Family law: Relevant income for post-marital spousal support

Post-marital maintenance: requirements and claims

After a divorce, a spouse can assert claims for post-marital maintenance under certain conditions. The entitlement is based on the legal principles in §§ 1570 ff. of the German Civil Code (BGB). The prerequisite is that the divorced spouse can prove one of the reasons for maintenance specified in the law. These reasons are, for example, the care of joint children, illness or unemployment. In addition, general requirements such as the neediness of the entitled party and the ability of the obligated party to pay must be met.

Legal grounds for entitlement to post-marital maintenance

The legal grounds on which a divorced spouse can rely are clearly defined in the German Civil Code. These include:

• • • Maintenance due to caring for a joint child (§ 1570 BGB)Entitlement exists if the divorced spouse is unable to take up appropriate gainful employment due to caring for a joint child.
    • Maintenance due to old age (§ 1571 BGB)If the divorced spouse is no longer able to pursue gainful employment due to advanced age.
    • Maintenance due to illness or infirmity (§ 1572 BGB)Entitlement exists if gainful employment is impossible due to health restrictions.
    • Maintenance due to unemployment and top-up maintenance (§ 1573 BGB)This applies in the event of unemployment or if earnings are not sufficient to cover living expenses.
    • Maintenance due to training, further education or retraining (§ 1575 BGB)Entitlement may exist if training, retraining or further training is necessary in order to be able to take up appropriate gainful employment.
    • Maintenance on equitable grounds (§ 1576 BGB)This is granted in exceptional cases if special circumstances justify post-marital support.

Neediness and ability to pay: General requirements for maintenance entitlement

In addition to the reasons mentioned, the general requirements for a maintenance claim must also be met:

• • • Neediness of the beneficiary (§ 1577 BGB)Entitlement to maintenance only exists if the entitled person cannot support themselves from their own income or assets. The person entitled to maintenance is obliged to realise their own assets and income is offset against the maintenance claim.
    • Capacity of the obligor (§ 1581 BGB)The maintenance debtor must be financially able to pay the maintenance without jeopardising his or her own reasonable livelihood.

The amount of maintenance is determined according to the marital living conditions. The decisive factor is the time of the divorce and the income available during the marriage.

Calculation of the relevant income

The calculation of post-marital maintenance is based on the joint family income. All income is taken into account in accordance with § 2 of the Income Tax Act (EStG), such as

• • • Income from agriculture and forestry,
    • Income from commercial operations,
    • Income from self-employment,
    • Income from employment,
    • Income from capital assets,
    • Income from letting and leasing.

However, when determining the income relevant for maintenance, only the income that characterised the marital circumstances is taken into account. This includes, for example, income that was available during the marriage and expected salary increases that were already apparent during the marriage.

Additional income that was earned after the separation and does not serve as a surrogate for the marital lifestyle is not taken into account. For example, income from a career jump after the marriage is not considered to be a formative income if it was not foreseeable.

Summary of the maintenance calculation

The calculation of post-marital maintenance is strongly orientated towards the marital circumstances and the individual income situation of the spouses. Significant income that was available during the marriage is used for the calculation, while income earned after the separation is only taken into account under certain conditions. The decisive factor is the annual net income, which includes special payments such as holiday and Christmas bonuses. Income from letting or leasing and the benefit of using your own home can also be included in the calculation. However, extra-mandatory income from secondary employment that already covers the minimum requirements of the maintenance creditor is not included in the calculation.