DR. JÖRG SCHRÖCK

BAföG & Child Support

State Training Aid vs. Training financing by the parents

As a matter of priority, children need to use state aid to provide training?

BAföG-Services are maintenance-relevant > Income of the child in education. BAföG benefits reduce the > Need of the child and thus the right to > Educational support to the parents . BAföG must use the child as a priority; even if it is only as Student loans (BGH, judgment of 19.06.1985 – IVb ZR 30/84). If the child fails to take advantage of BAföG, this leads to the imputation of > notional income equal to the possible BaföG claim (see. OLG Schleswig-Holstein, Judgment of 24.08.2005 – 15 UF 75/05). If the student receives a scholarship, this too as income of the dependent person on the > Account for maintenance needs.

author: Dr. Schrock – Law Firm for Family Law

signpost for training maintenance & BaföG

Who pays? Parents, state or child?
For which training BAföG exists?
Crediting of the BAföG on the training maintenance
Calculation of the BAföG claim
Reform 2019

Left & literature

For which training BAföG exists?

As long as children are in > general education and live with one parent, there is no entitlement to BAföG benefits. Basically there is > BAföG only for the visit of vocational schools. An exception to this is found in > § 2 para. 1 no. 1 BAföG. Thus, the grant of BAföG an indication that the training does not take place at a general education school within the meaning of § 1603 Abs.2 S.2 BGB, but at a vocational school. Who visits a type of school that is one Training center according to § 2 Abs.1 No. 2 to No. 6 BAföG is not in general education. Regulations concerning the attendance of (secondary) general education schools can be found in §§ > 2 para. 1 no. 1 BAföG, 26 para. 2 no. 1 BSHG. According to § 2 Abs. 1 Nr. 1, Abs. 1 a BAföG, training support is provided, inter alia, for the attendance of secondary general education schools, if the apprentice does not live with his parents and the other requirements of § 2 BAföG are fulfilled. Paragraph 1603 (2), second sentence, of the BGB, on the other hand, makes provision for the case in which the adult, unmarried child in general education, lives in the household of his or her parents or a parent. With the attendance of higher specialized schools, academies and universities training assistance is now only as loan granted (§ 17 BAföG). The loan after BAföG is granted under very favorable conditions. The lack of interest and, moreover, the gentle rules on repayment make the burden of the post-graduate with a high level of training into professional life seem to be low.
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Crediting of the BAföG benefits on the training maintenance

(Quote) "In maintenance law, it may be up to the debtor to take out a loan to maintain his capacity (Senatsurt. NJW 1982, 1050). The same applies to the maintenance creditor. He has the opportunity to borrow to avoid being in need of maintenance. This obligation to self-help exists, of course, only to the extent possible (Senatsurt., NJW 1982, 1641, BGH, FamRZ 1966, 28, OLG Hamburg, FamRZ 1980, 912, Mutschler, in: RGRK, 12th ed., § 1602, no. 23, Palandt-Diederichsen, BGB, 44th edition, § 1602 note 2 b; Soergel-Lange, BGB, 11th ed., § 1602 § 3). Another restriction applies to underage unmarried children who, according to § 1602 Paragraph II BGB already the > Tribe of their assets and credit in the first place need not be used (see Göppinger-Wenz, UnterhaltsR, 4th ed., No. 1214). The Kl. Are however of age. (…) You (the parents) themselves apply according to the system of income and asset calculation in § 21 et seq. And § 26 et seq. BAföG in the amount of qualifying as training support loan amounts as non-compulsory (…).

(Principle) If the studying child fails to make reasonable use of a BAföG loan, this leads to the imputation of fictitious income in the amount of the possible loan entitlement and thus reduces the child’s need for maintenance. (No. 36)

There is no obligation, against refusal BAföG-To lodge an appeal

Is there a claim of the child? BAföG-Benefits, the entitlement to training financing by parents (> Training maintenance). As far as possible, this tension and the dispute about the right way to finance the education of the child should not be carried out on the backs of the children. That’s why there is BAföG in the way of a > Advance payment procedure (§ 36, 37 BAföG), if the trainee makes credible that his parents do not provide sufficient or insufficient education, and thus endanger the training – even taking into account the income of the spouse or life partner in the period of approval.

This form of temporary government interim financing (= advance payment procedure: § 36 BAföG) does not provide BAföG-Benefits that must be credited to the trainee on his maintenance claim against his parents. The Office for Educational Support may demand from the parents of the trainee amounts that have been paid to the trainee if they do not provide the maintenance amount payable under the Civil Code (§ 1610 et seq.) During the training. The claim is also possible retrospectively for the past, as far as Arnt provides retrospective services for training support. What requirements should be met when applying for advance payments for training support? OVG Lüneburg, Decision of 15.03.2018 –4 LA 231/16; Comments on it Wolfgang Conradis, in: ->NZFam 2018, 467. The Office for Training Support will not >Provide information on the calculation of the civil maintenance claim. If the BAföG office asks for information on the income of the parents, it makes little sense to legally defend themselves against the obligation to provide information (see OVG Lüneburg, Decision of 27.03.2018 – 4 ME 41/18). The actual existence and the height of one >under civil law maintenance claim are not examined in the context of the advance payment procedure.
The examination of possible civil maintenance claims of the trainee against his parents takes place in a separate procedure with the Land Office of Finance. If the trainee’s land claim for maintenance is not or not fully met by payment (on the part of the parent), the Office of Training Support will submit the matter to the trial authority of the competent Land, the State Office for Finance, after the end of the approval period. The State Office of Finance will then examine the existence and the amount of a civil maintenance claim in a separate procedure and therefore contact the potential maintenance debtor. Any objections to a maintenance obligation on the merits or amount may only be considered in this separate civil procedure. Only if a civil maintenance obligation is established, potential maintenance debtors are obligated to replace the predicted amounts. If there is no agreement, the dispute over the possible claim for reimbursement against the debtor will be brought before the family courts. The claim is in these cases according to § 37 para 6 BAföG from the due date, but at the earliest from the beginning of the month following the delivery of a transitional notice with 6% p. a. to pay interest.

Calculation of the BAföG claim

BAföG CALCULATOR on-line
With the BAföG CALCULATOR You can easily determine which Federal financial aid the student child can expect.

BAföG reform 2019

Higher subsidies (especially for housing costs), higher allowances: The Federal Council has finally adopted the BAföG reform. It will take effect on 1 August 2019. An overview of what will be improved can be found on the homepage of the Federal Ministry of Education and Research.
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the student grant in Austria is – compared to the BAföG in Germany – subordinate to the full-year maintenance. More on this -> HERE . Therefore, the entitlement to study allowance can not be used to reduce the maintenance entitlement of the child.

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