Self-employed and paying maintenance: which income counts

Which income counts for the self-employed?

The profit over a recent three-year period. That is what the Frankfurt maintenance guidelines provide, and the guidelines of the other higher regional courts take a similar view Frankfurt maintenance guidelines 2026, no. 1.5. This means the profit shown in the balance sheet or the cash-basis accounts, usually for the last three completed years.

The average smooths out fluctuations that are normal for the self-employed. It is not rigid, however. If profit has risen steadily for years or has collapsed for good, the court can give more weight to the most recent figures. If you rely on a decline, you have to show that it is more than temporary.

The tax assessment is the start, not the result

Tax law allows profit to be reduced on paper. Maintenance law, by contrast, asks how much money is actually available to live on. Courts therefore correct the taxable profit at several points:

• Depreciation on machinery, vehicles and equipment is accepted as far as it reflects the actual loss in value. Special depreciation that only saves tax is stripped out.
• Investment deductions under § 7g EStG reduce profit without any money leaving the business. If courts add them back, they also apply the tax that would have arisen without the deduction BGH, judgment of June 2, 2004, XII ZR 217/01.
• Business expenses used privately, such as the car, the phone or travel, count as income to the extent of their private share. How this works for a company car is covered in Company car and maintenance: how the benefit in kind counts.
• Salaries paid to relatives or to a new partner count as business expenses only to the extent that real work is done in return.

For rented residential buildings, the Frankfurt guidelines allow no depreciation at all Frankfurt maintenance guidelines 2026, no. 1.6. If you rent out property alongside your business, your income for maintenance purposes is therefore often higher than for tax purposes.

What is deducted from profit

Taxes are deducted from profit, as a rule those actually paid in each year. Tax refunds generally count in the year they arrive Frankfurt maintenance guidelines 2026, no. 1.7. If the court strips out depreciation or deductions, it applies the tax that would have arisen without them. Health and long-term care insurance contributions are deducted as well.

For retirement provision, the Frankfurt guidelines accept up to 22.6 percent of gross income Frankfurt maintenance guidelines 2026, no. 10.1. Self-employed people who are not in the statutory pension scheme can claim the full amount for their private provision if they actually spend it. Besides insurance policies, other investments that serve to provide for old age also count. Against the minimum maintenance for minor children and privileged adult children, however, the additional share above the statutory contribution rate does not count.

When the profit does not match the lifestyle

If the reported profit does not match the lifestyle, courts look at withdrawals. If a self-employed person has taken considerably more out of the business over the years than the reported profit allows, without running up debt or using up assets, this points to a higher income. Courts then use the withdrawals as a cross-check.

For the party entitled to maintenance, this is often the only way in. Recalculating the profit is hardly possible without the books. How the family lived, on the other hand, is easy to show from bank statements, vacations and purchases. On a very high income, what matters anyway is the specific need; see Maintenance on a high income: where the percentage method ends.

Shareholders in a limited company

With a GmbH, what counts first is what you draw from it: the managing director’s salary and the profits distributed. Profits that stay in the company do not automatically count.

It is different if you, as controlling shareholder, decide on distributions yourself and leave profits in the company without a business reason. Courts can then attribute them to your income. The question is whether the reserve is needed for investment or business risks. You have to explain that if the other side disputes it.

What you have to disclose

For maintenance, you owe information about your income, with supporting documents § 1605 (1) BGB. The same applies to maintenance during separation § 1361 (4) sentence 4 BGB and after the divorce § 1580 BGB. The self-employed usually provide:

• income tax assessments and tax returns for the last three years,
• balance sheets with profit and loss statements, or the cash-basis accounts, for the same years,
• for shareholders, the company’s annual accounts and the shareholder resolutions on the use of profits.

In court proceedings, these documents usually meet the heightened burden of explanation Frankfurt maintenance guidelines 2026, no. 1.5. If the other side raises specific objections, you have to explain individual items or provide further records, such as ledger accounts. As a rule, the other side can demand the information again only after two years § 1605 (2) BGB.

When the business slumps

A fall in profit reduces maintenance if it is lasting and not self-inflicted. If you let contracts run out shortly after the separation, take on staff without need or push profits into the future, expect the court to keep calculating with your earlier income.

If the business is permanently unprofitable, the court can expect you, after a transition period, to look for employment. If you do not, it calculates with the income you could earn there. How long the transition period lasts depends on the individual case, for example on age, industry and the prospects of the business.

Maintenance and the equalization do not count the business twice

If you own a business, it matters in two places: for maintenance through its profit and for the Zugewinnausgleich (equalization of accrued gains) through its value. The valuation for the equalization deducts an owner’s salary for your own work BGH, judgment of February 2, 2011, XII ZR 185/08. The remaining goodwill therefore does not include your own labor, on which maintenance is based, and the same earnings are not counted twice BGH, judgment of February 9, 2011, XII ZR 40/09. How the valuation works in detail is covered in How is a business valued in the equalization of gains?

The next step

At our firm, attorney Mieke Karcher handles maintenance cases, and attorney Dietrich Karcher handles the equalization and business valuations. The first consultation costs up to €190 plus VAT, at most €226.10 in total. If we take on your case, this fee does not apply. How further fees are calculated is set out under Costs. Our spousal maintenance calculator gives you a first figure. What else to consider in a divorce involving a business is described on our page on divorce for business owners.