Why cheating husband doesn't want a divorce

Separation maintenance

That is how much maintenance there is in separating from a spouse

Dr. Britta Beate Schön
Legal Expert As of August 03, 2020

Dr. Britta Beate Schön

Britta Beate Schön is responsible for all legal issues at Finanztip. The doctor of law and attorney was head of the legal department at financial service providers such as Telis Finanz AG and Interhyp. Before that, she taught and researched in Japan as a DAAD junior professor for German and European law. She completed her studies in Münster, Geneva, Regensburg and Leipzig. You can reach the author at [email protected]

  • If you have separated from your spouse, you may be entitled to maintenance before the divorce.
  • You can always claim separation maintenance if you have no income of your own or if your partner earns more than you do.
  • Write to your spouse to request separation support if you can't get on with your money.
  • Our checklist in the Separation Guide helps you to think about all the important points in the event of a separation.
  • Get advice from a specialist lawyer for family law when you split up.

After a few years of marriage, you find that everything is no longer working properly or that you have drifted apart. However, a separation should be carefully considered. There are many questions that you need to find an answer to. We support you with information on the subject of separation maintenance.

When are you entitled to separation maintenance?

Spouses are financially responsible for each other - even if they have separated. Because they're still married to each other. That means: Those who cannot support themselves have a claim to maintenance from the other (§ 1361 BGB). However, this only applies if the partner earns enough money to be able to pay maintenance at all. They are three requirements for a claim to separation maintenance.

1. Live apart

You must be married and now live separately. This is the case, for example, if someone has already moved out of the shared apartment.

You can too within the shared apartment live separately. But then you are no longer allowed to run a joint household. No longer shopping, cooking and eating together - everything that you probably did together before, now everyone does for himself.

Since there are legal consequences to the separation, you should record how long you have been separated from each other. You can do this with a separation letter, in which you tell your partner that you consider the marriage to have failed and that from now on you will have a separate household and separate accounts. You should send this as a registered letter / return receipt if you live separately. If you live together, you should have the letter countersigned.

Even if the spouse Lived separately from the start and do not have a joint account, there may be a claim to separation maintenance (BGH, decision of February 19, 2020, Az. XII ZB 358/19).

2. Need

Only those who are in need receive maintenance. Plus there is no fixed requirement rates as with child support, which you can find in the Düsseldorf table. The income that both spouses earned during the marriage is decisive. If a spouse has less money to live on after the separation, then they are in need.

If you did not work before the separation, you do not need to take a job in the first year of separation (BGH, judgment of November 29, 2000, Az. XII ZR 212/98). You only have to go back to work when you can be expected to do so (Section 1361 (2) BGB). The decisive factor is whether you have children together and how you organize childcare.

3. Benefits and deductible

Those who can pay maintenance without endangering their own decent livelihood are productive. Anyone who is employed must pay at least 1,280 euros per month as a Deductible remain before he has to pay separation maintenance. For people who are not gainfully employed, the deductible is EUR 1,180 according to the Düsseldorf table. This includes costs for accommodation and heating in the amount of 490 euros.

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How much separation maintenance are you entitled to?

In principle, each spouse is entitled to half of the total disposable income. But: Those who work receive a kind of employment bonus amounting to one seventh of their income.

The maintenance claim therefore amounts to three-seventh of the adjusted net income of the spouse (Düsseldorf table, page 2, B), provided that the maintenance recipient does not have his own income.

Example: One spouse has an adjusted net income of 3,200 euros. The other is not employed. The couple have no children. The person who does not work is entitled to EUR 1,371 maintenance during the separation. This corresponds to three sevenths of the partner's income.

If both spouses work, then the spouse's maintenance amounts to three sevenths of the difference of the two adjusted net incomes. So your job means that you can demand less maintenance.

Example: One spouse has an adjusted net income of 3,200 euros. The other one also works, but earns significantly less with 1,000 euros a month. The couple have no children. The difference between the two incomes is 2,200 euros. The lower-income spouse receives three-sevenths of this in separation maintenance, i.e. 943 euros per month.

According to the South German guidelines on maintenance, the claim is slightly higher. The one who works has to pay 45 percent of their adjusted net income to the ex-partner. Otherwise, the maintenance is calculated according to the above examples.

Current maintenance guidelines of the individual higher regional courts

How is the adjusted net income calculated?

There are no legal regulation how to calculate adjusted net income. Rather, the family courts are based on guidelines that their competent higher regional court has issued to standardize case law.

To calculate the maintenance claim, you start from the income before the separation. It will be there all types of income taken into account, i.e. income from self-employed and dependent work, special payments such as Christmas and holiday pay, income from renting and leasing, income from capital, tax refunds and tax back payments. An average monthly income is calculated from the total income for the year before the separation. At Self employed unlike in the case of employees, is a period of three years used to take into account any fluctuations in income.

Important: It's not just past income that matters; Foreseeable changes in the income of the person liable for maintenance must also be taken into account. This applies above all to a change in tax class after the end of the calendar year in which the separation took place. This can significantly reduce your net income. But also possible salary increases are already taken into account - even if they only apply after the separation.

From gross income are initially Taxes, social security contributions and / or reasonable, actual pension costs deduct. These include expenses for statutory health, long-term care, pension and unemployment insurance or appropriate private health and old-age provision as well as provision in the event of the need for care.

You can deduct further items from this net income:

Further deductions from net income

work-related expenses

 

 

 

Depending on the competent higher regional court, you can deduct work-related expenses at a flat rate (5% of the net income and a maximum of € 150). If you have spent more than the flat rate, you must be able to prove the deductions.

Travel expenses to work

 

 

 

 

Even if travel costs between home and work are tax-related expenses, you can also deduct these costs from your net income (€ 0.30 per kilometer driven - i.e. for the return trip).

 

Retirement costs

 

 

 

In addition to pension expenses, employees may deduct 4% of their gross annual income if they can be shown to use the costs for retirement provision.

Health insurance

 

Civil servants and the self-employed can also deduct the costs of private health insurance.

Upkeep for children

 

 

Child support has priority. You can deduct the maintenance amounts to be paid for children according to the Düsseldorf table.

 

Residential advantage

 

 

 

 

 

If your partner moves out of their own house or condominium and you stay there with the children, for example, your partner may request a usage fee for the rent-free apartment or have this offset against the separation maintenance (§ 1361b BGB).

Source: Finanztip research (as of August 2020)

Maintenance only upon request

You will only receive maintenance if you have asked your spouse to do so. To do this, you have to write a specific amount claim. If you cannot put a figure on your maintenance because you do not know exactly how much your spouse earns, you must first ask him for information about his income. Get advice from a family law attorney. This ensures that you do not forego anything that is due to you.

After the separation, new tax brackets

If a couple separates, the selected tax brackets remain in place until the end of the year. From January 1st of the following year, both spouses will be treated for tax purposes as if they were singles. So you get tax class I. If the marriage resulted in children, the spouse to whom the children are assigned receives tax class II. For the year in which the two separate, the income tax is determined according to the splitting tariff.

How long has there been a separation maintenance?

In principle, there is separation maintenance until the couple is divorced. Therefore, maintenance is still to be paid even if the spouses have been separated for a long time.

The maintenance obligation can end earlier in the following cases:

  1. The spouse now earns enough to cover his or her living.
  2. The dependent spouse could work and earn as high an income as the dependent spouse through their own professional activity.
  3. The dependent spouse lives with a new partner on a permanent basis (Section 1579 No. 2 BGB). This can already be the case after a year if the new partnership has already solidified (OLG Oldenburg, notice of November 16, 2016, Az. 4 UF 78/16).
  4. Exceptionally, a spouse can also forfeit his or her maintenance claim (Section 1361 (3) BGB in conjunction with Section 1579 No. 2 to 7 BGB), for example if the person entitled has committed a serious crime against the other.

Do you have to reclaim child support after the divorce?

Even if the separation maintenance does not apply with the divorce, this does not mean that the maintenance obligation ends. In most cases, one ex-partner still owes the other alimony after the divorce, namely the post-marital spousal alimony.

If the income situation has not changed with the divorce, the higher earner usually pays as much post-marital maintenance as he paid separation maintenance. But: If you want maintenance even after the divorce, you have to ask your ex-partner to pay maintenance again. A warning issued before the divorce could only concern the separation maintenance. It loses its effectiveness after the divorce.

The same applies if a court has obliged the person liable for maintenance to pay separation maintenance. The verdict is only valid until the divorce.

Example: The court sentenced the husband on March 1 to pay separation maintenance. The marriage was divorced on June 30th. After that, the husband no longer pays child support. In September, the ex-wife retrospectively demands maintenance for the months of July and August. She has no claim to that. Because the judgment only concerned the separation maintenance and does not apply to the time after the divorce. The husband therefore only has to pay maintenance again after the new call in September. The wife should have asked for maintenance again immediately after the divorce.

Deduct maintenance from tax

You can deduct maintenance payments to your ex-partner as special expenses from the tax. You can claim up to 13,805 euros per year. You can find more information in the guide to maintenance payments as special expenses.

Tax return helper

Dr. Britta Beate Schön

Dr. Britta Beate Schön

Britta Beate Schön is responsible for all legal issues at Finanztip. The doctor of law and attorney was head of the legal department at financial service providers such as Telis Finanz AG and Interhyp. Before that, she taught and researched in Japan as a DAAD junior professor for German and European law. She completed her studies in Münster, Geneva, Regensburg and Leipzig. You can reach the author at [email protected]

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