Settling post-marital maintenance in a marital agreement

Can post-marital maintenance be excluded in a marital agreement?

Spouses may agree freely on maintenance for the period after the divorce, up to a complete waiver § 1585c sentence 1 BGB. That freedom ends where the arrangement hollows out the protected core of the law on the consequences of divorce and one side was in the weaker position at signing.

In practice, that means two things. A total waiver between two well-earning professionals who don’t want children usually holds. The same waiver rarely survives judicial review in a marriage where one side cares for the children and gives up their job.

Why separation maintenance stays out

A marital agreement does not cover Trennungsunterhalt (separation maintenance), not even when the deed speaks of a comprehensive waiver of maintenance. Nobody can validly waive maintenance for the period of living apart in advance. The route there runs through three cross-references § 1361 (4) sentence 4 BGB, § 1360a (3) BGB and § 1614 (1) BGB.

No other point causes as many surprises in the first consultation. Clients bring an agreement with “waiver of maintenance” in large letters and assume the matter is settled from the day someone moves out. In fact, the clause only concerns the period after the divorce becomes final. Payments continue for the entire Trennungsjahr (year of separation), often at a level nobody expected.

What applies in this phase is explained in Separation maintenance, amount and start.

How firmly each ground for maintenance holds

German law has no single spousal maintenance claim but several grounds, and they differ in how far a contract can set them aside. The ranking comes from the core area doctrine of the Federal Court of Justice BGH, judgment of February 11, 2004, XII ZR 265/02.

• Betreuungsunterhalt (childcare maintenance) § 1570 BGB is the most strongly protected claim. It serves the care of a shared child, and a waiver survives judicial review of its content only in exceptional cases.
• Maintenance for old age and for illness §§ 1571, 1572 BGB follow directly. Both protect against risks that no planning can control.
• Maintenance for unemployment and top-up maintenance § 1573 BGB sit considerably further out.
• Maintenance for education and on grounds of fairness §§ 1575, 1576 BGB are the easiest to waive.

An agreement that excludes everything across the board therefore reaches into the most stable and the weakest position in one stroke. If you settle one ground at a time instead, you lose little protection and gain a great deal of durability.

The levers short of a waiver

Between a complete waiver and the statutory default lie four arrangements that hold up better in practice than all or nothing.

• Cap the amount. A monthly ceiling, ideally tied to the consumer price index, keeps payments predictable and leaves the claim itself in place.
• Set a time limit. A fixed term, for instance graduated by the length of the marriage and the number of children, picks up the statutory logic of time limits § 1578b BGB and makes it foreseeable.
• Define the basis of calculation. Rather than arguing about need, the agreement defines the relevant income, for instance as the average of the last three years before separation. That spares you a later dispute about bonuses, company cars and profit withdrawals.
• Add an opening clause for children. The waiver applies as long as the marriage remains childless; when a shared child is born, childcare maintenance revives at the statutory level.

That last arrangement is the most effective safeguard against later review of how the agreement plays out. It takes away the very argument that most often succeeds in court: that the marriage turned out quite differently from what was planned at signing.

What a marriage-related disadvantage is and why it counts here

A marriage-related disadvantage is the lasting loss someone suffers because the marriage changed their working life. Typical causes are part-time work, parental leave or a move to the other spouse’s workplace. The statutory time limit on maintenance turns on exactly this measure § 1578b BGB.

For a marital agreement, this yields a simple test. Where the planned marriage will foreseeably create no such disadvantages, a far-reaching maintenance arrangement holds. Where it foreseeably will, the agreement needs compensation, such as a lump sum, a property or a promise to keep paying pension contributions.

How time limits work without an agreement is explained in Post-marital maintenance and its time limit.

Which form a maintenance arrangement needs

Every agreement on post-marital maintenance made before the divorce becomes final has to be notarized § 1585c sentence 2 BGB. Without that form it is void, and signatures from both sides do not change that.

Two routes replace the notary. A court settlement recorded before the trial court in matrimonial proceedings takes the place of notarization § 1585c sentence 3 BGB in conjunction with § 127a BGB. And once the divorce is final, the agreement needs no particular form, although in practice that is rarely the better choice.

Why child support does not belong in a marital agreement

Parents cannot use a marital agreement to dispose of child support for their shared child to the child’s detriment. Nobody can waive maintenance between relatives for the future § 1614 (1) BGB, and the claim belongs to the child in any case, represented by the parent who provides care.

An arrangement between the parents themselves remains permissible, for instance a promise to indemnify the other against claims. It binds nobody outside that relationship. How the amount is calculated is explained in Child support and the Düsseldorf table.

The item that disappears along with a waiver

Maintenance for retirement provision depends on an existing maintenance claim. If you can claim under §§ 1570 to 1573 or § 1576 BGB, your needs also include the cost of adequate insurance for old age and reduced earning capacity § 1578 (3) BGB. This item is owed on top of basic maintenance, and it makes up a noticeable share of the calculation.

That very dependency makes it vulnerable. A blanket waiver of maintenance quietly takes this item with it, because once the underlying claim falls away, so does the provision attached to it. For the side that pays little or nothing into the pension system while caring for children, two gaps add up. They lose ongoing payments and the build-up of their own pension entitlements at the same time, and both only hit thirty years later.

If you still want a far-reaching waiver, the agreement needs a separate promise as compensation. One example is an obligation to pay contributions into a private pension policy for the other side during the years of childcare. This clause costs the paying side comparatively little and later adds considerably to the agreement’s durability.

What a durable maintenance section looks like

A robust maintenance section names the grounds one by one and leaves childcare maintenance untouched. The other claims are capped and time-limited. And a preamble records the shape of marriage both sides assumed when they signed. That is more work than one sentence about a mutual waiver, and it is the difference between a document and an arrangement that works when it counts.

The limits for the other two levers are covered in Excluding the equalization of accrued gains by marital agreement and When the pension rights adjustment does not apply. Our page on the marital agreement describes the overall framework.