Separation, divorce & alimony

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).

 

Maintenance due to illness – If someone cannot take up gainful employment due to illness, he or she can demand maintenance from his or her divorced spouse (§ 1572 BGB). He must prove the nature and extent of the health impairments or the illness by means of medical certificates. A claim for maintenance on account of illness can follow on directly from care maintenance.

Old-age maintenance – Those who can no longer find work because of their age may still be entitled to maintenance against their divorced spouse (§ 1571 BGB). There is no rigid age limit. The standard age limit for the statutory pension can be used as a guideline. Old-age maintenance may follow other grounds for maintenance. People who are still younger must prove that they typically can no longer find adequate work in the possible occupations due to their age.

Maintenance due to unemployment – A divorced spouse may claim maintenance from the other spouse as long as and to the extent that he or she is unable to find a suitable job after the divorce (§ 1573 paras. 1, 3 and 4 BGB). However, he or she only has such a claim if he or she cannot demand maintenance for care or maintenance due to old age or illness. Mere registration with the employment agency is not sufficient to prove that no job can be found. The person who wants maintenance for this reason must specifically prove that he or she has made a serious effort to find a job.

Supplementary maintenance – If one of the spouses has a higher income that characterises the marital living conditions, supplementary maintenance may be due for the other. For this purpose, one’s own income may not be sufficient to maintain the living conditions (§ 1573 par. 2 BGB).

Here is an example calculation: A married couple divorces after ten years of childless marriage. One of them has earned a monthly income of 4,500 euros during the marriage which is relevant for maintenance. The other has a reasonable job and earns monthly income of 1,500 euros. There is no post-marital claim to care maintenance or maintenance due to illness, but there is a claim to supplementary maintenance.

The need is determined according to the so-called principle of halving (§ 1578 BGB). According to this, the needs of the respective spouse amount to (4,500 Euros + 1,500 Euros) x 1/2 = 3,000 Euros. The supplementary maintenance is 3,000 Euros – 1,500 Euros = 1,500 Euros. However, the payment can be limited or reduced (§ 1578b BGB).

Educational maintenance- In the event of divorce, anyone who has discontinued or not taken up an education in anticipation of marriage or during marriage can demand maintenance until completion of a new education (§ 1575 BGB). To do so, he must start or continue the education as soon as possible after the divorce. It should be necessary in order to obtain adequate gainful employment to sustainably secure maintenance. Maintenance for further training or retraining is limited in time to the average duration of the further training or retraining.

Tip: Maintenance payments to the ex-partner can be deducted from tax as special expenses. You can claim up to 13,805 euros per year.

Maintenance for reasons of equity- In addition, maintenance can be paid as long as the ex-partner cannot be expected to work and it would be grossly inequitable not to pay him/her maintenance (§ 1576 BGB).

For example, someone who takes care of a foster child taken in together before the separation could, under certain circumstances, claim maintenance on grounds of equity (BGH, judgement of 25 January 1984, ref. IVb ZR 28/82). Taking care of one’s own child who is not a joint child can also justify a claim for maintenance on grounds of equity (LSG Bayern, judgement of 13 April 2007, ref. L 7 AS 40/07).

If one does not receive maintenance due to illness, for example, because an illness only occurred after the divorce, one may still be able to receive maintenance on grounds of equity, because otherwise a particular hardship would arise (BGH, judgement of 17 September 2003, ref. XII ZR 184/01).

As far as the amount of maintenance is concerned, it can be said that, in principle, three sevenths of the adjusted net income (just under 43 per cent) of the divorced partner is paid as post-marital maintenance if the other partner is not gainfully employed. At present, the person obliged to pay maintenance may deduct an amount of 1,280 euros as a deductible if he or she is gainfully employed. Maintenance can be reduced or limited in time after a comprehensive examination. The concrete calculation of spousal maintenance always depends on the individual case.

Separation, divorce & alimony

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).

 

Maintenance due to illness – If someone cannot take up gainful employment due to illness, he or she can demand maintenance from his or her divorced spouse (§ 1572 BGB). He must prove the nature and extent of the health impairments or the illness by means of medical certificates. A claim for maintenance on account of illness can follow on directly from care maintenance.

Old-age maintenance – Those who can no longer find work because of their age may still be entitled to maintenance against their divorced spouse (§ 1571 BGB). There is no rigid age limit. The standard age limit for the statutory pension can be used as a guideline. Old-age maintenance may follow other grounds for maintenance. People who are still younger must prove that they typically can no longer find adequate work in the possible occupations due to their age.

Maintenance due to unemployment – A divorced spouse may claim maintenance from the other spouse as long as and to the extent that he or she is unable to find a suitable job after the divorce (§ 1573 paras. 1, 3 and 4 BGB). However, he or she only has such a claim if he or she cannot demand maintenance for care or maintenance due to old age or illness. Mere registration with the employment agency is not sufficient to prove that no job can be found. The person who wants maintenance for this reason must specifically prove that he or she has made a serious effort to find a job.

Supplementary maintenance – If one of the spouses has a higher income that characterises the marital living conditions, supplementary maintenance may be due for the other. For this purpose, one’s own income may not be sufficient to maintain the living conditions (§ 1573 par. 2 BGB).

Here is an example calculation: A married couple divorces after ten years of childless marriage. One of them has earned a monthly income of 4,500 euros during the marriage which is relevant for maintenance. The other has a reasonable job and earns monthly income of 1,500 euros. There is no post-marital claim to care maintenance or maintenance due to illness, but there is a claim to supplementary maintenance.

The need is determined according to the so-called principle of halving (§ 1578 BGB). According to this, the needs of the respective spouse amount to (4,500 Euros + 1,500 Euros) x 1/2 = 3,000 Euros. The supplementary maintenance is 3,000 Euros – 1,500 Euros = 1,500 Euros. However, the payment can be limited or reduced (§ 1578b BGB).

Educational maintenance- In the event of divorce, anyone who has discontinued or not taken up an education in anticipation of marriage or during marriage can demand maintenance until completion of a new education (§ 1575 BGB). To do so, he must start or continue the education as soon as possible after the divorce. It should be necessary in order to obtain adequate gainful employment to sustainably secure maintenance. Maintenance for further training or retraining is limited in time to the average duration of the further training or retraining.

Tip: Maintenance payments to the ex-partner can be deducted from tax as special expenses. You can claim up to 13,805 euros per year.

Maintenance for reasons of equity- In addition, maintenance can be paid as long as the ex-partner cannot be expected to work and it would be grossly inequitable not to pay him/her maintenance (§ 1576 BGB).

For example, someone who takes care of a foster child taken in together before the separation could, under certain circumstances, claim maintenance on grounds of equity (BGH, judgement of 25 January 1984, ref. IVb ZR 28/82). Taking care of one’s own child who is not a joint child can also justify a claim for maintenance on grounds of equity (LSG Bayern, judgement of 13 April 2007, ref. L 7 AS 40/07).

If one does not receive maintenance due to illness, for example, because an illness only occurred after the divorce, one may still be able to receive maintenance on grounds of equity, because otherwise a particular hardship would arise (BGH, judgement of 17 September 2003, ref. XII ZR 184/01).

As far as the amount of maintenance is concerned, it can be said that, in principle, three sevenths of the adjusted net income (just under 43 per cent) of the divorced partner is paid as post-marital maintenance if the other partner is not gainfully employed. At present, the person obliged to pay maintenance may deduct an amount of 1,280 euros as a deductible if he or she is gainfully employed. Maintenance can be reduced or limited in time after a comprehensive examination. The concrete calculation of spousal maintenance always depends on the individual case.