Severance pay on separation: maintenance or accrued gains?

Does severance pay count as income for maintenance?

In most cases, yes: severance pay (Abfindung) from an employer usually replaces the salary lost with the job, so maintenance law treats it like income. Under the maintenance guidelines of the Higher Regional Court of Frankfurt (Unterhaltsgrundsätze des OLG Frankfurt), it is spread over a reasonable period, usually several years Frankfurt maintenance guidelines 2026, no. 1.2.

How long the money has to last depends on what happens next professionally. It is meant to let the paying side maintain their previous financial circumstances for a certain time.

What if a new job follows right away?

If the paying side moves straight into a new job with comparable pay, the severance pay stays out of maintenance BGH, judgment of April 18, 2012, XII ZR 65/10. On the same day, the Federal Court of Justice ruled the same way on child support BGH, judgment of April 18, 2012, XII ZR 66/10.

If the new job pays less, the paying side has to use the severance pay to top up the lower income. With no comparable job in sight, a partial top-up can also be appropriate, so that the money lasts longer.

When severance pay falls into the equalization of accrued gains

Severance pay falls into the Zugewinnausgleich (accrued gains) if it is part of the assets on the cut-off date. The cut-off date is the day the Scheidungsantrag (divorce petition) is served § 1384 BGB. If the severance pay is in the account by then, or the right to it has already arisen with certainty, it belongs to the final assets, even if it is only paid out later. A termination agreement (Aufhebungsvertrag) signed only after the cut-off date leaves the severance pay out of the equalization altogether.

Our page on the equalization of accrued gains explains how the calculation works as a whole.

Why severance pay does not count twice

Whatever is spread as income for maintenance cannot also be equalized in the Zugewinnausgleich (accrued gains) BGH, judgment of April 21, 2004, XII ZR 185/01. Courts therefore divide the severance pay into two parts: the part that has to be used for maintenance and the rest, which falls into the equalization.

For the side entitled to maintenance, the split makes a real difference. In maintenance, the severance pay works over years: it supports the income from which the monthly maintenance is calculated, and its effect ends with the maintenance claim. In the equalization, the claim falls due in one sum, but only for half the difference between the two spouses’ gains § 1378 (1) BGB. Which route works out better depends on the individual case and can be calculated in advance.

When severance pay arrives between separation and the cut-off date

When severance pay arrives between the separation and the cut-off date, it matters when the claim to it arose. Each side can demand that the other disclose their assets as of the day of separation § 1379 (1) sentence 1 no. 1 BGB. If the termination agreement had already been signed by then, the claim to the severance pay is part of those assets. If the final assets are lower than in that disclosure, the side that received the severance pay must show and prove that the reduction is not due to gifts, squandering or acts to the other side’s disadvantage § 1375 (2) sentence 2 BGB.

If the agreement was signed only after the separation, this rule does not help. Whatever was spent by the cut-off date then counts only if the other side proves that it was given away, squandered or moved aside to their disadvantage § 1375 (2) sentence 1 BGB. Money spent on ordinary living costs does not count. For how disclosure works, see Disclosure of your spouse’s assets: what you are entitled to.

What to consider before you sign

Severance pay is taxable, usually at a reduced rate § 34 EStG. For maintenance and the equalization, the amount after tax is what counts.

If you give up a well-paid job without good reason, you have to expect maintenance to go on being calculated on your previous income. That can also apply if the agreement merely preempts a threatened dismissal but benefits only the employer. So keep a written record of why you are signing the termination agreement and what you are getting in return.

Bring the following to the consultation:

• the termination agreement or the offer of one, and the social plan (Sozialplan) if one applies,
• your latest payslips and bonus letters,
• the date of separation and, if already filed, the date of the Scheidungsantrag (divorce petition).

The next step

At our firm, attorney Mieke Karcher handles maintenance and attorney Dietrich Karcher handles the Zugewinnausgleich (accrued gains). Where severance pay is involved, they work together, because the question can only be answered by running both calculations. 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 explained on our costs page.

Our article Separation maintenance: who gets how much, and from when? explains how maintenance is calculated during the separation. How pay, valuation and liquidity interact on high incomes is covered on our page on divorce for business owners.