Spousal Maintenance (Unterhalt) After Divorce in Germany and Austria: What the Law Says in 2026

What Is Spousal Maintenance After Divorce?

Spousal maintenance (nachehelicher Unterhalt) is financial support paid by one ex-spouse to the other after a divorce. It is not automatic or guaranteed; it depends on need, ability to pay, and the specific laws of Germany or Austria. This article explains the legal principles, practical steps, and key differences between the two countries as of 2026.

Legal Framework: Germany vs. Austria

Germany: The Civil Code (BGB)

In Germany, spousal maintenance is governed by §§ 1569–1586b BGB (Bürgerliches Gesetzbuch). The guiding principle is nacheheliche Solidarität (post-marital solidarity). A spouse can claim maintenance only if they cannot support themselves after divorce. The law lists several grounds for a claim:

• Betreuungsunterhalt (§ 1570 BGB): Care for a shared child. Duration and amount depend on the child’s age and needs.
• Unterhalt wegen Alter (§ 1571 BGB): If the spouse cannot find employment due to age (usually over 50–60).
• Unterhalt wegen Krankheit oder Gebrechen (§ 1572 BGB): Illness or disability preventing self-support.
• Unterhalt wegen Erwerbslosigkeit (§ 1573 BGB): After reasonable efforts, the spouse remains unemployed.
• Aufstockungsunterhalt (§ 1573 Abs. 2 BGB): If the spouse’s income is insufficient to cover living expenses (e.g., part-time work).
• Unterhalt wegen Ausbildung (§ 1575 BGB): To complete or retrain for a career.

Duration is not fixed but limited by the principle of Eigenverantwortung (self-responsibility). After divorce, each spouse is expected to become self-sufficient. Maintenance may be limited in time or amount, especially after a long marriage.

Austria: The Marriage Act (EheG) and ABGB

Austrian law is more discretionary. The main provisions are in §§ 66–94 Ehegesetz (EheG) and the Allgemeines bürgerliches Gesetzbuch (ABGB), particularly § 94 ABGB for ongoing support during separation. After divorce, the court considers the Billigkeit (fairness) standard. Key differences:

• Austrian law does not have the same detailed list of grounds as Germany. Instead, the court looks at all circumstances: length of marriage, care for children, age, health, and economic situation.
• Austria focuses on Verschulden (fault) in some cases. If one spouse caused the divorce through misconduct (e.g., adultery, abuse), that may reduce or eliminate their maintenance claim. In Germany, fault is largely irrelevant since 1977.
• Austrian maintenance is often limited in time (e.g., 3–5 years), especially if the marriage was short and no children are involved.

Step-by-Step Practical Guidance

Step 1: Determine Eligibility

You need to show you cannot fully support yourself after divorce. Collect evidence: income statements, job search records, medical certificates, child care responsibilities. In Germany, be ready to prove you have made reasonable efforts to find work.

Step 2: Calculate the Amount

There is no fixed formula. Both countries use the Differenzmethode (difference method): subtract your income from your needs. Needs include rent, health insurance, and living costs. The paying spouse’s ability to pay is capped by their own needs (the Selbstbehalt or self-retention amount).

In Germany, the Düsseldorfer Tabelle (Düsseldorf Table) is a guideline for child support, but for spousal maintenance, courts use a similar percentage (usually 45% of net income after deductions). In Austria, courts look at the Lebensstandard (standard of living during marriage) and aim to maintain it proportionally.

Step 3: Negotiate or Go to Court

Try mediation or a notarized agreement first. If you cannot agree, file a petition at the Familiengericht (Germany) or Bezirksgericht (Austria). Both countries require you to submit financial disclosures (Vermögensauskunft).

Step 4: Understand Duration and Modification

Maintenance can be modified if circumstances change (e.g., job loss, remarriage, new child). In Germany, you can request a Abänderungsklage (modification lawsuit). In Austria, file a Änderungsklage at the same court.

Key Differences Between Germany and Austria

• Fault: Austria considers fault; Germany does not (except in rare cases of gross misconduct).
• Duration: Germany tends to grant longer maintenance, especially for child care. Austria often imposes time limits.
• Calculation: Germany uses the Düsseldorfer Tabelle as a guideline; Austria relies more on judicial discretion and the standard of living.
• Self-support expectation: Both expect self-sufficiency, but Germany is stricter about demanding job-seeking efforts.
• Tax treatment: In Germany, the paying spouse can deduct maintenance as Realsplitting (§ 10 Abs. 1 Nr. 1 EStG); the recipient must pay tax on it. Austria has similar rules under § 26 EStG.

FAQ: Common Questions About Spousal Maintenance

1. Do I automatically get maintenance after divorce?

No. You must prove you cannot support yourself. If you can work, you are expected to do so.

2. How long does maintenance last?

In Germany, there is no fixed period. It depends on the grounds (e.g., child care can last years). In Austria, courts often limit it to 3–5 years for short marriages.

3. Can I remarry and still receive maintenance?

In both countries, remarriage usually ends the claim. However, if you remarry and divorce again, a new claim may arise from the new marriage.

4. Does cohabitation affect maintenance?

Yes. Moving in with a new partner can reduce or stop maintenance, especially if you share expenses. In Germany, § 1579 BGB allows reduction. In Austria, the court considers it under fairness.

5. What if my ex-spouse stops paying?

You can enforce the court order through wage garnishment (Lohnpfändung) or seizure of assets. Both countries have enforcement mechanisms via the Gerichtsvollzieher (bailiff).

6. Can we make our own agreement?

Yes. A notarized agreement (notarielle Vereinbarung) is binding. In Germany, it can limit or waive maintenance, but courts may review it for fairness. In Austria, agreements are also possible but must not violate good morals.

Real Official Resources

• Germany: Bürgerliches Gesetzbuch (BGB) – §§ 1569–1586b. Read at gesetze-im-internet.de.
• Germany: Düsseldorfer Tabelle (2026 version) available at olg-duesseldorf.nrw.de.
• Austria: Allgemeines bürgerliches Gesetzbuch (ABGB) – § 94. See ris.bka.gv.at.
• Austria: Ehegesetz (EheG) – §§ 66–94. Same source.
• EU: Regulation (EC) No 4/2009 on maintenance obligations applies to cross-border cases. Info at e-justice.europa.eu.

Always consult a licensed family law attorney (Fachanwalt für Familienrecht in Germany, Rechtsanwalt mit Schwerpunkt Familienrecht in Austria) for personalized advice.

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