Post-marital maintenance: when it ends

With the divorce becoming final, the yardstick turns around

As long as the marriage exists, separation maintenance carries the economically weaker side, without any particular ground being needed for it. Once the divorce becomes final that state ends, and the law puts a different rule first: everyone provides for themselves in the first place (§ 1569 BGB).

Post-marital maintenance is therefore the exception, not the continuation. It does not arise automatically out of separation maintenance but has to be asserted independently, and it needs a ground that the statute names.

The grounds that carry a claim

The statute knows an exhaustive catalogue:

• Care of children (§ 1570 BGB), the most frequent case.
• Age (§ 1571 BGB), where employment can no longer be expected.
• Illness or infirmity (§ 1572 BGB).
• Unemployment or an income that is not sufficient (§ 1573 BGB).
• Education, further training, retraining (§ 1575 BGB), to close a gap caused by the marriage.
• Equity in specially situated cases (§ 1576 BGB).

One particularity applies that is frequently overlooked: the ground has to exist at a particular qualifying moment, for instance when the divorce becomes final, at the end of the care of children or on completing a course of training. Anyone who falls ill only years later can as a rule no longer derive a claim from it.

For maintenance during the care of children the statute provides a basic period of three years after the birth (§ 1570 BGB). It is extended in so far as equity requires: child-related where the care continues to demand it, parent-related where the distribution of roles lived out in the marriage still has an effect.

How high the maintenance turns out

The yardstick is the marital standard of living (§ 1578 BGB). The calculation follows the principle of equal division as with separation maintenance: the difference between the adjusted net incomes is divided, with the employment bonus deducted from earned income beforehand, under the maintenance guidelines of the Frankfurt higher regional court one tenth. The details of that calculation are set out in separation maintenance: who gets how much.

On top of that come two items that play a role less often with separation maintenance: provision maintenance for health and pension cover (§ 1578 (2), (3) BGB). Anyone who cannot build up provision of their own because of caring for children should be able to finance it through the maintenance.

The real point of dispute: the time limit

Even where a ground for a claim exists, that says nothing yet about the duration. The court can limit the maintenance in time or reduce it in amount in so far as an unlimited payment at the full level would be inequitable (§ 1578b BGB). In practice hardly anything is fought over as intensively.

The yardstick for that is the marriage-related disadvantage: is the entitled side worse off professionally than they would be without the shared life planning? Anyone who left their profession for the children, gave up their position for the other’s move or broke off a course of training carries such a disadvantage. Anyone who today stands where they would stand without the marriage as a rule does not.

Two rough lines follow from that. In a short marriage without children in which both worked throughout, the claim frequently ends quickly. In a long marriage with years of caring for children and a return to work part-time it can run for a long time or stay unlimited. Between those poles the individual case decides, and it does so on the basis of CVs, salary developments and periods of care, not on the basis of a formula.

Alongside the time limit stands the reduction: after a transitional period the maintenance can be lowered from the level of the marital standard of living to the appropriate needs of the person themselves.

When the claim ends

Three routes lead out of the obligation to pay, regardless of any time limit.

Remarriage. Where the entitled side marries again or enters a civil partnership, the claim lapses (§ 1586 BGB). It does not revive even where the new marriage fails.

Forfeiture. Where there is gross inequity, the claim can fall away, be reduced or be limited in time (§ 1579 BGB). The practically most important case is the consolidated new relationship, a cohabitation that outwardly looks like a marriage. No rigid time limit applies to that; what is decisive is the overall picture.

Agreement. Unlike separation maintenance, post-marital maintenance can be waived (§ 1585c BGB). Where that happens before the divorce becomes final, recording by a notary is required. The place for such arrangements is the prenuptial agreement or the divorce settlement agreement; and the advice belongs before it, not after.

What comes next

How separation, child and post-marital maintenance relate to one another is sorted out by separation & maintenance. What applies to the children and why their claim takes precedence over all others is set out in child maintenance: reading the Düsseldorf table properly.

Because maintenance is not the only calculation drawn up in a divorce, it is worth looking alongside it at assets & accrued gains and the pension rights adjustment; it is precisely there that marriage-related disadvantages are often already partly balanced out.

Legal notice: This article is provided for general information and does not replace legal advice in an individual case. Any laws, deadlines and amounts mentioned reflect the state of affairs at the time of publication and may change. A binding assessment requires a personal consultation.