Separation alimony: when do you get it?

Separation maintenance is intended to ensure that both spouses are adequately provided for financially in the period between separation and divorce. However, certain conditions must be met in order to be able to receive alimony. You can find out what these are here.

Separation alimony is a financial compensation paid between two spouses who have separated and are seeking a divorce. You are entitled to maintenance if one of the spouses has a significantly lower income than the other. The entitlement to separation maintenance applies to the period from the separation to the final divorce.

Separation alimony is not to be confused with post-marital spousal maintenance. This only applies after the divorce and is subject to much stricter requirements than separation maintenance. You can find detailed information on this in our article “Spousal maintenance – when are you entitled to it?” .

Separation support: requirements

The basic prerequisite for receiving separation maintenance is, of course, that the two spouses live separately. In the eyes of the law, being separated means:

  • At least one of the spouses no longer wants to continue the marriage.
  • The partners no longer live in a so-called “domestic community”.

The concept of domestic community does not necessarily refer to living together under one roof. Although one of the two partners often moves out of the shared apartment after a separation, this is not absolutely necessary. Sometimes it is not possible, for example for financial reasons, for one of the ex-spouses to move into a new apartment immediately.

In order to be recognized as “living separately” in this case as well, there must be a clear physical separation within the shared apartment, for example through separate bedrooms. In addition, each spouse is responsible for themselves and, for example, may no longer take on household chores such as cooking or washing clothes for the other. The strict financial separation through your own accounts is also considered an indicator of living apart.

Excerpt can be sued for

In rare cases of hardship, the spouse can be legally forced to move out, for example if one of the spouses does not want a divorce and therefore threatens the other.

A separation is therefore not always spatially recognizable, especially if both spouses initially remain in the shared apartment. If a separation is intended or initiated, it makes sense to document this in writing, for example by registered mail. Thus, the exact determination of the time of separation – which is crucial for determining the claim for separation maintenance – does not offer any scope for disputes.
You can find more detailed information on this in our article “Separation year: All information at a glance” .

Separation alimony after reconciliation?

An attempt at reconciliation can be made without further ado during the period of separation. In this case, the separation maintenance will initially continue to be paid. Only if the attempt at reconciliation lasts longer than three months will the year of separation be interrupted and the entitlement to alimony will be lost. Should there be a separation again afterwards, the separation maintenance will be recalculated.

How is separation maintenance calculated?

Marital living conditions based on the respective monthly income are used as a basis for calculating separation maintenance. To do this, the so-called “maintenance-relevant income” must first be determined. In addition to pure income, various deductions and surcharges are also taken into account, for example:

  • child support
  • Christmas bonus
  • ride costs
  • Tax refunds or back payments
  • Health insurance costs for the self-employed
  • Housing advantages of a condominium

Exactly which costs are used as a basis for determining the maintenance-related income always depends on the individual circumstances and can therefore not be answered in general here.

Another important point when determining separation maintenance is whether both spouses have an income or only one. Ultimately, there are two possibilities in theory:

  • If both spouses earn money, the determined maintenance-relevant income is added and divided by two. The partner with the lower income is entitled to payment of the difference between the amount determined in this way and the actual income from the partner with the higher income.
  • If only one of the partners has an income, half of this maintenance-relevant income results in the maintenance claim of the other partner.

In practice, another point is taken into account when determining separation maintenance.

Deductible for separation maintenance

Depending on the individual situation, the higher-earning partner may have a high maintenance obligation. In order to still be able to live well, he is allowed a so-called deductible of currently 1,100 euros (as of May 2013), the annual amount of which is based on the information in the Düsseldorf table . This amount must still be available to the spouse who is obliged to pay maintenance after deduction of the separation maintenance to cover his or her living expenses. If this is not the case, the alimony will be reduced accordingly.

Example:

The husband earns 1500 euros, the wife 400 euros. Together this results in an income of 1900 euros. If you divide this by two, each spouse is entitled to 950 euros. The wife would therefore be entitled to 550 euros in separation maintenance. If the husband were to pay this, he would only have 950 euros left. However, since the statutory deductible is higher at 1100 euros, he only has to pay his wife 400 euros in separation maintenance.

How long is there alimony?

If there is an entitlement to separation maintenance, this is guaranteed for one year from the time of separation. During this time, the receiving spouse is not generally obliged to look for a job or to increase part-time employment. If the separation lasts longer than a year without the divorce being completed, the conditions for separation maintenance are gradually adapted to those of post-marital spousal maintenance.

Basically, it can be said: The longer the separation lasts until the divorce, the stricter the provisions regarding the separation maintenance. If the separation lasts longer than a year, it can happen that a fictitious income is added to the calculation of the income relevant for maintenance. This happens, for example, when the receiving partner works less than he actually could. A new partnership can also lead to a fictitious income being taken into account, for example due to joint household management.

Can the right to alimony forfeit prematurely?

The right to maintenance can be forfeited before the law if the entitled partner commits a criminal offence, for example by threatening or injuring the ex-spouse or their close relatives. The so-called “breaking out of an intact marriage” – i.e. cheating – can also forfeit a claim to separation maintenance. However, this infidelity must have demonstrably led to the failure of the marriage. If it has already failed before, this reason usually does not count.

It is not possible to waive separation maintenance

Incidentally, a legally effective waiver of separation maintenance is – against the background of marital solidarity – not possible. Although an amount other than that prescribed by law can be agreed, there is a risk that this agreement will not stand up in court. It is therefore best for spouses to reach an effective deviating agreement on separation maintenance only with the advice of a lawyer.

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