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Maintenance
Separation maintenance: who gets how much, and from when?
One household becomes two, the income stays the same. The question of who owes what to whom therefore usually arises in the first week and is almost always asked too late.
Karcher Rechtsanwälte in Frankfurt am Main, Germany, focusing on uncontested divorce and international family law. Advice in German, English and Spanish.
Part of our guide Separation & maintenanceA claim with a clear beginning and a clear end
Separation maintenance is the maintenance between spouses who live apart but are still married. It begins with the separation and ends when the divorce becomes final (§ 1361 BGB). What comes after that is a different claim with different conditions.
That sharp distinction matters more than it sounds. Separation maintenance does not turn into post-marital maintenance automatically. Anyone who wants maintenance after the divorce has to assert it independently and needs a statutory ground for it.
The claim rests on two conditions: need on one side, ability to pay on the other. Where one of them is missing, there is no maintenance, however the calculation might otherwise look.
The claim arises with the separation. Money comes only from the moment you demand it.
The most expensive mistake: asking too late
The law knows no leniency at this point. Retroactively, maintenance exists only from the moment you demanded it or called on the other to disclose their income (§ 1613 BGB). For the time before that there is as a rule no claim, not even where the need obviously existed.
In practice things often run the other way round: people wait until their own situation is clear, until the other side’s figures are available, until the conflict has calmed down. Every one of those months is lost. Three things secure the moment:
- The written request to pay maintenance, even without an amount.
- The request to disclose income (§ 1605 BGB).
- The application filed with the court.
What is decisive is proof of when it happened. Hence in writing and not on the telephone.
The point of it: the request for disclosure secures the moment before it is established how high the claim turns out in the end. You therefore do not have to know what the other earns in order to preserve the period. You only have to ask.
How the amount is formed
Spousal maintenance follows no table but the principle of equal division: what both contributed to the marital standard of living is divided between them.
The starting point is the adjusted net income of both sides. From earned income an employment bonus is deducted in advance, under the maintenance guidelines of the Frankfurt higher regional court one tenth. The remaining difference is halved; the higher earner pays.
“Adjusted” does not mean “net according to the payslip”. What is deducted includes work-related expenses, liabilities that can be taken into account and additional pension provision. Conversely, what does not appear in the account but carries the standard of living is added, above all the housing advantage where one of you lives rent-free in the shared property.
The law draws two limits. The payer keeps a protected minimum for their own needs; below that the maintenance turns out smaller or falls away entirely. And child maintenance takes precedence (§ 1609 BGB): it is deducted from the income before any spousal maintenance is formed at all.
How child maintenance is determined in advance is shown by child maintenance: reading the Düsseldorf table properly.
Does the other have to pay at all if I work?
Frequently yes, only less. An income of your own does not exclude the claim, it reduces the difference from which the maintenance is formed. Only where both earn roughly the same does nothing remain arithmetically.
Conversely: anyone who does not work does not have to change that at once in the year of separation. The duty to provide for your own maintenance grows with the duration of the separation and follows the length of the marriage, the distribution of roles and the care of children. It is smallest in the first year and greatest on the day the divorce becomes final.
What can be agreed and what cannot
Separation maintenance cannot be waived for the future: through the chain of references in §§ 1361 (4), 1360a (3) BGB, § 1614 BGB applies accordingly. An agreement excluding it for the coming months is void, even where both have signed it.
Quite a lot can be settled nonetheless: the amount, the manner of payment, the setting-off against running costs such as rent or loan instalments. Such arrangements belong in writing, because otherwise it can no longer be established later what a given payment was made for. The suitable frame for that is the divorce settlement agreement.
What comes next
Separation maintenance is one of three separate claims; the overall picture including child maintenance is set out under separation & maintenance. What happens once the divorce becomes final and under which conditions payment continues after that is clarified by post-marital maintenance: when it ends.
Because the calculation is only as good as the figures it rests on, it is worth looking alongside that at the right to disclosure. And what else applies at once with the separation, from the home to the tax class, is set out under separation before the divorce.
Rates, protected minimums and bonus percentages follow the maintenance guidelines of the Frankfurt higher regional court and change annually. A calculation that was right a year ago can be out of date today. In a personal conversation we calculate your case through on the current basis.
Attorney at law · focus on family law
Admitted since 2010, more than fifteen years of experience in advising and representation. The contact for new instructions at Karcher Rechtsanwälte in Frankfurt-Gallus.
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.