Ask a lawyer on the topic of Divorce law

Maintenance payment to wife

July 19, 2009 | 25,00 EUR | answered by Andreas Scholz

In April 2004, my brother's wife moved out of their shared apartment. When she found out that he would be unemployed from February 2006, she returned in December 2005. In January 2007, she separated again and moved into her own apartment. My brother filed for divorce in March 2007. He was supposed to pay €202 in maintenance from January 1st, 2007.

From January 1st, 2007, he started his own business in the property maintenance service sector at the age of 56 with the help of the labor office and earned around €2400, from which taxes, health insurance, pension insurance, accountant fees, etc. still need to be paid. His wife is employed as a cashier for 20 hours a week and has a net monthly income of about €900. She also receives a 13th month's salary, holiday pay, and meal vouchers totaling about €330, which have not been taken into account.

A part-time income of €160 per month was noted by the court. In spring 2008, the first hearing took place in Mannheim, but the divorce was not granted due to disagreements over maintenance payments. On the advice of his lawyer, my brother paid €100. In August 2008, the opposing lawyer had both my brother's private and business accounts seized, even though there was no legal judgment. After four weeks of stress and being without money, he managed to lift the seizure and regain access to his money.

In early October, there was another hearing in Mannheim, resulting in the divorce being granted. Maintenance payments were set at €202 from January 1st, 2007, to the date of divorce, and €332 until October 2009. From November 1st, 2009, to June 30th, 2016, the monthly maintenance amount is €65. (Since November 2008, he has been paying €202 monthly.)

My brother or his lawyer has filed an appeal against this judgment. The recent hearing in Karlsruhe revealed that the divorce has been legally valid since March 1st, 2009, and the higher maintenance payments are now in effect. It should also be mentioned that my sister-in-law was ill from June 2008 to February 2009 but has been back at work since March.

In December 2008, his ex-wife's lawyer initiated a seizure of approximately €4640 from his employer. Feeling worn down, my brother agreed to a loan from this employer (to be repaid monthly at around €360). The fact is, he now has very little left to live on. Every three months, he has to figure out how to pay taxes to the tax office, not to mention emergencies like car repairs, etc. He is sinking deeper into financial difficulties, despite over 30 years of work and trying to support himself.

With no final

Andreas Scholz

Dear questioner,

basically, the maintenance claim depends on the needs of the claimant and the ability to pay of the opponent. The adjusted net income is relevant on both sides, as this ultimately determines the amount of the maintenance claim. Whether the calculation in the case of your brother is correct, I cannot verify from here.

A provisional enforcement (before the judgment becomes final) without providing security is possible for maintenance claims, as the law provides for this. For this reason, the divorced spouse was able to initiate the seizure.

If the income should significantly decrease due to lower earnings, he has the option to file a so-called modification lawsuit to adjust the maintenance claim of the divorced spouse to his actual ability to pay.

Your brother can invoke a self-retention of €1000. He may not fall below this amount due to enforcement of maintenance. It is important to consider that when calculating whether the self-retention limit has been exceeded, the adjusted net income should be used. The monthly installments that your brother now pays to the client cannot be taken into account.

In any case, your brother can avoid seizure if he has no more than €989 left from his income. Whether it is advisable to appeal to the creditor in this regard is questionable, especially if your brother is economically dependent on them and there is a risk that orders may be withdrawn if he appeals to the seizure limit.

As a last resort, your brother can negotiate with the divorced spouse to suspend or reduce the maintenance for the period when he is facing difficulties.

Furthermore, I am not aware of the reason for the ongoing dispute in court. However, the forthcoming judgment may also improve the situation for your brother.

I hope this provides you with some initial guidance. If you have any questions, feel free to ask.

Kind regards,

Andreas Scholz, Attorney