A judgment for eternity? Modification of divorce decree (post-marital maintenance)

For those affected, an action for modification usually means a repeated confrontation with the conflicts of the past. First you have become accustomed to living your life without legal disputes, now you are back in court and have to deal with the same old problems.

How can a divorce decree be amended retrospectively?

A legally binding divorce decree can only be changed by means of an action for modification. As a legal consequence, post-marital maintenance can be reduced, indexed or increased.

No legal action or court approval is required if the spouses agree on the change and agree this in writing.  

When can the maintenance stipulated in the divorce decree be subsequently amended?

A modification of the post-marital maintenance contribution requires that there is a subsequent reason for the modification and that this is unforeseeable, significant and permanent. The court examines the existence of the requirements on a case-by-case basis. It is based on the standard of living taken into account in the divorce decree.

When is a subsequent change given?

A subsequent change in the economic circumstances must be given:

• by improving the situation of the maintenance creditor;
• by improving the situation of the maintenance debtor
• due to deterioration in the situation of the maintenance debtor;
• NOT: by worsening the situation of the maintenance creditor.

Unpredictability

The purpose of unforeseeability is that only circumstances that did not yet exist and/or could not be taken into account at the time of the divorce decree can be changed.  

Materiality

Significance is determined by comparing the relevant financial circumstances and the amount of maintenance before and after the subsequent change. In principle, if the financial circumstances are tight, even a smaller percentage change qualifies as significant, whereas a larger change is required if the financial circumstances are good. An action for modification is not likely to be successful in the case of smaller changes.

Duration

The change must be permanent. If it is likely to last indefinitely (e.g. remarriage, new child, unemployment for several months, etc.), a modification by adjusting or canceling the maintenance contribution may be considered. If the change is only temporary, a (partial) suspension or temporary adjustment may be considered. The foreseeable development is taken into account for the delimitation.

When can maintenance be reduced?

If the financial circumstances of the maintenance debtor deteriorate, post-marital maintenance can be reduced. This may be the case if the debtor's income decreases despite reasonable efforts or if his or her needs inevitably increase (e.g. due to the birth of another child).

If the financial circumstances of the person entitled to maintenance improve, whereby this only becomes relevant if the post-marital maintenance in the divorce decree was able to cover the maintenance due.

When can maintenance be increased?

An increase in post-marital maintenance is only permissible in exceptional cases. The maintenance creditor must apply for the increase within 5 years of the divorce. An increase only applies if the divorce decree states that 1) the maintenance creditor is unable to cover the maintenance due and 2) the debtor's financial circumstances have subsequently improved.