During the separation phase—that is, before the divorce is finalized in court—there may be a claim for separation support, depending on the couple’s marital living circumstances, which must be actively asserted if claimed.
Once the divorce becomes final, the entitlement to so-called separation support ends. However,
Even after the divorce, a needy former spouse may still be entitled to spousal support—post- divorce spousal support often leads to lengthy legal disputes. Don’t leave it to chance; seek help from a certified specialist lawyer in family law.
After the marriage, each spouse must provide for their own support
During the marriage, both spouses are required to contribute to the family’s support. This obligation continues during the separation period, as the marital bond still exists during this time.
After divorce, the goal is to achieve financial independence for the divorced parties to the greatest extent possible. In a 2008 reform, the legislature introduced the principle that, after divorce, former spouses must provide for their own support unless one spouse has suffered marriage-related disadvantages in their career advancement.
The core of the maintenance reform centered on individual responsibility.
Under this reform, spousal support was limited to a minimum based on continuing (post-)marital solidarity, which in some cases led to serious disadvantages for the economically weaker spouse.
Therefore, a further reform in 2013 shifted the focus of post-marital spousal maintenance to the duration of the marriage, regardless of whether the spouse seeking spousal maintenance had actually suffered any disadvantages.
Who is entitled to post-marital spousal maintenance?
Although the legal principle holds that each divorced spouse is initially responsible for their own financial support after the divorce, there are exceptions to this rule.
Whenever the divorced spouse in need is unable to provide for their own support, the divorced spouse with sufficient means must do so out
Of a sense of marital solidarity. Thus, whenever the divorced spouse in need cannot provide for their own support and the other divorced spouse has sufficient means—that is, is financially capable—a case for post-marital spousal support may exist.
The legislature has specified certain cases in which spousal support may be granted:
- Support due to the care of joint children
- Maintenance due to advanced age
- Maintenance due to illness or infirmity
- Maintenance due to unemployment
- Supplementary maintenance
- Maintenance for education What
These categories have in common is that the divorced spouse in need cannot work at all or to the full extent due to specific reasons, or that full-time employment is unreasonable for specific reasons.
How long are you entitled to post-marital spousal support?
The duration of post-divorce spousal support depends heavily on the reason for the support claim. In the case of a support claim based on advanced age, it is no longer reasonable to expect the divorced, financially dependent spouse to work, precisely because of their age.
In such cases, the claim for support is likely to continue for the rest of the person’s life.
The same applies to spousal support due to illness or infirmity. In this case, the divorced spouse in need is unable to take up gainful employment—or cannot reasonably be expected to do so—due to illness, infirmity, or mental or physical weakness.
In the case of an incurable illness, the right to spousal support is also likely to be unlimited.
However, the duration of support payments differs in cases of unemployment and child care. In the case of a claim for support due to unemployment, payments are generally made only for as long as the unemployment—through no fault of the recipient—persists.
If the divorced spouse in need is able to secure employment, they are no longer entitled to spousal support, or are entitled to it only to the extent that the income earned from that employment does not cover their own needs (so-called “supplemental spousal support”).
In the case of child-care support, it is assumed that full support must be provided during the child’s first three years of life.
After that, the maintenance amount is generally reduced, as the divorced spouse providing care can then gradually return to work. In this case, the duration and amount of maintenance are closely tied to the child’s age.
An increased need may also exist, for example, after the child’s third year of life if this is specifically demonstrated.
The duration and amount of the child support entitlement depend heavily on the circumstances of the individual case.
Marital disadvantages affecting one spouse’s own career development can also play a significant role.
A certified specialist lawyer in family law can advocate for these individual circumstances in court.
Therefore, in cases of post-marital spousal support, it is important and necessary to receive sound and comprehensive advice and representation from a certified specialist lawyer in family law.
When is the right to spousal support excluded?
Based on the legal principle that divorced spouses must provide for their own support after the divorce, it is clear that spousal support paid on an exceptional basis should also have its limits.
For so-called reasons of equity, a claim for post-divorce spousal support may be excluded. This may be the case, for example, if the spouse who is actually financially capable jeopardizes their own livelihood by making the support payments.
Thus, if the income of the financially capable spouse is insufficient to meet the maintenance claim of the divorced, needy spouse, the maintenance payment must be reduced.
However, the divorced spouse in need may also lose the right to maintenance due to their own conduct. For example, if the divorced spouse in need violates their fundamental obligation to seek employment and refuses reasonable job offers, maintenance based on unemployment is excluded.
In such cases, only unemployment through no fault of their own should give rise to a claim for spousal support.
A similar rule applies if the divorced spouse in need intentionally causes their own financial need—for example, through alcoholism—if the divorced spouse in need commits a crime or a serious intentional offense against the spouse with the means to pay, or if the marriage was of short duration (approximately two years).
In the cases mentioned above, the right to spousal support may be forfeited.
Do you have questions about post-marital spousal support, or would you like legal advice? Then call us at 030 / 890644-0 or send us an email at [email protected] . We’d be happy to advise you!
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