Alimony in case of divorce
In principle, each spouse must provide for his or her own maintenance after a divorce. If this is not reasonable for one spouse - including adequate retirement provision - he or she can claim post-marital maintenance. A number of aspects must be taken into account in this context.
If the marriage is life-defining, the last marital standard is to be continued as far as possible. A life-defining marriage is one from which children have been born or which has lasted ten years or longer. In the case of a marriage lasting between five and ten years (without children), the circumstances of the individual case are decisive. A childless marriage lasting less than five years is not considered to be life-defining and may at most entitle the spouse to maintenance payments to compensate for a marriage-related disadvantage.
If the couple has been separated for about ten years (separation until divorce decree), the standard of living during the separation is decisive, unless it is higher than the last standard before the separation (for reasons within the sphere of influence of the person entitled to maintenance). In the case of a non-living marriage, the reference standard is the premarital standard of living.
A spouse obliged to pay maintenance may only be claimed up to his or her subsistence level; this is protected. However, the taxes of the person obliged to pay maintenance (with the exception of withholding taxes) are not taken into account.
For children, there can be maintenance in kind, cash and care. Maintenance in kind means de facto care and cohabitation with a minor child. It is to be taken into account when transferring cash maintenance, as maintenance in kind and cash maintenance are equivalent. Cash maintenance includes the monetary payments that the parents make for the child.
Child care maintenance covers the care-related difference between income (self-support capacity) of a parent caring for the child and the basic needs of this parent.
In the case of child support, account must be taken of the child's schooling levels and other circumstances over several phases, also taking into account the tax burden. The calculation is challenging if done correctly. Tables and percentage calculations no longer satisfy the legal requirements.
Maintenance for minor children generally takes precedence over spousal maintenance.
The starting point for calculating child maintenance is a child's due maintenance, i.e. his or her standard of living before the separation, plus additional costs due to the separation.
The Federal Supreme Court has declared the two-step method to be the only one applicable. Under this method, income and expenses are taken into account comprehensively. The two-step method has a holistic approach.
The basic concept involves the following steps:
- The income of both spouses and, if applicable, the children is determined.
- Basic needs are calculated for all family members.
- The available financial means are distributed among the family members according to the basic needs by means of maintenance payments.
- The subsistence minimum of the person obliged to pay maintenance is not touched. Any surplus is distributed among all.
The method requires a cash flow calculation. First, the subsistence minimum of the obligor (without taxes) is covered. Then the child support is to be paid, whereby own and third party support have equal priority. When imposing cash maintenance on minor children, it must be taken into account who cares for them and to what extent (maintenance in kind). Subsequently, the care maintenance is financed, then the postmarital maintenance with provision maintenance. If a surplus remains, it is to be divided among the family members. This is to ensure a fair distribution of the available funds, taking into account the needs of all.
Phase calculations, including tax calculations, are to be carried out for the different school levels of the children and, if necessary, for the varying life stages of the divorced spouses.