-
» Excellent «
Divorces are generally speaking, a significant schism in the lives of former spouses. A terminating separation is desired, but some consequences of divorce, such as post-marital maintenance (alimony), can still reach far into the future, beyond the separation. Post-marital maintenance often forms a point of contention in divorce proceedings, especially because some factors do not follow an exact formula. If you have any questions regarding post-marital maintenance, please contact one of our family law attorneys in St. Gallen, Zurich or Frauenfeld.
In accordance with current case law, a clean break is sought in the event of a divorce. This means that in principle both spouses, after the marriage, should manage their economic situation themselves. Only if this is impossible or unreasonable, can a contribution from the other spouse be required. The Federal Court grants the payment of alimony on the basis of three factors (BGE 134 III 145). Firstly, the due maintenance is calculated to determine what is needed to maintain the material or premarital standard of living. Secondly, the question of self-support is examined; to what extent is the spouse able to provide for themselves? The extent of self-support depends on the distribution of roles and the duration of the marriage. For the assignment of the distribution of roles, it is particularly important to consider whether one spouse sacrificed their professional career in order to provide for the family or children. For the consideration of duration, a marriage is considered short if it lasts less than five years. In this case, the premarital position is considered resumable. A marriage is considered formative for the spouses, if it lasts longer than ten years. Formative also means that the spouse could reasonably have expected the marriage to continue and planned their life accordingly. If the duration of the marriage is between five and ten years, the pre-marital relationship is still taken into account. The third factor is the appropriate contribution, as far as it is possible for the spouse, to cover the discrepancy between the first two points.
If the conditions for alimony are met, the spouse who is economically weaker is entitled to the full amount of the due maintenance, including a pension. The spouse’s ability to provide for their own needs is deducted from this amount. The property situation at the time of the divorce serves as the starting point for the calculation. The amount of alimony and the duration of the pension are to be determined on a case-by-case basis and depend primarily on the spouses’ ability to pay. If the economic circumstances are not sufficient to meet the minimum subsistence level of both parties individually, the minimum subsistence level of the obligor must not be violated under debt collection law (BGE 123 III 1).
If it is possible to finance both households, after covering both minimum subsistences, the surplus is theoretically divided in half. If there is a surplus, however, the entitled person should not be in a better position than before the divorce. For this purpose, the alimony amount is informed by the household budget. Since these circumstances can change over time, the Swiss divorce law in Art. 128 & 129 CPC provides for two possibilities to adjust the maintenance payment subsequently.
According to Art. 125 para. 3 of the Civil Procedure Code, maintenance may be excluded or reduced in exceptional cases due to obvious inequity. Three possibilities are listed in a non-exhaustive manner. Possibilities include a gross violation of the duty to contribute to the maintenance of the family by the entitled person, an entitled person’s purposeful dependency on the obligor or if the entitled person commits a serious crime against the obligated spouse or a closely associated person thereof.
The obligation to pay maintenance generally concludes at the end of a set period or if the entitled person waives it without formality. If a spouse dies, the maintenance claim also ends by law. However, any contributions which are due are passed on to the heirs, both actively and passively. Another reason for termination is the remarriage or entry into a registered partnership by the entitled spouse. A remarriage of the person paying alimony (the obligor) is irrelevant, but may result in a modification of the alimony payments.
A divorce does not only introduce complications in terms of the post-marital maintenance. If you have any questions regarding your divorce or due maintenance, contact our lawyers for family law in Zurich, St.Gallen or Frauenfeld.