Maintenance agreement
July 29, 2009 | 20,00 EUR | answered by Andreas Scholz
My question:
My husband and I got divorced in March 2008. During the negotiation, a maintenance agreement was reached. According to this agreement, my husband has to pay me a fixed maintenance amount for 4 years. This agreement can only be modified in case of significant, involuntary changes in income due to unemployment or illness, or if I were to remarry. Otherwise, the agreement is explicitly not modifiable. A reassessment and modification can only be requested after the expiration of the 4-year period.
Now my husband has informed me that he will become a father in August 2009 and that the maintenance agreement needs to be modified because he now has to provide support for the child and the child's mother. He has been living with this woman for a few months.
Is this agreement really modifiable due to these additional individuals, even though it was not stated in the contract?
Dear questioner,
You have agreed on the maintenance claim contractually and have probably also expressly regulated cases in which your husband is entitled to request a modification.
As is often the case in legal matters, your question can be answered with a "it depends":
The adjustment of a maintenance agreement to changed circumstances is done solely according to the rules of substantive law. For the question of which actual circumstances were the basis of the maintenance agreement and which changes therefore lead to an adjustment of the contract, § 313 (1) BGB, it depends on the ideas that were decisive for the parties in determining the maintenance in the contract. The adjustment is therefore possible if the future circumstances, which were not part of the contract and justify a modification, were not readily recognizable or foreseeable at the time of the contract, so that the parties, if they had foreseen the significant changes, would not have concluded the contract or would have done so with a different content (Wendl/Staudigl, The maintenance law in family court practice, 7th ed., para. 601, 601 a to § 6).
Therefore, in your case, it would be relevant to ask what the basis of the maintenance agreement was in your specific case. If both of you were in agreement that newly arising maintenance obligations should not be taken into account, then your husband could not request an adjustment. The fact that certain exclusionary circumstances have been formulated indicates that, from the range of possibilities that could have justified an adjustment, only those formulated should be considered, so that subsequently arising maintenance obligations should probably not entitle to an adjustment according to your mutual understanding, even though such a development was not excluded at the time of the contract.
If you do not agree to such an adjustment out of court, your husband can only demand and achieve it in court under the aforementioned conditions. He is also required to provide evidence for the facts that should justify his claim.
I hope this provides you with a first orientation on the topics you have raised. If you have any further questions, please feel free to ask.
Best regards,
Andreas Scholz, attorney
