Establishing the level of child maintenance is one of the most difficult and most contested issues in family law matters. The law does not specify any particular amount or calculation formula – the court determines maintenance individually in each case. It is worth understanding what factors the court takes into account and how to prepare.

The Legal Basis – Article 135 of the Family and Guardianship Code

Article 135 § 1 of the Family and Guardianship Code provides that the scope of maintenance obligations depends on the justified needs of the entitled person and on the earning and financial capacity of the person obliged to pay.

Both conditions carry equal weight – a child’s high level of need alone is not sufficient where the parent genuinely cannot meet it. Conversely, a parent’s high earning capacity combined with a child’s low needs does not automatically mean high maintenance.

Who Has a Maintenance Obligation

The parental maintenance obligation towards children arises from Article 133 § 1 of the Family and Guardianship Code. Parents are obliged to provide maintenance for a child who is not yet able to support themselves independently – unless the income from the child’s own assets is sufficient to cover the costs of their maintenance and upbringing.

This obligation does not automatically expire when the child reaches adulthood – it continues for as long as the child is unable to support themselves independently, for example during university studies. An exception is provided by Article 133 § 3: parents may decline maintenance obligations towards an adult child where they would involve excessive hardship for the parents, or where the child is not making efforts to become independently self-sufficient.

The First Condition – the Child’s Justified Needs

A child’s needs cover everything necessary for their proper physical, psychological and social development. In practice this includes:

Basic living costs – food, clothing, footwear, hygiene products.

Housing costs – rent, utilities, furnishing the child’s room. The portion of housing costs attributable to the child is taken into account.

Education costs – fees for private nursery or school, textbooks, school supplies, private tutoring, school trips.

Health costs – medical appointments, medication, specialist treatment, rehabilitation, glasses, orthodontic braces.

Extracurricular activity costs – sport, music, foreign languages, other activities developing the child’s interests.

Recreation and leisure costs – holiday trips, cultural activities, entertainment.

Special costs – for a child with a disability or chronic illness, needs may be significantly higher.

In preparing for maintenance proceedings it is worth drawing up a detailed breakdown of monthly expenditure on the child by category. The more specific and documented the breakdown, the easier it is to demonstrate the justified level of need.

What Does Not Affect the Level of Maintenance – Article 135 § 3

An important rule that parents often do not know: the scope of maintenance obligations is not affected by benefits received by the child or parent from other sources. This applies in particular to the child benefit (800+), family benefits, maintenance fund payments subject to recourse, and the parental supplementary benefit.

This means that the fact that a parent receives the 800+ benefit cannot be used as a basis for reducing the other parent’s maintenance obligation. State benefits do not discharge the maintenance obligation.

The Second Condition – the Obliged Parent’s Earning and Financial Capacity

Earning capacity means not only actual earnings but the capacity the obliged parent has or could have with due diligence. The court takes into account education, professional experience, age, state of health and the labour market situation in the relevant profession.

An important rule from Article 136: where within the three years before the maintenance claim was brought the obliged parent without good reason waived a property right, allowed it to be lost, gave up employment or changed to less profitable employment, the court will not take the resulting change into account when determining the level of maintenance. This means that deliberately reducing income or disposing of assets on the eve of maintenance proceedings will not benefit the obliged parent.

The obliged parent’s assets are also taken into account: property, savings and other components of their estate.

Personal Care of the Child – Article 135 § 2

Article 135 § 2 of the Family and Guardianship Code provides that the performance of the maintenance obligation towards a child may consist wholly or partly of personal efforts towards the child’s maintenance or upbringing.

This means that the parent who provides direct care for the child fulfils part of the maintenance obligation through that care itself – cooking, taking the child to activities, helping with schoolwork. The other parent, who does not provide direct care, fulfils their obligation primarily through financial contributions.

Where care is shared equally, the calculation is more complex – maintenance may be lower or not ordered at all where both parents bear comparable costs of the child’s upbringing.

How to Calculate the Right Amount – a Practical Approach

There is no official maintenance calculator. The starting point should be the monthly cost of the child’s upbringing – the sum of all justified expenses. That amount is then divided proportionally between the parents, taking into account each parent’s earning capacity and the extent of care each provides.

In practice every case is different and the calculation can vary significantly depending on the circumstances. It is therefore worth consulting a lawyer before filing a claim, who can help assess the realistic prospects of obtaining a particular amount.

Changing the Level of Maintenance – Article 138

Maintenance is not fixed permanently. Article 138 of the Family and Guardianship Code provides that where circumstances change, either party may seek a change to the court order or agreement concerning the maintenance obligation.

A change of circumstances covers both an increase in the child’s needs (illness, a change to a fee-paying school, additional activities) and a change in a parent’s earning capacity (job loss, illness, but also promotion and an increase in income). Either party may bring a claim for an increase or reduction in maintenance.

Maintenance for a Previous Period – Article 137

Maintenance claims become time-barred after three years (Article 137 § 1). Unmet needs of the entitled person from the period before the claim was brought are taken into account by the court in awarding an appropriate lump sum – in justified cases the court may order that the awarded amount be paid in instalments (Article 137 § 2).

A Settlement Instead of a Judgment

Parents may agree on the level of maintenance by way of a settlement – before the court or before a mediator. A court settlement has the force of an enforcement title, meaning enforcement proceedings can be brought on its basis in the same way as on the basis of a judgment. An out-of-court settlement not approved by the court does not carry that force.

Agreeing maintenance by way of a settlement is faster and less stressful than court proceedings. It is worth considering where both parties are able to reach an agreement.

Do you need help with a maintenance claim? Call: +48 531 335 713 or write to kancelaria@prawnikodrozwodu.pl

This article provides general legal information and does not replace individual legal advice in a specific case. Every family law matter requires analysis of the specific circumstances and documents. The law firm accepts no liability for actions taken on the basis of the information contained in this article. For legal advice tailored to your situation, please contact our law firm.

We invite you to contact the Family Law Practice: 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