In the event of a fault-based divorce, the spouse who is predominantly at fault must pay reasonable maintenance if the expected income of the other is insufficient. However, the beneficiary is obliged to pursue a reasonable gainful activity. When gainful employment is reasonable always depends on the individual circumstances. The following therefore applies: everyone must try to provide for his or her own reasonable maintenance. If the person obliged to pay maintenance is endangered by the maintenance payment, the claim is reduced to an equitable claim.
If both parties are equally at fault, there is no real claim to maintenance, but a certain amount can also be awarded here for reasons of equity if the person concerned is not able to support him/herself. In principle, however, there is no claim to maintenance in these cases.
Lastly, there are two exceptional cases in which maintenance can be sought regardless of fault, and thus also applies in those cases in which the divorce is not due to fault:
- Childcare Maintenance:
This concerns cases in which the divorced spouse cannot reasonably be expected to support himself or herself due to the care and upbringing of the joint child. This unreasonableness is presumed until the child reaches the age of five, but can be refuted by the obligor.
- Alimony due to marital impairment of earning capacity:
The spouse who has taken care of the household and the upbringing of the children during the marriage is entitled to maintenance as long as he/she cannot be expected to maintain him/herself.
