Starting Point: Hypothetical Income Assessment in Maintenance Law
In the field of maintenance law, the question often arises as to which standards should be applied when determining a hypothetical income of a maintenance debtor. This is particularly relevant when the court considers that the maintenance debtor does not sufficiently fulfill their obligation to work, and therefore, besides the actual income earned, a hypothetical, i.e., fictional, income should be used as the basis for calculating maintenance payments. The exact amount of this income to be imputed is of central importance for all parties involved.
No Restriction to Simplest Jobs and Statutory Minimum Wage
Principle of the Obligation to Work
Persons obliged to pay maintenance are fundamentally required to make the best possible use of their working capacity in order to meet their maintenance obligations. If the maintenance debtor does not comply with this obligation, the competent court may base calculations on a hypothetical income that corresponds to what the debtor could realistically earn by reasonably utilizing their individual skills and qualifications on the labor market.
Limitation by Individual Qualifications and Former Career Path
A key statement by the Higher Regional Court of Brandenburg (Case No.: 10 UF 139/17, decision of October 31, 2019, source: www.urteile.news) is that the assessment of a hypothetical income cannot generally be linked to the lowest possible activity, i.e., employment at minimum wage. Rather, the decisive factors are the actual professional qualifications, the previous professional career, and the employment history of the individual concerned. The reference to the statutory minimum wage as a floor is permissible only if it is objectively unreasonable to expect the maintenance debtor to perform work with higher income.
Reasonableness and Labor Market Situation
The court reviews on a case-by-case basis which specific employment is realistically achievable and reasonable for the maintenance debtor. This is measured by factors such as age, education, professional experience, previous earnings, and the regional labor market situation. Resorting to the simplest tasks remunerated only at minimum wage is therefore only possible if, due to their individual situation, the maintenance debtor cannot find appropriate employment at the level of their qualifications or is no longer able to perform such work.
Practical Implications for Maintenance Calculation
Judicial Review of Employment Efforts
In judicial practice, it is often observed that the burden of proof for reasonable employment efforts lies with the maintenance debtor. Specifically, this means: the maintenance debtor must demonstrate that, measured against their qualifications, they have seriously and adequately sought appropriate employment. If after the evidence is presented the competent court concludes that the efforts were insufficient, it may assign a hypothetical income based on work corresponding to the debtor’s profile.
Differentiation According to Industry-Specific and Regional Criteria
The determination of hypothetical income is not generalized but based on valid and comprehensible criteria. These include in particular the wage level of comparable employees within the relevant industry and the usual remuneration in the respective region. The goal of the procedure is to determine the hypothetically achievable income as realistically and case-specifically as possible, thereby taking into account the interests of both parties — the maintenance debtor and the maintenance recipient.
Summary and Outlook
The decision of the Higher Regional Court of Brandenburg makes it clear that the determination of a hypothetical income in maintenance law requires individual case assessment and cannot be schematically oriented to the statutory minimum wage. Rather, all individual circumstances and labor market-related factors must be considered. This entails numerous uncertainties for those involved in maintenance cases. Due to the legal situation being shaped by numerous rulings and case-specific constellations, complex delimitation questions may arise in individual cases.
For questions regarding maintenance calculation and the consideration of hypothetical income, the attorneys at MTR Legal are gladly available upon appropriate contact.
