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Maintenance obligation vs BaFöG payment

February 18, 2011 | 25,00 EUR | answered by RA Kristian Hüttemann

A friend of mine is divorced and unemployed. Her only son, who is 22 years old, has no income, lives with his mother (my friend), and is studying business administration. The father was ordered by the court to pay €500 in maintenance for his son. Now the son has applied for student support (Bafög) / loan for his studies and has been granted approximately €300 per month for a limited time. The father became aware of this and has reduced his maintenance payment by the amount of the Bafög.

Is this legal and allowed by the father?

After all, Bafög is ultimately just a long-term loan that the son will have to repay later. This would mean that the son would only be financing the underpayment/obligation from his father!

Thank you for your prompt response.

RA Kristian Hüttemann

Dear Customer,

Thank you for your inquiry, to which I would like to provide the following response based on the facts you have presented.

In principle, the receipt of benefits under the Federal Training Assistance Act is subordinate to any maintenance obligations that exist in favor of a trainee. Only if such primary maintenance payments are not applicable, the trainee is entitled to BAföG.

If the father of the trainee is obligated to provide maintenance payments, this maintenance claim takes precedence and displaces a claim for BAföG. In other words, this means that the father of the trainee is not entitled to arbitrarily reduce the maintenance payments.

If the father wishes to reduce his maintenance obligations, he must seek this through a corresponding modification request to the court. Until this is done, the father remains obligated to pay maintenance in the amount determined by the court.

Therefore, unilateral reduction of maintenance is not lawful.

I hope this provides you with a sufficient overview of the legal situation. If there are any remaining questions, please feel free to exercise your right to ask for clarification.

Best regards,
Kristian Hüttemann
Attorney