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Alimony advice

Fair distribution of family income

Any person who marries and/or has children takes on personal and financial responsibility. Responsibility towards the spouse is based on the marriage vows and towards the child is based on the parental duty of care. Even if you are not married, you are responsible for the other person with whom you have children together, to the extent they incur financial losses due to the birth, upraising and care of the children.

In principle, you also owe your parents support if they do not have enough money to live on in old age. This maintenance obligation is justified by the principle of family solidarity. Parents have raised and cared for their children, and if they themselves experience financial hardship in old age, this obligation is reversed.

The expression of financial responsibility for one’s relatives is the maintenance that one must provide for them in order to meet their needs. Maintenance can be provided in the form of cash payments or by providing things, and for children it can also take the form of education, care, nursing and personal attention.

The burden on the social security funds is also reduced by involving close relatives, spouses or the other parent to provide maintenance. If state authorities initially cover the costs, for example the advance child support office for child support or the social welfare office for parental maintenance, they can later recover the money from the person liable to pay maintenance (so-called recourse).

In practice, spousal maintenance, child maintenance and maintenance for the purpose of child care are almost exclusively claimed in the event of a failed relationship. By contrast, parental maintenance can also become an issue in the case of intact family relationships, usually through recourse by the social security institution.

Ultimately, the purpose of maintenance is to distribute the income earned or achievable by the family members in such a way that everyone has enough to live on. No more and no less. In particular, maintenance is not intended to build up capital. In practice, disputes over maintenance are the most common family disputes. As personal estrangement increases, so does the reluctance to provide financial support to spouses or close relatives. However, the law only denies the right to maintenance in special, serious and exceptional cases.

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Alimony obligations and alimony calculations

A maintenance obligation towards another person always requires three things:

There is a legal basis for the maintenance claim.

The other person cannot cover their living expenses from its own income or assets.

The person liable for maintenance still must have enough money to live on (known as self-maintenance).

The determination of the respective need, the amount of maintenance and the amount of self-maintenance depends on who is receiving the maintenance. For all types of maintenance, the guidelines of the Düsseldorf Table and the maintenance principles of the Higher Regional Courts contain more detailed specifications, in particular regarding the method of calculation and the amounts of the self-maintenance.

These regulations are used by the courts, as well as the parties involved and their lawyers when seeking an out-of-court settlement for maintenance. The current version of the Düsseldorf Table and the maintenance principles of the Higher Regional Court of Frankfurt am Main can be found in the download section of this website.

For all types of maintenance, the income of the person liable for maintenance and the person entitled to maintenance play a central role. As a general rule, the average monthly net income from all types of income in accordance with the German Income Tax Act is the basis for calculating the maintenance, in particular income from self-employment and employment from business, agriculture and forestry, from rental and lease income, and from capital. Taxes and social security contributions, as well as work-related expenses, contributions to health, disability and pension insurance, and debt service, are to be deducted.

Typical questions asked when determining income are:

  • How is the income of self-employed people and entrepreneurs determined?
  • How do bonuses and other special payments, severance payments or the use of a company car affect the determination of income?
  • How is the fact that you are the (co-)owner of a property you live in taken into account under maintenance law (keyword: housing benefit)? To what extent can the loan instalments paid for this be taken into account?
  • What applies if someone does not work although they could work (keywords: fictitious income/employment obligation)? When do you have to start working again if you are looking after children?
  • Which debts can be deducted from the net income?
  • To what extent are private pension contributions recognized under maintenance law?

Experienced family lawyers can help with these and other questions. Determining income accurately is the starting point for calculating any maintenance or support, and it is often the main point of contention. The key issue is to prevent the other party from artificially minimising their income.

How do you get access to the necessary income information?

For all types of maintenance, the law provides the party requesting maintance with the right to request information from the party required to provide maintenance. Anyone who owes maintenance to another person must, upon request, provide them with information about their income from all sources, including any housing benefits they may have, as well as about their assets. This information must be supported by appropriate documentation.

In my office, we provide special questionnaires for both parties to record the relevant income, assets and deductions. This makes it easier for the parties involved to provide the relevant information and for me to evaluate such information. As soon as the relevant information is available, the actual maintenance calculation can begin.

If the person required to provide the information refuses to do so, the provision of the information and submission of supporting documents can be enforced in court. The application for the provision of information can be combined with an application for the payment of maintenance (so-called action by stages).

Child support

Children, whether legitimate or illegitimate, have a right to maintenance from their parents. As long as a child lives with both parents, the parents provide maintenance through providing care, education and the financing of their costs of the children. If a minor child lives with only one parent, e.g. after a divorce, that parent provides maintenance through the care and education of the child (so-called natural maintenance). The other parent is required to pay a sum of money for the child to the caretaker parent for the child each month (known as cash maintenance).

There is an extended maintenance obligation towards minor children. The parent with a cash maintenance obligation must use all available means to at least ensure the child’s minimum maintenance. If necessary, he or she must take a second job.

Adult children (over eighteen) no longer require care. Therefore, both parents are required to provide them with cash maintenance. This also applies if the child continues to live with one parent. This parent’s responsibility to pay child support begins in the night of the child’s 18th birthday. The parents’ responsbility for the maintenance of their adult children is based on the ratio of their respective incomes. However, the parent with whom the child lives can offset his or her cash maintenance payment against a so-called allowance (for board and lodging).

At present, the so-called alternating custody model is relatively widespread for the care of minor children, i.e. the child is cared for and looked after alternately by both parents. If there is a large difference in income, the higher-earning parent has to make a so-called peak equalisation payment to the other parent. In this case, the child’s needs are based on the combined income of both parents. It is therefore a misconception that the alternating model automatically saves maintenance payments.

The Düsseldorf Table

When calculating child maintenance, courts and lawyers use the guidelines of the Düsseldorf Table, which is published every year in December by the Düsseldorf Higher Regional Court. You can download the current version of the table from the download section of this website.

The Düsseldorf Table is divided into fifteen salary groups (net income of the parent required to pay cash maintenance) and four age groups (of the child). For each combination of salary group and child age, Table A shows a precise amount required for the child, which the parent required to pay cash maintenance must cover. In principle, the higher the salary group and the age of the child, the more child maintenance has to be paid.

As long as the child is still a minor and is being cared for by one parent, the other parent is only required to provide cash maintenance in accordance with its own income, even if, according to recent case law, a child’s needs are generally determined based on the combined income of both parents. If the caretaker parent is also gainfully employed, this is taken into account by the courts in the internal relationship between the parents, since it can be assumed that the child also benefits from the income of the caretaker parent. The cash maintenance provided by the caretaker parent to the child is then taken into account as a deductible item when calculating the spousal maintenance.

However, for children living in Germany, part of the child’s needs as determined in this way is covered by the state child benefit, which currently amounts to €250.00 per child and which is generally received by the parent with whom the child lives. An application for state child benefit must be submitted to the relevant family benefits office. For minor children (under eighteen), half of the child benefit is credited against the child’s maintenance need, so that the actual maintenance amount payable is €125.00 lower than the amount of maintenance need shown in Table A of the Düsseldorf Table. The maintenance amounts to be paid can be found in the appendix ‘Table of Payment Amounts’ at the end of the Düsseldorf Table.

The needs of adult children are also determined by the combined income of both parents. The state child benefit is to be fully offset against this, i.e. the maintenance amounts to be paid jointly by the parents are each €250.00 lower than the needs-based amounts according to Table A. The parents must pay maintenance based on their respective incomes, whereby the appropriate self-maintenance (€1,750.00) and the maintenance of underage siblings must be deducted in advance.

The tables are tailored to the case in which the person who is responsible for maintenance owes maintenance to two persons. If there is a larger or smaller number of dependents, upward or downward adjustments within the table will be made as a rule.

In addition to the maintenance amounts shown in the table, which are available to the child to cover its normal living expenses, there are also so-called additional and special needs. Additional needs are regularly recurring or foreseeable additional expenses (e.g. for expensive hobbies, private schools, tutoring or therapy costs). Special needs are extraordinary and unforeseeable expenses (e.g. for dental braces and other unforeseeable medical treatments). For both types of additional needs, the parents are liable pro rata based on their income.

Self-maintenance

The Düsseldorf table also sets forth how much of the income of the parent responsible for maintenance this parent is allowed to retain for itself. For minor children and children under the age of twenty-one who are still in general school education (privileged children of full age), the amount to be retained (necessary self-maintenance) of a person who is gainfully employed is €1,450.00 per month, including €520.00 for rent and heating. For non-privileged children of full age, the amount to be retained (reasonable self-maintenance) is €1,750.00, including €650.00 for rentals with heating. If housing costs are higher, the self-maintenance increases, provided that the housing costs are not unreasonable.

Educational support

Child maintenance is owed in Germany until the child has achieved a permanent position in life in which it can support itself. The parents have to finance an appropriate education for the child that corresponds to the child’s aptitudes and abilities and is economically affordable for the parents.

In return, the child is required to complete its studies or job vocation with diligence and determination and to complete them within a reasonable and customary period of time. The parents are not required to finance lazy students. The child has to inform the parents about the progress of his or her education and provide them with evidence of the achievement of (intermediate) degrees.

If the child still wants to study after completing vocational training, the parents are still required to pay maintenance, provided that the formal studies begin shortly after the conclusion of the vocational training, the subject matter of the studies are closely related to the vocational training, and that the additional costs are economically reasonable for the parents.

Spousal support

There is a maintenance obligation from one spouse to the other during the entire period of separation until the final divorce has become legally binding and often even after that. However, under German law, separation maintenance and post-marital maintenance have different conditions and must each be asserted separately in court. Court orders or notarial deeds for separation maintenance can no longer be enforced after the divorce has become final. Requests for information can be made again for post-marital maintenance, since this is a different claim from the claim for maintenance during the separation.
In principle, the maintenance for the spouse is to be determined based on the principle of half-division. The amount of maintenance to be received depends on the couple´s financial situation during their marriage. Earned and unearned income (including a so-called housing benefit) generated by both spouses and available for consumption during their time living together, after deducting all relevant expenses and child support for minor children and children treated as such, as well as a working bonus of 10% of earned income, is to be divided equally between the spouses, so that both have the same amount of money to live on.

Relative saturation limit

In high income families, the courts assume that not all of the income was consumed during the marriage, but that some of it went into the accumulation of wealth. Therefore, the half-division principle only applies up to a certain limit, currently up to a maintenance need of €4,950.00 (the so-called relative saturation limit). A spouse who wishes to claim a higher maintenance need must either provide a specific accounting of what they spent each month during the marriage (on food, clothing, holidays, leisure activities, etc.) or prove that the claimed amount was regularly consumed and did not go towards the accumulation of assets.

Self-maintenance

The monthly personal requirement (self-maintenance) of a person owing maintenance to its spouse (maintenance debtor) during the separation or after the divorce is €1,600.00 for a gainfully employed maintenance debtor and €1,475.00 for a non-employed maintenance debtor, including €520.00 for rent with heating. If the housing costs are higher, the self-maintenance increases, provided that the housing costs are not unreasonable.

Old age pension support

As soon as the petition for divorce has been filed, the rights of a spouse to participate in the pension rights of the other spouse via pension equalization no longer applies. From that moment on, the spouse entitled to maintenance can also claim so-called old-age pension support. The amount of this is determined according to the so-called Bremen Table and the old age pension support is to be used for a specific purpose, namely to establish an appropriate pension and disability insurance.

When and for how long do you still receive maintenance after the divorce?

After a divorce the principle of personal responsibility applies. Spousal maintenance can only be demanded if the law expressly provides for it, in particular

  • if you are caring for common children;

A claim for maintenance exists until the child is three years old, and thereafter according to the principles of equity, with child care and other needs playing a central role.

  • if you are unable to work or can only work to a limited extent due to age or illness;
  • if you are unemployed or if you are studying or doing vocational training because you have not previously started or completed your studies or vocational training due to marriage.

The main application of post-divorce spousal maintenance is the so-called top-up maintenance. This is intended to enable the spouse who was not the principal bread winner but who now also works to maintain the standard of living enjoyed during the marriage for a transitional period after the divorce. As a rule, top-up maintenance is owed for about a third to a quarter of the  time of marriage.  Courts generally look at the existence of marriage-related disadvantages, the duration of the marriage and other aspects in order to determine the duration of post-marital maintenance.

Since the legal rules in this area are relatively vague, disputes about this are particularly common. In view of the complexity of the case law and the maintenance calculation itself, legal advice is now practically indispensable.

When does spousal maintenance cease?

In the event of remarriage or the death of the spouse entitled to maintenance, the claim for maintenance ceases.

In special cases, the claim for maintenance can be reduced, limited in time or even denied altogether, in particular:

  • in the case of marriages of short duration, usually 2 to 3 years (however, this only applies to post-marital maintenance, not to separation maintenance),
  • if the person entitled to maintenance lives in a significant relationship – as a rule, this requires two to three years of living together, unless special circumstances apply, such as the birth of a joint child or the joint purchase of a house – or
  • if the person entitled to maintenance has contributed nothing to the family maintenance for a long period of time before the separation, despite its obligation to do so.

Alimony for single parents

The mother of a child born out of wedlock has a right to maintenance from the child’s father for a period of six weeks before the birth until eight weeks after the birth and beyond that time period if she is unable to pursue any gainful employment due to pregnancy-related problems or due to the care and upbringing of the child. She can also claim the costs incurred by pregnancy and childbirth.

In principle, the mother cannot be expected to work during the first three years of her child’s life. After that, there is a claim to maintenance according to principles of equity. If a child-friendly care facility is available, the mother has an obligation to give the child to the care of such a facility. In this respect, the legal situation is the same as for children born in wedlock.

If the child’s father looks after the child, he is entitled to claim maintenance from the mother.

The amount of maintenance is based, on the one hand, on the standard of living of the parent caring for the child and, on the other hand, on the financial means of the other parent. However, no more maintenance can be claimed than could be claimed in the event of a failed marriage.

Multiple dependents – who has priority?

If you owe maintenance to several people but do not have enough money for all of them, the law provides for the following order:

First comes the maintenance for:

  • children under 18 years of age, whether born in or out of wedlock, and
  • for unmarried children under 21 years of age who are completing a general school education, as long as they live in the household of their parents or one of their parents, regardless of whether there was a marriage with the other parent or not.

In second place is maintenance for:

  • the other parent of a mutual child, if this parent is caring for the child and is therefore entitled to maintenance, and
  • spouses in marriages of long duration, whether divorced or not.

In third place is maintenance for other spouses, whether divorced or not. The last category includes all other persons.

Claims for maintenance must be timely made!

As a rule, maintenance for the past can only be claimed if the person liable to pay maintenance has previously been asked to provide income information in order to determine the maintenance claims, if he or she has been put in default or sued for maintenance.

Therefore, seek legal advice as soon as possible after a separation in order not to lose your maintenance claims!

What is a maintenance title?

As a person eligible to receive maintenance, you have an interest in obtaining a so-called ‘title’ that you can use to enforce your maintenance claim, if necessary. Enforceable maintenance titles are family court orders, court settlements, notarial deeds and youth welfare office deeds (for child maintenance). The creation of a title can be requested even if the person liable to pay maintenance has always fulfilled its payment obligations.

For child support, the youth welfare office certificate is the most cost-effective option for a maintenance order. It can be issued free of charge by the relevant youth welfare office.

Arrangements for spousal support are usually found in a separation and divorce agreement, which has to be either notarised by a notary public or recorded by the family court at the divorce hearing. In this case, the enforcement title is the notarial deed or the court record containing the settlement.

Contractual maintenance arrangements

When making contractual arrangements for child and spousal support during a separation, particular attention must be paid to the provision of § 1614 of the German Civil Code (BGB), according to which a waiver of maintenance for the future – even a (deliberate or unintentional) partial waiver – is invalid. This is occasionally ignored. Such waiver can even infect the entire Separation and Divorce Agreement and render it void.

According to German case law, an agreement whereby only the judicial enforcement of child or separation maintenance is waived is also inadmissible.

Special care should therefore be taken here. Be sure to consult experienced family lawyers when drawing up legally watertight agreements on child and spousal maintenance. They will advise you on permissible forms, such as a one-off settlement for a (legally permissible) waiver of post-marital maintenance.

Tax notice: Limited real splitting under German tax law

Maintenance payments to a divorced or (throughout the entire year) permanently separated spouse can be deducted as special expenses up to a maximum of €13,805.00 per year according to the German Income Tax Act. For the person entitled to maintenance, this means that he or she must pay tax on the maintenance payments received up to the maximum amount as income.

As a rule, the tax savings for the person paying the maintenance are much higher than the tax burden for the person receiving the maintenance, so that this so-called “limited real splitting” increases the total income on which the family lives after separation.

The recipient of the maintenance payments must give its consent to the application of limited real splitting for tax purposes. In practice, this is done by signing the so-called Attachment U to the tax return. Once consent has been given, it also applies to subsequent years, unless it is expressly revoked with the tax office.

According to the case law of the Federal Court of Justice, the maintenance recipient is required, on the basis of the continued effect of marital solidarity, to give its consent to limited real splitting if the maintenance payer agrees to compensate for all disadvantages incurred by the maintenance recipient as a result of the taxation of the maintenance.

I will be happy to help enforceing such claims against the other spouse in connection with limited real splitting.

Contact

You can contact me at any time by phone during office hours or by email outside office hours if you have any legal questions regarding maintenance. I will get back to you as soon as possible.

Mon-Fri: 9.00 – 13.00 and 14.00 – 18.00
T: 06174 – 935 75 70
E: marx@familienrecht-marx.de

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