Myth or truth in divorce: the amount of alimony never changes.

Nothing is less true: the maintenance allowance can be changed (with the exception of one specific situation of personal maintenance before 01.09.2007, which is explained below).

When and how can a maintenance allowance be changed now? For clarity, we distinguish between the personal maintenance contribution for ex-spouses and the maintenance contribution for children.

Personal maintenance contribution between ex-spouses

A maintenance allowance between ex-spouses can be agreed upon or imposed after divorce.

The myth that the amount of maintenance cannot be changed probably originates from this personal maintenance contribution between ex-spouses.

When spouses agreed on an amount of maintenance before the new divorce law of September 1, 2007, came into effect, this agreed-upon amount could not be changed by the court afterward, even if there were changed circumstances. Only the parties themselves could agree on a new, adjusted amount through mutual agreement.

If the amount was imposed by the court, the court could adjust the amount later if changed circumstances were present. This happened rather exceptionally, for example, in cases of job loss due to illness.

Although the law was changed in 2007, the myth of “unchangeability” still seems to exist. However, the principle of changeability of personal maintenance allowance applies to all types of divorces since the new divorce law of 2007.

To summarize:

Changeability before the law of September 1, 2007

In an agreement

If an amount of maintenance between ex-spouses was agreed upon before the new divorce law came into effect, this fixed amount in the agreement could not be changed.

The agreement between the parties was binding.

Even if there were changed circumstances, the court could not change the amount in any way.

There were only two possibilities for changing this amount:

• Changeability provided in the agreement itself;
• Change through mutual agreement between the parties.

If no possibility for change was provided in the agreement, and the maintenance-paying ex-spouse lost their job due to, for example, illness or bankruptcy, they had no choice unless the maintenance-receiving ex-spouse agreed to a reduction or elimination of the maintenance amount.

Imposed by the court:

On the other hand, it is also possible that the court imposed an amount of maintenance before September 1, 2007, in a judgment because the parties could not reach an agreement.

In this case, it is and was possible to submit this imposed amount to the court for modification later.

The court can then adjust the amount in case of changed circumstances to reflect the current situation.

The different hypotheses are as follows:

• Either the court believes that there are no changed circumstances: the amount is not changed by the court but can still be changed through mutual agreement between the parties;
• Or the court believes that there are changed circumstances: the amount can be adjusted.

Conclusion:

Only in the situation where:

• parties agreed on an amount of maintenance in an agreement
• before the law of September 1, 2007
• no possibility for later change was provided
• no new agreement can be reached on changeability

it cannot be changed to this day.

In such a situation, it is advisable to try to negotiate so that a new amount is agreed upon based on fairness or the maintenance contribution is abolished. In this case, it is advisable to consult a lawyer. We can assist you in these negotiations.

Changeability after the law of September 1, 2007

After September 1, 2007, fortunately, the reasoning is reversed compared to before.

The principle now is the changeability of the amount of maintenance, whether agreed upon between parties or imposed by a court.

In any case, a new amount can be agreed upon through mutual agreement between parties.

If parties do not reach an agreement, they can turn to the court to modify or abolish the amount.

The court can, therefore, increase, decrease, or abolish the maintenance allowance.

Please note, this can only happen if, due to new circumstances independent of the will of the parties, the amount is no longer suitable.

Maintenance allowance is, therefore, fundamentally changeable, unless parties agree otherwise.

For completeness, it can also be mentioned that a personal maintenance contribution can be agreed upon or imposed by a court between ex-legal cohabitants if you can convince the court based on the obligation of assistance between legal cohabitants. Between ex-factual cohabitants, this is currently only possible if they agree on this themselves.

Maintenance contribution for the children:

A maintenance contribution for children can be owed by parents who are separated or not married and have common children (for both legal and factual cohabitants).

For the maintenance contribution for children, there are again the following possibilities:

• Parties agree on an amount of maintenance, and an agreement judgment is made;
• Parties do not agree, and the court decides on the amount of maintenance.

There are often situations where a parent wants to change the amount of maintenance (increase, decrease, or abolish it).

For example, in the following situations:

• There is a significant increase or decrease in the costs of the children: children are much older now, and this entails a significant cost of raising the child;
• There is a significant increase or decrease in the financial means of the maintenance-receiving parent, independent of their will;
• There is a significant increase or decrease in the financial means of the maintenance-paying parent, independent of their will;
• There is a change in the residence arrangement of the children, for example, instead of a week/week arrangement, the children now only stay with one parent every other weekend, so the latter incurs fewer costs.

Can a maintenance contribution for children be changed in the above situations? And what can parties do when they want to change the amount of maintenance?

A new mutual agreement

Parties can always, through mutual agreement, make a change to the made or imposed arrangement. It is advisable that this new agreement is also documented in writing and potentially presented to the court for approval so that it can be homologated and is, in a way, cast into a judgment. This way, there is immediately a new enforceable title.

A revision clause in the original agreement

It is also possible (and even recommended) for parents to include a revision clause in their initial agreement, confirming the fundamental changeability of the agreement and agreeing in advance on which changing factors may lead to the adjustment of the maintenance contribution.

When a changing factor occurs, parties do not have to start a procedure in court or negotiate again. The increase occurs immediately simply because it was agreed upon between parties.

The possibility of change is then, for example, linked to certain moments or specific conditions.

Often, hinge ages of the children (for example, at 6, 12, and 18 years old) or hinge moments in their education are included as changing factors (transition to secondary education or starting studies at a higher education institution).

By providing clear revision clauses, many disputes can be avoided. Therefore, it is advisable to mention the specific circumstances, indicate the precise times, and possibly include a calculation method.

Unilateral changes

When parents do not come to a new agreement and have not included a revision clause in their original agreement, and the judgment says nothing about it, but one of the parents wants to change the amount, the legislation now provides a way out. This is possible for both married and unmarried parents.

In this situation, the court must be approached to implement the planned change.

The financial arrangement with regard to the children can then be revised if three conditions are met:

• There are new circumstances;
• That occur outside the will of the parties;
• That significantly change the situation of the parents or the children.

Under new circumstances, independent of the will of the parties, examples may include: involuntary unemployment, the burning down of the home, a major theft, a significant change in income due to prolonged illness, and so on.

For the significant impact required by the law, both a change in the situation of the children and a change in the situation of the parents themselves can be considered. This can include, for example, a change in the custody arrangement.

Conclusion

“The amount of alimony never changes” is therefore a myth, but with necessary nuance.

The amount can always be adjusted through mutual agreement, both regarding child support and between ex-spouses.

When mutual agreement is not possible, one can turn to the court.

Personal maintenance allowance after divorce is fundamentally changeable after September 1, 2007, unless otherwise specified. Personal maintenance allowance set in an agreement before September 1, 2007, can only be changed if there is a provision for changeability or if parties later agree that it can be changed. If no new agreement is reached or there is no provision for changeability, one pays the same amount of maintenance forever.

Child support can always be modified by the court if one can demonstrate that new circumstances, independent of the will of the parties, have arisen. However, it is still best to agree in advance on the circumstances that will lead to changeability, avoiding discussions about whether they are “new” and “unforeseeable” in the future.

In practice, there are often uncertainties or questions about this. Do you wish to change the amount of alimony you pay or receive? The family law team will investigate whether this is possible and in what way.