Each spouse is normally responsible for their own support after a divorce. However, if one of the spouses needs money for her or his maintenance for a transitional period, they might be entitled to an allowance from the other spouse. A maintenance allowance may be necessary so that, among other things, the spouse in need should have an opportunity to acquire gainful employment or a better income through training or retraining.
The question of how long such a readjustment period should last must be assessed in view of the circumstances in the individual case. If the spouse in need has difficulty in maintaining themself following the dissolution of a long-lasting marriage, they may obtain a maintenance allowance for a longer period than only a transitional period.
If the spouses cannot agree on the matter of maintenance, they should in the fi rst instance contact a law offi ce for advice and assistance (see Section 8.4). Ultimately, a court must determine the dispute.
According to earlier provisions a divorced spouse who was entitled to maintenance would automatically lose the maintenance allowance on remarrying. This rule no longer applies. However, the maintenance allowance may be reassessed due to the change in circumstances resulting from a new marriage or cohabiting with a new partner.
Other changed circumstances may also be referred to for a spouse’s maintenance allowance to be reduced through adjustment. It is not every change that is suffi cient as grounds for adjustment; the change must be manifest, for example, where the ability to work of the spouse obliged to pay maintenance has clearly deteriorated.
Once a maintenance allowance has been decided, extraordinary reasons are required for a court to increase the allowance as a result of changed circumstances.
An agreement on maintenance for a spouse may also be adjusted when the agreement is not reasonable bearing in mind the circumstances when it came into being and other conditions.
The parties are always free to jointly agree on a change to maintenance allowance. If the parties are in agreement, they can write a new agreement. This even applies when the previous maintenance allowance was decided through a court ruling.
Index-linking of maintenance allowances
The maintenance allowance to a spouse is index-linked, that is to say it follows the price trend. The index follows changes in the price base amount under the National Insurance Code. However, this does not apply if another index clause has been included in the judgment or the agreement determining the allowance.
Maintenance allowance claims to which a spouse is entitled will become statute-barred, that is to say may no longer be claimed, three years after the date on which the payments should have been made.
A spouse who is liable to pay maintenance allowance to the other spouse may claim a deduction in her or his tax assessment for the entire allowance that has been paid. The other spouse is taxed for the allowance that has been received.
Source: Ministry of Justice
Gilla Laddar in …