Maintenance Agreement: Content, Requirements and Legal Situation

The conclusion of a child support agreement between parents is not mandatory under Swiss law. However, it provides an opportunity for parents to proactively and consensually regulate the most important questions regarding their child's situation in the event of a separation or divorce. Therefore, a child support agreement generally deals with issues related to:

• Childcare arrangements (sole or alternating custody)
• How and to what extent maintenance is to be paid
• If applicable, the modalities for exercising visitation rights

The child support agreement is a precautionary measure to address all questions that could affect the (financial) security of the child at the time of separation. By agreeing on the conditions for fulfilling maintenance before a potential separation, parents avoid making such decisions in the emotionally charged context of a breakup. This serves the security of both the parents and the child.

It should be noted that this type of agreement is not tied to a marriage contract and can therefore also be concluded between the parents of an unmarried couple. Likewise, for the agreement to be effective, it must be validated by the child protection authority (Art. 287 CC).

While concluding a child support agreement itself is not legally required, Article 287a of the Civil Code provides its contents insofar as maintenance contributions are specified. Moreover, it is advisable to precisely document all the consequences of a separation regarding maintenance and parental care.

Maintenance and Custody Conditions

The main purpose of the child support agreement, as the name suggests, is to determine who is responsible for child maintenance in the event of a separation or divorce. According to Article 276 of the Swiss Civil Code, both parents are responsible for the upbringing, care, and financial support of the child. However, parents can decide otherwise in a contract in the event of separation. Thus, the child support agreement can stipulate the payment of alimony to the parent with custody of the child by the other partner.

Since January 1, 2017, child support can be divided into two categories. One is ensuring financial support until the child reaches adulthood (cash maintenance), and the other is compensating for potential income losses due to sole parental care. Both aspects can be regulated in a child support agreement. Cash maintenance is used to cover expenses for food, housing, leisure, clothing, insurance, and education of the child. Caregiver maintenance, on the other hand, aims to financially compensate the parent who primarily takes care of the child and whose employment has been significantly restricted as a result.

Conditions for Personal Contact (Visitation and Access Rights)

The child support agreement also helps clarify visitation and access rights after a separation. Swiss law generally assumes that both parents, regardless of whether they were married or not, retain custody of their child after a separation or divorce (Article 296 CC). They must then share custody and, if necessary, care for their child alternately and can jointly agree on the most suitable maintenance arrangement.

However, it is also possible for parents or the court to decide otherwise and grant sole custody to one parent. This is now a rare measure. Even if only one parent has custody of the child, the other parent usually retains access rights in the best interest of the child. In such a case, the law stipulates that visits in the sense of access rights do not constitute a caregiving share that would affect maintenance.

If you have decided to draft a maintenance agreement with the help of a lawyer, prepare the documents required for regulating the various questions of child maintenance before the first meeting. To have your agreement validated by the child protection authority, you must present the following documents, among others:

• Proof of income
• Proof of maintenance payments to other children
• Tax returns and assessments from the previous year
• Description of the care and custody situation – current and, if possible, future
• Rental contract or proof of home ownership
• Health insurance evidence or policy

The conclusion of a child support agreement is not mandatory, regardless of whether the child's parents are married or not. However, child support agreements are generally considered suitable for parents in any civil status. By concluding such an agreement, questions about the whereabouts and future of the children can be addressed calmly and without the emotional strain of a separation or divorce.

When Is a Child Support Agreement Legally Valid?

For the child support agreement to be legally valid, the parents must mutually agree on its content and then submit it to the child protection authority at the child's place of residence for approval (Art. 287 Para. 1 CC). Any subsequent changes to the agreement must also be confirmed by the same authority. If the parents cannot agree on the content of the child support agreement, they can go to court.

The court ensures that the agreement contains at least the following points according to Article 287a CC:

• Clarification of the parentage relationships of all parties involved (mother – father – child)
• The assets of both parents and all children used for the calculation
• Which child is to receive what amount
• Any deficits to adequately cover maintenance
• Whether and to what extent adjustments due to potential changes in living costs will be made

Exemption From Maintenance Obligations Through an Agreement

A parent can waive their maintenance claim in advance. However, this is not possible through the child support agreement. If the agreement contains a clause that excludes child support, the child protection authority will not approve it. The payment of maintenance ensures that the child's basic needs are met by the parents and is therefore a fundamental right of the child (Art. 289 CC).

Can a Child Support Agreement Be Changed?

A child support agreement is a document that regulates the future care and support of the child. Therefore, it is based on assumptions that may not correspond to the situation of the parents or the child at the time of separation or divorce. For this reason, changes to the child support agreement are permitted in the event of significant and permanent changes in circumstances. For example, the amount of maintenance can be changed or revoked at the request of a parent or the child (Art. 134 CC). It should be noted that any change must be confirmed again by the child protection authority.

Are There Templates for Child Support Agreements?

You can find numerous templates for child support agreements on the internet. However, it is not advisable to use these for drafting your own agreement. Such an agreement must meet many criteria to be approved by the child protection authority. A family law attorney can help you appropriately formulate such a document. Additionally, the attorney will assist you in clarifying certain legal aspects to ensure that your rights and those of your children are protected.