Right to family benefits for divorced parents

Introduction and key points of the decision

The Federal Finance Court (GZ RV/7103366/2025 of 10.02.2026) had to decide on the question of which parent is entitled to family benefits after a divorce if the child actually resides predominantly in the household of one of the parents. The decision confirms the previous legal ruling that the actual household affiliation is the decisive factor.

Background to the dispute and the point of dispute

After the parents’ divorce, the mother continued to receive family benefits and child support payments for three children. However, the eldest daughter remained with her father mostly from May 2024 onwards. Subsequently, the father applied for retroactively the recognition of family benefits. The tax office demanded the amounts claimed by the mother for the period from May 2024 to May 2025. The mother, however, argued that the daughter had continued to be registered with her, had provided numerous maintenance payments (clothes, school supplies, meals, etc.), and that court proceedings had not yet definitively resolved the question of her residence.

The principle of preponderance according to the Family Allowance Compensation Act

The BFG explained that under § 2, paragraph 2 of the FLAG, the entitlement to family benefits is primarily based on the child's household affiliation. It is crucial which parent the child actually lives with under a unified economic management. In particular, the regular place of overnight stays takes on considerable importance. The court clarified that neither the police report nor custody arrangements or court decisions regarding the future residence are decisive for the entitlement to family benefits. The decisive factor is solely the actual living situation in the respective calendar month. If the child is in two households simultaneously within a month, the principle of preponderance applies: the entitled parent is the one who lived with the child predominantly in the relevant month.

Assessment of evidence and concrete attribution by the BFG

In the specific case, the BFG based its assessment of the evidence primarily on the opinion of an aid organization, court records, and a residence schedule signed by the mother and her daughter. The records submitted by the mother were given less weight due to their inconsistencies. The judgment could only determine for the month of September 2024 that the daughter had resided predominantly with the mother. The family allowance was granted to the father for the remaining months of the relevant period.

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