Separation maintenance reduced due to misconduct – Higher Regional Court of Munich – 12 UF 265/23 e
Before a marriage is officially dissolved, couples in Germany are generally required to undergo a one-year separation period. During this time, one spouse may be entitled to separation maintenance. However, this entitlement can be partially lost if the entitled spouse has demonstrated particularly severe misconduct during the marriage. This is illustrated by a decision of the Higher Regional Court (OLG) of Munich dated August 22, 2024 (Case no.: 12 UF 265/23 e).
Similar to post-marital maintenance, the amount of separation maintenance is primarily based on the income available to cover the couple’s cost of living during the marriage. Often, separation maintenance corresponds to half of the couple’s combined monthly income. However, the claim may be reduced if the spouse entitled to maintenance has displayed egregious misconduct, according to the commercial law firm MTR Legal Rechtsanwälte, which also advises on family law matters.
Marriage Breakdown
This was demonstrated in the case before the OLG Munich. The couple married in 1988. After the husband completed his studies in 1992 and began working, the wife ended her employment as a secretary and has not worked since. The couple had no children. The husband advanced in his career, joining the executive board of his company and becoming CEO in 2018.
The marriage was less successful. After several temporary separations, the couple reconciled, until their final split in April 2016. The reason for the separation was a physical altercation in which the wife injured her husband in the neck area with scissors during a verbal argument, requiring medical treatment. A year earlier, the wife had been diagnosed with breast cancer, which required surgery. As a result, she suffered from depression.
Dispute Over Separation Maintenance
The divorce was finalized in February 2023. Separation maintenance became a major point of contention. The OLG Munich ruled that the wife was entitled to separation maintenance from the time of separation until the finalization of the divorce. The amount of maintenance is essentially determined by the income available during the marriage to meet living expenses and is calculated on a 50/50 basis. This is based on the assumption that the couple’s total income was used jointly for their cost of living. However, in cases of higher income, it is also presumed that not all of it was used for living expenses, but that part was saved or invested. In such cases, the spouse claiming maintenance must demonstrate how much of the family income was actually used for consumption.
Use of Family Income
Full consumption of the family income can still be assumed if it does not exceed twice the highest income level in the Düsseldorf Table. For higher incomes, the maintenance claimant must provide proof that the entire income was used for living expenses in order to claim maintenance based on the equal sharing principle, according to the court.
Based on the husband’s statements during the divorce proceedings, the court assumed that the couple’s entire income was used for living expenses, with no asset accumulation. Thus, the wife was generally entitled to receive half of the couple’s monthly income in separation maintenance, as stated by the OLG Munich.
Restoring Ability to Work
Due to her depression, the wife was deemed unfit for employment. However, the OLG Munich stated that she had not made all reasonable efforts to restore her ability to work. In particular, she had not sought inpatient treatment for her depression. According to expert testimony, recovery of her ability to work could have been expected within six months of beginning such treatment. Therefore, the court held that she could have returned to work by the end of 2021 at the latest, and from that point on, a notional income must be imputed to her.
Reduction of Separation Maintenance
Additionally, the wife had physically assaulted her husband multiple times, publicly discredited him at his workplace and in other settings, filed an unfounded criminal complaint against him, harassed, insulted, and threatened him. Considering all circumstances, the OLG Munich determined that her entitlement to separation maintenance must be reduced by 60 to 70 percent due to the extent of her abusive behavior, insults, and stalking.
MTR Legal Rechtsanwälte advises private clients on separation and divorce as well as other areas of family law.
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