In principle, there is only maintenance after divorce if one of the grounds for maintenance exists at the time of the divorce.
Childcare maintenance – Those who cannot work after the divorce because they have to look after small children are entitled to childcare maintenance (§ 1570 BGB). This basic maintenance is generally payable for at least three years after the birth of the child. Even if, for example, grandparents or a crèche could take care of the children, the parent taking care of the child may decide to stay at home (BGH, judgement of 15 September 2010, ref. XII ZR 20/09).
This is different for older children. As of the child’s third birthday, the person receiving maintenance must in principle return to work. However, he or she does not have to take up a full-time job immediately, but can start part-time at first.
The age of the children is not the only decisive factor (BGH, judgement of 15 June 2011, ref. XII ZR 94/09). If a child has difficulties at school or is in poor health, care maintenance may still be justified after the child has reached the age of three.
Ultimately, this is a case-by-case decision that takes into account the best interests of the child and the concrete care options.
Here are three examples from case law:
With three children aged 12, 15 and 17, the single parent cannot reasonably be expected to work full-time. If the carer has to take the children to sports or music activities in the afternoon, that is fine. She can only be expected to work 30 hours (BGH, judgement of 18 April 2012, XII ZR 65/10).
In the case of two children aged 12 and 14, one of whom suffers from ADHD, the parent providing care must show that there is no institution in the catchment area that provides child-friendly care for the child during homework and in the afternoon. Only then does a claim for maintenance due to child care remain valid (BGH, judgement of 6 May 2009, XII ZR 114/08).
If a disabled child of full age is cared for, the maintenance claim can be extended beyond the basic maintenance for the benefit of the child (BGH, judgement of 17 March 2010, XII ZR 204/08).