retroactive spousal support claim
June 23, 2011 | 35,00 EUR | answered by Jan Wilking
Hello,
Several years ago, my brother was unable to pay child support for his 3 children due to unemployment. The maintenance advance provided by the youth welfare office has since been repaid by him.
His divorced wife did not receive spousal support from him during the period of his unemployment. It is unclear how she survived during this time, probably through private donations, as she did not apply for social assistance. She is demanding payment of the unpaid spousal support in the amount of approximately 12,000 euros. So far, my brother has been making monthly payments of 50 euros towards this sum. The divorced wife suspects that my brother's income is higher than stated after remarrying, wants higher installment payments, and is considering filing a lawsuit.
Does she have any right to this retroactive payment, since she apparently managed to cover her expenses at that time with her own resources?
And will the income of my brother's second wife be taken into account in an application for legal aid?
Dear Seeker of Advice,
I am happy to answer your inquiry taking into account the facts you have provided and your contribution as follows:
Your brother must pay the arrears of maintenance if the maintenance claim is legally established and there has been no modification due to changed financial circumstances (unemployment) within the framework of a modification lawsuit. The arrears are the difference between the legally established claim and the actual payments made. However, it is important to consider the limitation period of 3 years according to § 197 paragraph 2 of the Civil Code.
If such a maintenance order does not exist, there is no maintenance claim for the past, as your brother was likely unable to pay due to unemployment according to § 1581 of the Civil Code and generally does not have to make retroactive payments for the period of inability to pay, even if his financial situation improves later (unless § 1585b of the Civil Code applies exceptionally). In addition, there may have been a lack of need on the part of the former wife, at least considering that no maintenance was claimed during the period, which could lead to a forfeiture.
The income of your brother's new spouse plays a role in two ways:
First, the court will assess whether your brother is required to pay maintenance to his new spouse. If so, this will be taken into account in his favor. On the other hand, the court may reject the application for legal aid if the new spouse has a high income and is able to finance the entire legal process. The needy spouse is then obligated to request an advance on legal costs from their partner and, if necessary, enforce it through the courts, according to § 1360a paragraph 4 of the Civil Code.
I hope this provides you with a helpful initial orientation. If you have any uncertainties, please use the free follow-up function.
Please note that in this initial consultation without knowledge of all circumstances, I cannot provide a definitive recommendation. If you require a thorough assessment of the situation, I recommend contacting a lawyer to discuss the matter in detail with access to all relevant documents.
Best regards
