Divorce and maintenance: Overview
- Separation maintenance and post-marital maintenance must be assessed independently of one another.
- Post-marital maintenance can only be considered if a spouse cannot take care of himself due to his circumstances.
- Besides, only then Maintenance payments are made if the debtor’s capacity is also given because of his income.
Difference between separation maintenance and post-marital maintenance
The entitlement to separation maintenance ends at the time of the divorce at the latest. As the name suggests, the separation support refers explicitly to the period of the separation.
The post-marital spousal support is independent of the separation support and must also be claimed again or even sued.
Separation support is based on the premise that a spouse with little or no income does not fall into a financial hole due to the separation. This gives you the chance to make ends meet during the separation year and position yourself for the future after the divorce to take care of yourself.
Divorce and maintenance: Where can a maintenance obligation arise?
- Between spouses during a marriage
- Between registered life partners during the partnership
- Between spouses or life partners after the separation
- Between spouses or life partners after the divorce
- Between relatives (blood relationship)
- Between the parents of an illegitimate Child’s
divorce and maintenance: the principle of personal responsibility
According to § 1569 BGB, the principle applies that every spouse has the responsibility to take care of their maintenance after the divorce. Only when he is unable to do so is a claim to postmarriage maintenance against the other spouse.
Usually, the roles in marriage result from marriage-related Disadvantages, which can justify a maintenance claim. It used to be the rule that the woman gave up her job after the wedding and looked after the house and children.
In return, the husband took care of the spouses’ livelihood. Section 1570 BGB provides spousal support for a child’s care if the spouse cares for and raises the child for at least three years after birth.
However, if the marriage has remained childless, and the spouse continued to do his job after the wedding and only became unemployed during the separation, the general life risk applies.
Post-marital spousal support for an unemployed partner even after the divorce is, therefore, only Exceptional acceptable cases come into question if this partner has lost his job entirely without fault and remains unemployed even through no fault of his own. Anyone who would be able to take care of themselves is not entitled to maintenance.
By the way: The use of online divorce is particularly recommended for mutually acceptable divorces. So you can save time and money and avoid long journeys. An example from various online providers is the BRIGITTE cooperation partner Legalbird.
Requirements for maintenance:
- Needs: Needs describes the inability to maintain oneself appropriately following § 1602 BGB. The livelihood can be met adequately, neither from practical work nor from existing assets.
- Efficiency: A person who can provide maintenance without endangering his reasonable care is considered efficient. The productivity itself is based on the actual income and the proper use of one’s workforce. A fictitious payment can also be calculated as a basis, or usable assets can be included.
Forms of need
After divorce, each spouse must take care of himself. There are exceptions primarily for the care of children together. There are also exceptional cases due to age, illness, ailments, unemployment maintenance, top-up maintenance, training maintenance, or divorced maintenance for reasons of equity.
- Childcare maintenance: Those who cannot work after divorce due to small children are entitled to childcare maintenance (§1570 BGB ). This applies for a minimum of three years after the child is born. After that, the person receiving care is obliged to work again, even if not full-time.
- Maintenance due to unemployment: As already mentioned, the care must claim spouse can demonstrate that he cannot find a new job. This form of spousal support is only an option if it is not due to age or illness.
- Top-up support: If a spouse has a higher income that can significantly impact the marriage’s living conditions, top-up maintenance is optional. This also applies as a supplement to other forms of care.
- Maintenance due to illness: If someone cannot work due to illness, care is optional. The disease can be proven with medical certificates.
- Training support: Those who have broken off or not started training shortly before or during their marriage can receive maintenance until a new training course is completed in the event of divorce. However, he has to start or continue an apprenticeship as soon as possible. This training should also be necessary for the spouse to gain a foothold in the labor market.
- Maintenance for reasons of equity: This form of care can be considered if other serious reasons are preventing a spouse from gainfully employed and making it grossly unfair would be to pay no maintenance.
Calculation of maintenance
Post-marital maintenance is primarily determined by the family courts based on the corresponding higher regional courts’ maintenance law guidelines. First, the maintenance-relevant income of both spouses must be determined, analogous to separation maintenance.
Taxes, social security contributions, work-related expenses amounting to 5 percent, and expenses for old-age provision are deducted from gross income up to 23 percent of gross income. According to the Düsseldorf table (see below), this must also be removed if the ex-partner pays child maintenance.
If the divorced spouse who is liable for maintenance is not employed, this results in the care of three-sevenths of the adjusted net income (just under 43 percent). For the deductible, the amount of 1,200 euros applies as security. However, the specific calculation of maintenance is always different and depends on the individual case.
If maintenance claims are not fulfilled voluntarily, they can be claimed in court. The jurisdiction lies with the family courts, which are also responsible for divorces. The Act on the Procedure in Family Matters (FamFG) regulates in detail.
The claims are no longer claimed by the lawsuit as before, but by the application. In a so-called maintenance procedure, it is up to the judge to decide on the maintenance. The decision can be changed later if the underlying circumstances of the spouses also change.
Divorce and maintenance: When does the claim expire?
The maintenance obligations end with the death of the dependent or for maintenance Committed. If divorced child support can still be claimed for the past, the heirs’ claims are transferred as a legacy liability.
Divorce and maintenance: All about child maintenance
Child maintenance results from the situation that parents are their children are subject to maintenance. If the parents separate and divorce, the parent who looks after the child in the household fulfills his duty by providing food and accommodation. The other spouse, on the other hand, has to pay child maintenance in financial form.
The dependent parent is entitled to a deductible (personal use) to secure their existence. This self-maintenance is:
- For persons not in maintenance: 960 euros
- For persons who are employed: 1,160 euros
- For children of legal age: 1,400 euros
How high is the child maintenance?
The Düsseldorfer table has the function of making child maintenance understandable. The table is updated every two years and is used by all family courts.
The Düsseldorf table measures what the dependent parent receives on adjusted net income and how old the child is. There are four age groups:
- 0 – 5 years
- 6 – 11 years
- 12 – 17 years
- Children of full age
Half of the child benefit is allocated to each parent. In the Düsseldorf table, you can see exactly how high your fundamental value of child support depends on the child’s age and your adjusted net income.