Maintenance Law

Spouses and relatives in the direct line – in particular parents and children – owe each other maintenance (Unterhalt). This is laid down in the German Civil Code (Bürgerliches Gesetzbuch, BGB). In practice, maintenance questions are especially relevant in the event of a divorce.

01 Child maintenance

During a marriage, minor children are generally provided for in the shared household through what is known as maintenance in kind (Naturalunterhalt). There they receive accommodation, food, clothing and so on. In the event of a divorce, this changes. The child then usually lives exclusively or mainly with one parent (the so-called "residence model", Residenzmodell). The other parent is then obliged to pay what is known as cash maintenance (Barunterhalt), that is, to make a monetary payment.

How much maintenance has to be paid for a child is determined by the nationally recognised Düsseldorf Table (Düsseldorfer Tabelle) (in German). It applies to all maintenance debtors on ordinary incomes with net earnings below €5,501 per month. If income exceeds this limit, maintenance must be determined individually on a case-by-case basis. The Düsseldorf Table is a guideline developed by the Düsseldorf Higher Regional Court (Oberlandesgericht Düsseldorf) and is updated regularly. The family divisions of the Southern German Higher Regional Courts additionally apply their own, differing guidelines (in German).

The Düsseldorf Table differentiates, first, according to the income brackets (salary and other income) of the parents or the maintenance debtor and, second, according to the age groups of the children. In addition, higher rates apply for the first and second child than for the third, fourth and so on.

In children's everyday lives, additional or special needs (Mehr- oder Sonderbedarf) may also arise beyond the flat-rate table amounts, for example for medical treatment or private schools. The parent liable for maintenance does not have to bear these alone. The resulting costs are shared between the parents in proportion to their incomes.

A frequent point of dispute in maintenance matters is the income of the maintenance debtor. Here it must be determined precisely in each individual case which income is to be taken into account and which expenses and debts (e.g. loan instalments) are to be deducted from it.

Tip A maintenance debtor in employment with children under 21 who are still at school is entitled to a monthly personal allowance (Selbstbehalt) of €1,080. This is deducted from their calculated net income.

The maintenance calculation is particularly complex where the parents have chosen what is known as a shared parenting model (Wechselmodell), in which the child lives alternately with one parent and the other. This does not mean that no maintenance has to be paid. Instead, both parents become liable for maintenance. The higher-earning parent has to pay more, even if the child lives with them half of the time. The mutual maintenance claims can, however, be offset against each other.

Your lawyer Dr. Christina Schmidt advises you comprehensively and competently on all questions of child maintenance. For the calculation, she examines in particular detail which income of the maintenance debtor must be taken into account and which expenses and debts are to be deducted.

02 Separation maintenance

When a married couple wishes to divorce and therefore separates, separation maintenance (Trennungsunterhalt) may become payable. This is always a possibility where one spouse is the sole earner or has a significantly higher income than the other. The entitlement covers the period from the separation – that is, from the end of living together in the same household – until the divorce decree becomes final.

The background is that marital obligations continue to exist for as long as a couple is not divorced. The partners therefore remain financially responsible for each other and must ensure that the other partner is provided for. If, for example, one spouse has so far not worked or has only worked part-time, they should not be forced to completely reorient their career during the separation period. After all, it is not yet certain whether the marriage will actually end in divorce.

The amount of separation maintenance depends on the income that shaped the couple's standard of living during the marriage (eheliche Verhältnisse). In Southern Germany, the maintenance guidelines of the higher courts are used for the calculation. The amount of maintenance is limited by the payer's so-called personal allowance. This is currently €1,200 per month.

Important to know In individual cases, separation maintenance may be limited or excluded on grounds of so-called gross inequity (grobe Unbilligkeit). This may be considered where granting maintenance would be regarded as extremely unjust – for example because the entitled spouse has committed a crime against the other spouse.

Your lawyer Dr. Christina Schmidt will examine for you whether you are entitled to separation maintenance or have to pay it. She will also determine the amount of the maintenance claim.

03 Post-marital maintenance

Post-marital maintenance (nachehelicher Unterhalt) is only available once the divorce has become final. The relevant application can either be filed together with the divorce petition or made separately.

An important difference from separation maintenance: a divorced person cannot claim maintenance merely because they have a lower income than their former spouse. Instead, after a divorce the principle of personal responsibility (Grundsatz der Eigenverantwortung) applies. Everyone has to support themselves. Only if someone cannot adequately provide for their own living costs and is in need can they have a maintenance claim against their former spouse. The prerequisite, however, is that the former partner is in turn able to pay.

The law distinguishes the following grounds for maintenance, each of which must exist at the time of the divorce:

• Childcare maintenance (Betreuungsunterhalt) for looking after children of the marriage. This can be claimed by a parent who is unable to work, or unable to work full-time, because they are looking after young children. The entitlement exists for at least three years after the child's birth.
• Maintenance due to age: the entitlement exists where a divorced person can no longer be expected to work because of their age or can no longer find employment.
• Maintenance due to illness: anyone who is unable to work because of illness is also entitled to post-marital maintenance.
• Maintenance due to unemployment: a divorced person who cannot find a job despite actively looking for work can likewise claim maintenance from their former partner for that period.
• Top-up maintenance (Aufstockungsunterhalt) is now only available in rare cases. It is intended to protect spouses who, despite working, earn only a low income that bears no relation to the standard of living during the marriage from a decline in social status. The entitlement is, however, limited to exceptional cases, since the principle of personal responsibility otherwise applies.
• Maintenance for education, further training and retraining: if a spouse did not begin vocational training or broke it off because of the marriage, they may be entitled to maintenance in order to complete the training. They then receive it for the duration of the training.
• Finally, there is also maintenance on grounds of equity (Unterhalt aus Billigkeitsgründen). This only comes into consideration where there are serious reasons why the former partner cannot be expected to work. In addition, refusing maintenance must appear extremely unjust in light of all the circumstances. Classic example: the former spouse is looking after a young child at home. As it is not a joint child, however, they do not receive childcare maintenance.

The calculation of maintenance largely follows the same rules as for separation maintenance. It is based on the marital living conditions at the time of the divorce. Since the person entitled to maintenance must be in need, however, their own income and other earnings, such as rental income, are taken into account. As with separation maintenance, the maintenance debtor's personal allowance of €1,200 also applies to post-marital maintenance.

Post-marital maintenance can also be grossly unjust and therefore limited or excluded. Example: the person entitled to maintenance has demonstrably brought about their own neediness on purpose.

Important to know Unlike separation maintenance, post-marital maintenance can also be waived, for example by a prenuptial agreement (Ehevertrag) or an agreement reached in the divorce proceedings.

Dr. Christina Schmidt advises and supports you in asserting or defending against claims for post-marital maintenance.

04 Maintenance between unmarried parents

Unmarried parents can also be obliged to pay each other maintenance. For example, a mother who cannot be expected to work because she is caring for or raising a child can claim maintenance from the biological father for three years after the birth. If the father looks after the child, he has this claim against the mother.

Maintenance for the child is independent of this and follows the same rules as maintenance for children of married parents.

Dr. Christina Schmidt also advises parents who are not married to each other on all maintenance questions.

05 Parental maintenance

Since relatives in the direct line owe each other maintenance, parents may also have maintenance claims against their adult children (Elternunterhalt). The question often arises when parents need long-term care.

If a parent has to move into a care home, the costs are often so high that their pension and long-term care insurance do not cover them. Social assistance (Sozialhilfe) then steps in. However, the social welfare authorities often reclaim the money from the children.

Whether children have to pay for their parents depends on their income and assets. A personal allowance applies in this case, too. It is €1,800.

Dr. Christina Schmidt will examine for you whether you actually have to cover your parents' living costs and how you can defend yourself against claims made by the social welfare office (Sozialamt).

Note If a maintenance debtor has to support several people, maintenance for minor children always takes priority over all other types of maintenance!

Dr. Christina Schmidt is an expert in maintenance law and advises you at her office on Maximilianstraße in Munich on all types of maintenance and questions of maintenance calculation. She enforces your maintenance claims for you. If maintenance is being wrongly demanded from you, Dr. Schmidt will help you defend yourself successfully. She represents you not only before the Munich Local Court – Family Court (Amtsgericht München) (in German), but also before other family courts.