Can spousal support be attached?

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Some creditors get annoyed when they discover that the debtor is penniless. He is even more annoyed when his spouse is a high earner. Then the question arises whether the destitute debtor is entitled to spousal maintenance. Such could be attachable.

Spouses are also entitled to pocket money.
Spouses are also entitled to pocket money.

In marriage, the spouses are mutually obliged to support each other (§ 1360 BGB). They have to make a fair living. If a spouse is not gainfully employed or has no financial resources, he is entitled to spousal support.

Spousal support entitles you to pocket money

The spousal support during an existing marriage is concretized as pocket money. It is often not clear how this is structured in terms of content. In principle, it can be attached.

  • The pocket money entitlement is a monetary payment entitlement. It should make the spouse independent and enable him to lead an independent life. The prerequisite is that the spouse is not gainfully employed.
  • If, on the other hand, the spouse has their own income, the pocket money entitlement is reduced towards zero. Then his own income can only be seized within the scope of the seizure exemption limits.

This is how the pocket money entitlement is calculated

  1. The amount of the pocket money entitlement depends on the financial circumstances of the spouse. Then the first step is based on a fictitious maintenance claim of one spouse against the other spouse. The spouse's maintenance is fictitious because it is not titled during the marriage. It is regularly quantified as 3/7 of the net income of the obligated spouse.
    2. Garnishment exemption limit for pension - this is to be observed

    The pensioner also has to live on something. If you are facing a seizure, ...

  2. In a second step, the case law then usually sets a quota of 5 to 7 percent of the net income as the amount of pocket money entitlement.
  3. The fictitious maintenance claim and pocket money claim together must exceed the seizure exemption limits. The personal seizure exemption limit is € 1,045.04 (as of July 1, 2013).

This is how the attachable amount is determined

If the amount of the pocket money is determined, 7/10 of it can be seized. It is not important that the employed spouse expressly approves or recognizes the claim. Rather, the claim exists by virtue of the law.

  • Example: Net income of the employed spouse: € 3,500 - fictitious maintenance claim: 3/7 = € 1,500, right to pocket money: 5% of € 3,500 = € 175. As maintenance and pocket money totaling € 1,675 are above the personal seizure exemption limit, 7/10 of the pocket money of € 175 = € 122.50 can be seized. It must be taken into account that the seizure exemption limit is only exceeded because a fictitious spouse maintenance is taken into account.
  • The prerequisite, however, is that the attachment of the pocket money claim is also fair. For this purpose, creditor and debtor interests are weighed against each other. The nature and circumstances of the emergence of the creditor's claim are to be taken into account. If the creditor finds himself in an emergency, his interest tends to outweigh him. The same applies if the economic situation or the lifestyle of the spouse and the debtor are luxurious. The origin of the claim and the responsibility of the spouse as debtor must also be taken into account.

Maintenance claims of a spouse during the separation period (separation maintenance) or after divorce (Divorce maintenance) are attachable according to the regulations applicable to labor income. Thereafter, the dependent spouse has at least the personal garnishment allowance (€ 1,045.04 as of July 1, 2013).

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