Post-marital maintenance

Post-marital maintenance refers to maintenance for the period after a legally binding divorce.

Basic requirements for entitlement to post-marital maintenance

Post-marital maintenance is subject to a number of basic requirements. The person requesting maintenance must actually be in need of maintenance. Accordingly, the maintenance debtor must be able to pay the maintenance claimed. Other maintenance obligations of the maintenance debtor are often included here, which are in a hierarchical relationship to each other.

Burden of proof for the claim to post-marital maintenance

The burden of presentation and proof for a claim to post-marital maintenance lies with the party seeking post-marital maintenance.

Limitation of post-marital maintenance

Following the new regulation of maintenance law as a result of the maintenance reform in force since 1 January 2008, payers are paying more attention to limiting and/or restricting maintenance claims, even if the marriage has lasted a long time. On the part of those entitled to maintenance, it is increasingly necessary to clarify the extent to which marriage-related disadvantages justify an indefinite or unlimited maintenance payment. Both positions can also play a role in the context of changes to existing maintenance arrangements.

Exclusion or reduction of maintenance due to gross inequity

The special circumstances of an individual case may mean that the payment of post-marital maintenance appears to be grossly unreasonable. The maintenance debtor can then no longer be reasonably expected to continue paying maintenance. In this respect, the standard of good faith of the BGB applies. The legal text lists seven standard examples of gross inequity. Examples include cases in which the marriage was only of short duration, the person entitled to maintenance lives in a stable cohabitation or has wilfully caused his or her neediness. A crime or serious intentional offence against the maintenance debtor or a close relative can also lead to gross inequity.

The legislator has not conclusively regulated the cases in which post-marital maintenance is excluded or can be reduced. It is therefore always necessary to take a close look at the individual case in order to be able to make a well-founded statement.

Post-marital maintenance due to childcare

The entitlement to post-marital maintenance on the basis of childcare is of great practical importance. The divorced parent who takes on the care of joint children is often restricted or prevented from pursuing a professional activity. This regularly results in a need for maintenance.

Up to three years after the birth of the youngest joint child, the parent caring for the child can demand maintenance accordingly without being obliged to earn a living. Post-marital maintenance due to childcare can also continue after this period as long as and to the extent that this is legally appropriate. The primary reasons for an extension often arise from the needs of the child. For example, a child may be in particular need of care due to chronic illness or other individual reasons.