Can child maintenance obligations be transferred to the other parent? Changing a maintenance order after divorce

A divorce judgment settles the question of maintenance at the time it is made – but life after divorce rarely stands still. Children grow up, parents change jobs, move house, and the dynamics between them shift. Polish law provides for the variation of any maintenance order – including the transfer of the payment obligation to the other parent.

Table of contents

1. When can a maintenance order be varied?
2. What happens when care of the child passes to the other parent?
3. Can active involvement in the child’s life reduce maintenance payments?
4. How to apply for a change to the maintenance obligation
5. FAQ

When can a maintenance order be varied?

The legal basis for varying any maintenance order is Article 138 of the Family and Guardianship Code (Kodeks rodzinny i opiekuńczy), which provides that where circumstances have changed, either party may apply to vary a maintenance order. The concept of a change in circumstances is broad – it encompasses an increase in the child’s needs (justifying an increase in maintenance), a deterioration in the paying parent’s financial situation, an improvement in the entitled person’s situation, and above all a change in the care arrangements for the child.

A divorce judgment is therefore not final on this question. Any significant change in circumstances can be the basis for initiating new proceedings.

What happens when care of the child passes to the other parent?

The typical post-divorce picture looks like this: the child lives with one parent, and the other pays maintenance. But what if the situation is reversed – and the other parent takes over day-to-day care of the child?

The answer follows directly from Article 135 § 1 of the Family and Guardianship Code. When assessing the amount of maintenance, the court takes into account, among other things, each parent’s personal contribution to the child’s upbringing. The parent who looks after the child on a daily basis contributes their time, effort, and engagement – and the law recognises this as the equivalent of a financial maintenance payment.

Where the court therefore varies the care arrangements and the parent who was previously paying maintenance takes over day-to-day care, the roles are reversed: the other parent becomes the person obliged to pay. This change, however, requires a formal court order – the child simply moving in with the other parent in practice is not sufficient.

Consider a scenario where, some years after the divorce, the mother is no longer able to provide day-to-day care for personal or professional reasons, and the father – who had been paying maintenance – takes on that role. Where the family court finds that the change is permanent and in the child’s best interests, it may vary the existing arrangements and, as a consequence, shift the maintenance obligation to the mother.

Can active involvement in the child’s life reduce maintenance payments?

Yes – and this is something many parents are unaware of. Article 135 § 2 of the Family and Guardianship Code expressly provides that the maintenance obligation may be discharged in whole or in part through personal efforts to maintain or raise the child.

This means that even where the child formally lives with one parent, the other – the parent paying maintenance – may apply to have the payments reduced if they are actively and regularly involved in the child’s life: spending a significant amount of time with the child, covering day-to-day expenses during contact, and participating in the child’s upbringing. The court may then find that part of the maintenance obligation is being fulfilled “in kind” and reduce the financial payment accordingly.

In our experience, parents often fail to document their involvement in the child’s life sufficiently. Yet keeping a contact diary, retaining receipts for expenditure on the child during visits, and witness testimony can all make a real difference in proceedings to vary a maintenance order.

How to apply for a change to the maintenance obligation

An application to vary a maintenance order is directed to the family and juvenile division of the district court (sąd rejonowy, wydział rodzinny i nieletnich) for the child’s place of residence. Either party may apply – the entitled person (seeking an increase) or the obliged person (seeking a reduction or termination). The value of the claim is calculated as the total of the payments for one year, and the court fee is determined on that basis.

The application must establish that since the previous order was made there has been a significant change in circumstances justifying the modification of the obligation. The more precise and well-evidenced the change, the stronger the applicant’s position in the proceedings.

FAQ

Can maintenance be ordered against a parent who was previously receiving it? Yes. Where the court varies the care arrangements and the child begins living with the parent who had been paying maintenance, the other parent becomes the person obliged to pay. This requires a formal court order.

How long do proceedings to vary a maintenance order take? The duration depends on the complexity of the case and the court’s caseload. Where the change is uncontested, proceedings can conclude relatively quickly. Contested cases – where one party challenges the variation – typically last several months to over a year.

Is it enough for the child to decide to move in with the other parent? No – the child simply moving in with the other parent does not automatically change the maintenance obligation. A formal court order establishing the change in circumstances and varying the existing arrangements is required.

Will the court always reduce maintenance if the other parent spends a lot of time with the child? Not automatically. The court assesses the overall picture – the extent of the parent’s involvement, the actual costs borne by each parent, the child’s needs, and both parties’ financial means. Active involvement is, however, a circumstance the court takes into account when determining the amount of maintenance.

I am a foreign national – do these rules apply to my situation in Poland? Yes. Where the child is habitually resident in Poland and Polish law governs the maintenance obligation, the variation procedure described in this article applies regardless of the parties’ nationality. EU Regulation No 4/2009 on maintenance obligations may be relevant where the parties have connections to multiple EU member states. Legal advice on any cross-border elements of the situation is recommended.

Read more about how to apply to reduce maintenance payments and what documents are needed → [link to relevant page]

Your situation has changed since the divorce judgment and you are wondering whether the maintenance arrangements can be varied? Call: +48 531 335 713 or email: kancelaria@prawnikodrozwodu.pl

This article is for general informational purposes only and does not constitute legal advice. Every family law case is individual and requires analysis of the specific facts and documents involved. The law firm accepts no liability for actions taken on the basis of the information contained in this article. For advice tailored to your situation, please contact our office.

Kancelaria Prawa Rodzinnego (Family Law Office): Adwokat Michalina Koligot, Adwokat Marta Krzyżanowicz, Adwokat Anna Konrady, Radca prawny Joanna Jędrzejewska ul. Mickiewicza 18a/3, 60-834 Poznań | tel. +48 531 335 713 | kancelaria@prawnikodrozwodu.pl | www.prawnikodrozwodu.pl