After divorce, two forms of maintenance may arise: child maintenance, comprising cash and caregiving maintenance, and post-divorce maintenance for the financially weaker spouse. Child maintenance relates to the allocation of childcare, particularly where one spouse provides a greater share. Any spousal maintenance is assessed separately. Its award generally depends on whether the marriage had a lasting impact on economic circumstances, in which case the marital standard of living is relevant. Otherwise, the spouse is placed in the position they would have occupied without the marriage, which often entails no post-divorce maintenance.
Until 2020, a marriage lasting more than 10 years was considered to have a lasting impact on economic circumstances. Following changes in case law, the focus is on a traditional homemaker marriage: one spouse gave up economic independence or employment to manage the household or care for children. The Federal Supreme Court has clarified that the birth of a child alone does not establish such an impact. A spouse must have given up or substantially reduced employment to care for the child. Where both continue working after the birth, the marriage is not regarded as having this lasting impact and generally no post-divorce maintenance is awarded on that basis.
A brief example from a Federal Supreme Court decision:
In the case, a woman married at 41 and had a daughter at 43. She had already built a successful consultancy and continued working after the birth, but became increasingly economically dependent on her husband's assignments. When the couple separated one year after the birth, he withdrew all assignments from her firm. Rebuilding the business as a single mother of a one-year-old child was extremely difficult. The first-instance court therefore awarded substantial post-divorce maintenance. The husband appealed as far as the Federal Supreme Court.
The Federal Supreme Court held that the marriage had not had such a lasting impact. The wife had never given up her professional activity and could reasonably be expected to find new clients or another job. The assessment would also have been unchanged had she stopped working after the daughter's birth: separation occurred only a year later, and one year was too short to establish a traditional homemaker marriage whose continuation she could reasonably rely on.
In summary, having children does not in itself establish that a marriage had a lasting impact on economic circumstances. Even after marriages with children, no or substantially lower post-divorce maintenance may be awarded. We can advise you personally on your questions.