People are often concerned about the financial consequences of a divorce. Some worry about having to support their (ex-)partner financially for the rest of their lives. Others fear no or too little spousal support from the other person. The fact is that a divorce is rarely accompanied by an economic improvement. Simply because a divorce does not magically create more money, but suddenly twice as many households have to be served.
When is a person entitled to spousal support?
One is entitled to adequate post-marital maintenance if the higher-earning partner was divorced “at fault”. In other words, a court has ruled that the other person is solely or predominantly to blame for the breakdown of the marriage. “Winning” post-marital maintenance or support can be a lengthy and (emotionally) costly process. It is often difficult to prove in court proceedings who is “to blame” for the breakdown of the marriage. Of course, there is also the possibility of agreeing on post-marital maintenance within the framework of a divorce by mutual consent.
What is often not known is that even a claim to maintenance can be subsequently lost again. For example, if the person entitled to maintenance is guilty of (particularly) serious misconduct against the maintenance payer(s) after the divorce.
It must be severe misconduct, so that a further maintenance payment is simply no longer reasonable. For example, reports to the tax authorities or unjustified criminal charges against the maintenance payer are possible. Vicious insults, threats, publication of secrets or physical assaults can also lead to a forfeiture of post-marital maintenance. If there are joint children, maliciously blocking contact with the children may be grounds for forfeiture of maintenance. The person paying maintenance must prove such (mis)conduct on the part of the person entitled to maintenance. If this is successful, the maintenance claim is extinguished forever.
Divorce maintenance or support despite new partnership?
If the person entitled to spousal support enters into a new cohabitation, the maintenance claim is “suspended”. Usually, this is also the case if post-marital maintenance has been agreed upon in a divorce settlement and it has not been explicitly agreed that a new relationship should not have any influence on maintenance either. A cohabitation exists in principle if two people have an economic/residential and sexual community. An example: A wealthy woman is obliged to pay her ex-husband post-marital maintenance because the marriage was divorced through her sole fault. If the man’s new girlfriend moves in with him a while later, the wealthy ex-wife does not have to pay maintenance as long as the new relationship lasts. This means that if the man and his new girlfriend separate after two years and the ex-husband asserts his claim to maintenance, the ex-wife must pay maintenance again.
The situation is different in the case of a remarriage of the person entitled to maintenance: If, for example, the well-earning husband is ordered to pay maintenance in the course of the divorce and the wife later remarries, her claim to maintenance lapses completely and is not revived even if she divorces. Here, too, it is possible to contractually agree that the maintenance shall not expire even in the case of remarriage.
Since post-marital maintenance is often an issue not only in contentious divorce proceedings, but also in a dissolution of marriage by mutual consent, it is worthwhile to also consider new cohabitation or marriages in divorce agreements.
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