Spousal support is one of the most complex areas of family law. A distinction must be made between separation maintenance and post-marital maintenance. Both are linked to different requirements.
When a marriage fails, it often has far-reaching financial consequences. One of the most important is the so-called spousal support. The question of the requirements and the amount of the maintenance claim is one of the most complex issues in family law. We give an overview.
In the case of spousal maintenance, a distinction must first be made between what is known as separation maintenance and post-marital maintenance. Very different requirements apply to both and both must be asserted independently of one another.
I. The separation keep
1. What is separation maintenance?
The right to maintenance separation is based on § 1361 BGB. It can exist if a couple gives up their domestic community and cohabitation in the face of an upcoming divorce, so the spouses separate. According to German law, every divorce usually has to be preceded by a so-called separation year. Without a previous year of separation, a divorce is only possible in exceptional cases according to the BGB. For the time between separation and divorce, the separation maintenance should ensure the financial security of both partners. As long as a marriage is not divorced, the spouses are also financially responsible for one another – this includes ensuring their livelihood.
Remember: After a legal divorce, maintenance of separation can no longer be claimed. Anyone wishing to continue receiving benefits must apply for post-marital maintenance. This is linked to completely different requirements.
2. What does separation maintenance require??
Separation maintenance initially requires that marriage still exists, domestic community but was dissolved. If a spouse is the sole earner or has a significantly higher income than the partner, he or she can apply for separation maintenance. If, on the other hand, both earn about the same amount, neither spouse can demand maintenance payments from the other.
If a spouse has not worked or only worked to a limited extent so far, he is not obliged to provide for himself even during the separation period. The reason: During the separation year, it is still possible for the spouses to reconcile and decide to live together again. Therefore, the spouse who is not working or earning less should not be required to completely change his life during this time and to take up full-time employment, for example. Rather, he should initially continue to be cared for as he was before the separation. Exceptions apply if he can be reasonably expected to take care of himself according to his personal circumstances. For example, cases are conceivable in which an initially working spouse stopped working immediately after marriage and both separated after a very short marriage – for example after a few weeks.
3. The calculation of separation maintenance
The amount of separation support depends on the marital circumstances. The decisive factor is the income that shaped the standard of living during marriage.
Important to know: Funds that were used for other purposes during the marriage, for example in investments, are not taken into account. In contrast to post-marital maintenance, it is not possible to lower the separation maintenance to an adequate living requirement.
The amount of separation support is limited by the performance of the paying spouse. They must have at least a deductible of currently 1,200 euros per month for their own living expenses. In this context, one speaks of the so-called appropriate deductible. It is higher than the necessary deductible of only 1,080 euros that a person liable for maintenance is entitled to for child maintenance.
The separation maintenance consists of the following individual items:
- The so-called Elemental maintenance for rent, living expenses, etc.,
- the Preventive maintenance for old-age insurance etc. as well as the costs for health and nursing care insurance, provided that there is no family co-insurance. However, was the wife e.g. previously insured through her husband in statutory health insurance, she will continue to do so during the separation period until the legal divorce.
- Depending on your personal situation, you can also get a more need for vocational training or advanced training, illness or special expenses arising from the separation (moving, etc.).
For the calculation of elementary maintenance, the net income of the maintenance debtor must first be adjusted. Ongoing fixed costs are to be deducted that are not already part of the deductible as living expenses. These include, for example, occupational expenses. Repayment rates for loans taken out during marriage can also be taken into account.
Unlike child maintenance, there is no table with guidelines for minimum rates for separation maintenance. However, the so-called Düsseldorf table is used for orientation for the calculation. In southern Germany, instead, the maintenance guidelines of the upper courts there are used. Generally, a non-employed person is entitled to elementary maintenance in the amount of 3/7 of the spouse’s adjusted net income. If both work, the entitlement is 3/7 of the income difference. In southern Germany, 45 percent of the adjusted net earned income is used instead of 3/7.
4. Duration and limits of separation maintenance
The right to maintenance support is limited to the time from the de facto separation until the divorce decree becomes final. It may well continue beyond the prescribed separation year if the divorce proceedings take longer. Has the separation year expired?, to meet a previously not or only marginally employed person often already has employment obligations. Loud. According to current case law, every spouse should begin to make ends meet after the separation year – even if the marriage has not yet been divorced. This applies at least to young, healthy people who have no children to look after.
If you still do not work or only work to a small extent and instead want to receive separation support, you have to explain why you cannot work fully, otherwise you will face maintenance cuts. Apart from the legal force of the divorce, the separation support ends when the spouse reconciles and forms a domestic community again.
Separation maintenance can be ruled out in individual cases due to gross inequality. This applies, for example, if the beneficiary is guilty of a crime against the obligated person or has deliberately caused his own need.
On the other hand, voluntary waiver of separation support, for example in a marriage contract, is not possible!
II. Post-marital maintenance
1. What is post-marital maintenance??
If the divorce is final, there is no separation maintenance. Post-marital maintenance can take its place if the conditions for this are met. In contrast to separation maintenance, it cannot be claimed solely because one of the divorced has no or a lower income. § 1569 of the Civil Code rather writes the Principle of personal responsibility firmly: After the divorce, it is incumbent on each ex-spouse to take care of their maintenance and to find an appropriate position that corresponds to their abilities, age and state of health. Only if he is unable to do this can he be entitled to maintenance against his ex-partner.
In a nutshell: Post-marital maintenance is only given to those who are in need. Conversely, the ex-husband must be efficient.
The application for post-marital maintenance or divorced maintenance can either be filed with the divorce or filed in a separate procedure. The applicant must prove that he is entitled to post-marital maintenance.
Important for the practical enforcement of the maintenance claim: the divorced spouses are obliged to provide each other with information about their income and assets upon request. In particular, the dependent can require the ex-spouse to disclose his income situation on the basis of income tax assessments and pay slips (for self-employed persons: tax assessments, income excess calculations, etc.). This right to information can also be enforced in court.
2. What does post marital maintenance require??
In contrast to separation maintenance, there must be special reasons for a claim to post-marital maintenance at the time of the divorce, which are precisely defined in the Civil Code (BGB). The most common and practically significant case is maintenance due to the care of small children together. There are also other maintenance reasons, such as illness or training.
a) Child care support
If a parent is unable to work after divorce because of the care of small children, he can claim childcare support for at least three years after the birth of the child.
During this time, he does not have to put the child in a crib and work, but is free to stay at home. In the case of children over the age of 3, the caring parent, on the other hand, has to go back to work, but not necessarily full-time. For example, if he works part-time, the child may be entitled to maintenance in a correspondingly reduced amount beyond the child’s third year of life. This can be justified in particular if the person concerned has to take care of several small children at the same time, even if they are older than three years, or if there are no childcare offers outside of the home.
In individual cases, there may even be entitlement to childcare support regardless of childhood, if there are special reasons for this, for example in the case of sick or disabled children with increased childcare needs. All of this must then be proven exactly.
b) Maintenance due to age
A divorced person who is no longer expected to work due to his age at the time of divorce or the end of the upbringing of a child has the possibility to claim maintenance due to age. There is no fixed age limit for this – The person concerned does not necessarily have to have reached the statutory retirement age. Rather, it is crucial that precisely because of his age he cannot find a job, which he may have to prove. Spousal maintenance due to old age can seamlessly follow other maintenance reasons, for example previous childcare maintenance.
c) Maintenance due to illness or infirmity
Anyone who demonstrably cannot work due to illness also has one claim for post-marital maintenance. It is of crucial importance when the disease occurred: in principle, it must already exist at the time of the divorce!
If an illness occurs later, there will only be maintenance due to illness if maintenance has already been received by then, for example due to the care / upbringing of a common child, training or further education or due to unemployment. If these requirements are not met, you will at a illnesses that occur for a long time after the divorce can only be granted a maintenance claim in exceptional or hardship cases. Maintenance would then have to be granted for reasons of equity, see below.
d) unemployment maintenance
If a divorcee does not find a suitable job after the divorce, he can also be entitled to spousal support against the ex-partner. To do this, however, he has to prove that, despite intensive efforts, he cannot find a job, for example on the basis of applications sent.
Important to know: This maintenance reason only applies if there is no entitlement to childcare maintenance or maintenance due to old age or illness.
e) top-up maintenance
If the divorced person’s income, despite employment, is not sufficient to maintain the standard of living that he is used to during marriage, he may be entitled to supplementary maintenance. However, this is only an option if another reason for maintenance does not already apply. The prerequisite is that his ex-husband has a higher income and that this had already shaped marital life. The less earners are to be protected from social decline.
However, the previously discussed principle of personal responsibility, according to which each ex-spouse has to take care of his or her own maintenance after the divorce, means that top-up maintenance is increasingly rarely awarded by the courts. It is often justified for long-term marriages and for mothers who have taken care of children and thereby accepted marriage-related disadvantages for their own professional advancement. In contrast, he is usually denied, in particular to childless people who were double earners during the marriage. In practice, top-up maintenance is usually only granted for a limited time.
f) Education and training or retraining
Sometimes a spouse has not started training or has dropped out due to marriage. If he would like to make up for this so that he can find a suitable job and take care of himself after graduation, he can also claim spousal support for this time. The prerequisites are that he or she starts training promptly after the divorce, that successful completion is expected and that the usual training period is not exceeded.
g) Maintenance for reasons of equity
Finally, as already mentioned above, in individual cases and under strict conditions there can also be a right to spousal support for so-called equity reasons. This means the following:
- There must be serious reasons why the person concerned cannot be expected to work.
- A refusal of maintenance taking into account the interests of both sides must be grossly unfair, that is, it must contradict the general feeling of justice.
It must be checked in each individual case whether these requirements are met. Of great practical importance are cases in which the person concerned does not have any children with the ex-spouse, on the basis of which he could claim child support, but he has to look after his own child, which is not a marital child.
Important to know: The respective maintenance reason (a-g) must be regularly available at the time of the divorce. However, maintenance reasons can also change. Then the new maintenance reason must seamlessly follow the previous one, effectively replacing it.
3. Calculation of post-marital maintenance
The amount of post-marital maintenance is determined by the marital relationships at the time of the divorce. The decisive factor is the income that shaped the standard of living during marriage. For this reason, for example, everything that was used from income to build up assets or flowed directly into debt repayments is therefore also left out here and has therefore not been available to the spouses for their lifestyle in marriage. For the calculation of maintenance, reference can largely be made to what has already been done in this regard for separation maintenance. The so-called Düsseldorf table can also provide an orientation here. Even with post-marital maintenance, i.Ü. the deductible of the maintenance debtor is taken into account. You only have to pay if you are efficient without endangering your own reasonable livelihood.
On the other hand, since the dependent must be in need, i.e. must not be able to maintain the standard of living that they are used to from their own income, they do not only have to have their working income credited. Rental income, capital income that increase his assets, etc. are also taken into account. Not inheritances or gifts that he receives.
Particularities apply if a divorced equal for several dependents must arise, e.g. not only has to pay for his ex-husband, but also for children (child support according to the Düsseldorf table). In such cases, income may not be sufficient to provide for everyone. Then priorities have to be set. The law sees one for several dependents ranking Before: Thereafter, the right to spousal support for divorced spouses is subordinate to child support for minor unmarried children, for example. Among several ex-spouses, those who are dependent on caring for a child or who can look back on long-term marriages are better off than ex-spouses who do not meet these requirements.
4. Duration and limits of post-marital maintenance
The law does not specify an exact period over which an entitled spouse can claim maintenance. Of course, there is no need for maintenance, for example if a child is three years old and there is no longer any child support. Even if a person who is actually liable for payment is no longer able to perform, his maintenance obligation can be eliminated.
In certain cases, the maintenance claim expires by law. This applies to the remarriage of the beneficiary, the establishment of a registered civil partnership or the death of the dependent – but not when the dependent is killed. In this case, the maintenance obligation is transferred to the heir.
Like separation maintenance, post-marital maintenance can also be due to gross inequity limited or excluded. In addition to the reasons already mentioned above, in practice this is particularly important for marriages of extremely short duration or in cases in which the person who is actually the dependent is now in a solidified new cohabitation.
Post-marital maintenance can also – even if it is not due gross Unfairness is to be refused or limited – for other reasons of equity, at least limited or reduced. However, there are limits, particularly if the dependent has had disadvantages due to marriage. A classic example of this is the ex-wife, who has had fewer opportunities for advancement and a lower salary due to the time spent raising children. Your options to provide for your own maintenance have then deteriorated as a result of the marriage and your maintenance should therefore generally not be limited. Even taking into account the long duration of a marriage, a reduction in the maintenance claim may not be permissible.
In contrast to separation maintenance, divorced women can also do without post-marital maintenance. Such maintenance agreements are possible both in marriage contracts and in divorce proceedings.
III. Diagram: Differences between separation maintenance and post-marital maintenance
Separation maintenance and post-marital maintenance are two fundamentally different things, are linked to different requirements and must be claimed independently of one another.
- Entitlement to maintenance support can exist for the period from the de facto separation to the legal force of the divorce decree.
- If a spouse has not previously worked, he is not obliged to do so even during the separation period.
- After the divorce, the principle of personal responsibility applies. Post-marital maintenance is only given to those who are in need and to whom there are certain statutory maintenance reasons at the time of the divorce.
- Spousal support, i.e. Both separation and post-marital maintenance may be limited or excluded for reasons of justice, or limited or reduced.
- A voluntary waiver of separation maintenance is not possible. In contrast, divorced women can do without post-marital maintenance.
- If there are several dependents, the entitlement to spousal maintenance is subordinate to that to child support for minor unmarried children.
V. Practical tip
In some cases it may be desirable to adjust a post-marital maintenance that the family court once determined because living conditions have changed.
It is conceivable on the part of the maintenance debtor that he suddenly earns significantly less, for example after changing jobs. Then he has the opportunity to file a so-called amendment complaint with the family court. On the other hand, if the person liable for maintenance can look forward to unforeseen increases in income, he does not have to let the person entitled to maintenance participate in it, because the now higher income had not shaped marital living conditions.
Conversely, the living conditions of the Dependents, A distinction is made as follows: Since the date of the divorce is decisive for the right to spousal support, a later, unforeseen deterioration in the income situation can usually no longer be taken into account. An amendment complaint can only be successful in exceptional cases. In contrast, increases in income of the person entitled to maintenance can lead to the loss of the maintenance reason. In most cases, the maintenance decision provides for a time limit for such cases. If this is not the case, a maintenance claim can also help the person liable for maintenance.
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