RA Andreas Scholz Separation Allowance / Housing Benefit
July 24, 2009 | 25,00 EUR | answered by Andreas Scholz
Dear Mr. Scholz,
In your response to my inquiry dated 23.07.09, you informed me that the jointly used single-family home is calculated at 1/2 for the calculation of the housing benefit. Is it correct to assume that this rule does not apply because the single-family home has been occupied solely by my wife for several years now, and that the total square footage can be used instead?
I have been living in one of our condominiums for years.
If the adjusted net income, taking into account the deductible of 1000 euros, for example, is only 300 euros, would that be the amount to be paid as separation allowance, or only a portion of it? Or what about a remainder of 1500 euros. Do I also benefit from the available adjusted net income?
Dear questioner,
if the adjusted net income is less than 1000,- euros, you can no longer claim (separation) maintenance. For example, at 1500,- euros, only to the extent that 1000,- is not undercut.
I'm not quite clear what you mean by your question about whether you also participate in the adjusted net income. From your perspective, it makes sense to have the lowest possible adjusted net income in order to keep the difference between your wife's adjusted net income as low as possible, thereby keeping the maintenance obligation on you as low as possible.
Regarding the housing benefit in your case:
If the marriage is (finally) irretrievably broken and therefore a restoration of the marital community cannot be expected, the spouse remaining in the apartment can generally be attributed the full value of the rent-free use of the former family home as of the time of service of the divorce petition (as per BGH of 05.03.2008 - XII ZR 22/06 - FamRZ 2008, 963), and in individual cases, the attribution of the full housing benefit may also be justified before the service of the divorce petition (OLG Cologne of 15.07.2008 - 4 UF 253/07 - OLGR Cologne 2008, 800). Therefore, if it is now clear in your case that the restoration of the marital community is no longer to be expected, your wife can be attributed from the point at which this was clear.
I hope this information helps.
Sincerely,
Andreas Scholz, Attorney
