Maintenance Claims during Incarceration

Mar 19, 2026 Benn-Ibler Rechtsanwälte

The Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH) has determined that the obligation to provide maintenance is suspended while an individual serves an extended prison sentence.

Request for maintenance during incarceration

In the initial case, the plaintiff rhad equested maintenance from the defendant, her former spouse. The defendant had attempted to murder the plaintiff and was incarcerated as a result of his own actions. Consequently, it was argued that maintenance obligations should be determined according to the defendant’s most recent income prior to his imprisonment.

The lower courts determined that the plaintiff’s maintenance claim was to be suspended effective from the date of the defendant’s incarceration, subsequently dismissing the claim.

OGH declined to impose a payment obligation

The OGH, however, denied the plaintiff's appeal. In evaluating the financial ability of an individual responsible for maintenance payments, the calculation may be based on projected income that is reasonably expected to be earned, rather than solely on income already received.

Nonetheless, in accordance with OGH case law, this evaluation must avoid hypothetical constructs and instead be grounded in the actual earning capacity of the maintenance debtor, considering their skills and available opportunities.

The OGH has addressed child maintenance in its 2015 decision (8Ob78/15a), establishing that the financial assessment for a maintenance debtor incarcerated for attempting to murder the mother of the maintenance creditor should be based on income earned prior to imprisonment. This holds even if the offence was committed to evade maintenance obligations. The precedent is relevant to the current case as well, as the impact of imprisonment results in a notional calculation of earning capacity. The specific reason for incarceration is immaterial, since the nature of the crime does not change the debtor’s inability to participate in the workforce or earn income during incarceration—except in rare circumstances where the debtor retains ongoing income or sufficient assets, which is not applicable here.

An individual obligated to pay maintenance to a divorced spouse is not required to remit payments based on imputed income during the period of imprisonment, even if incarceration resulted from an attempted murder of the spouse

OGH 4 Ob 138/25k (28 January 2026)