the first place.