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Advice on divorce

Everything you need to know about divorce

In Germany, a marriage can only be dissolved by court order. Specialised family courts which are part of the local court system are responsible for this. The court with the greatest proximity to the family generally has local jurisdiction. If the couple has children, the court of the place where the minor children live has jurisdiction. Otherwise, the court at the last common residence has jurisdiction, provided that one spouse still lives there; otherwise, the court at the new place of residence of the defendant has jurisdiction. Special rules apply in cases with an international dimension. Here, the international jurisdiction must first be determined.

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The only requirement for divorce: failure of the marriage, the significance of the year of separation

Nowadays, the only requirement for divorce is that the marriage must have failed (so-called principle of disruption). It no longer matters who is responsible for the marriage failure. The so-called fault principle was abolished in Germany in 1977.

  • According to German law, a marriage is considered to have failed when the marital community no longer exists and and it cannot be expected that the spouses will restore that community. When a marriage has actually ‘failed’ can hardly be judged by outsiders. The law therefore makes use of presumption rules that are linked to the period of separation.
  • If the spouses have been living separately for a year and both apply for divorce or one spouse applies for divorce and the other consents, the marriage is irrefutably presumed to have failed. The same applies if the spouses have been living separately for three years. In this case, the consent of the other spouse is not required.
  • According to the law, in order to live separately, the domestic community must be dissolved and at least one of the spouses must have the intention of not re-establishing it because they reject the marital union. As soon as one of the spouses moves out of the marital home with the intention of separating, the one-year separation period begins.
  • In principle, it is also possible to separate within the marital home, especially if financial circumstances are difficult. In this case, it is particularly important that no more mutual care is provided and that separate areas within the marital home are occupied. In reality, such constellations are often prone to disruption. For evidentiary purposes, the time of separation should be documented particularly clearly in such cases, for example, in a lawyer’s letter. Legal advice on how to organise living together ‘under the same roof’ is also recommended.
  • If, after a year of separation, one spouse petitions for a divorce but the other spouse does not agree, the marriage can still be dissolved. In this case, the spouse seeking the divorce must simply demonstrate the failure of the marriage and, if the other spouse disagrees, prove it. The applicant must only credibly demonstrate that they themselves reject the restoration of the marital union and want to be divorced, for example, because they have turned to a new partner.
  • As long as there is no case of hardship, such as the other spouse or a joint child being at acute risk of suicide or similar serious circumstances, the marriage will be dissolved even against the will of the other spouse. So you don’t have to live separately for three years if the other spouse objects to the divorce, as is often mistakenly assumed.
  • The aim of the law by demanding a year of separation before allowing a divorce was to protect you against haste (“cooling-off period”). You shouldn’t run straight to the divorce court after the first marital quarrel. At the same time, the year of separation should be used to amicably settle the financial consequences of the separation and divorce and the future care of joint children.
  • Even if it keeps being repeated by the tabloids: a divorce before the end of the separation year (so-called ‘flash divorce’) is legally possible only in absolutely exceptional cases, such as cases of severe domestic violence, serious insults and gross defamation, which make it unreasonable for the aggrieved spouse to continue to maintain the marriage bond. A new partnership established during the marriage does not in itself constitute such a case of hardship, as long as it is not lived out in a particularly dishonourable manner. The court  would have to assess all the circumstances of the individual case.
  • Occasionally, the spouses grow closer again during the year of separation and the marital union is resumed. The aim of the law is to keep the path to preserve the marriage open and therefore stipulates that living together for a short period of time does not toll or interrupt the one-year separation period. If such an attempt at reconciliation fails after two to three months, the original date of separation remains the starting point for the one-year separation period. Only if the couple lives together again for a longer period of time does the one-year separation period begin at the point of the new separation.

Premature divorce petition

According to the concept of the law, the separation year must have expired at the time of the (last) hearing in the divorce case. It is therefore possible to file the petition for divorce with the court before the end of the separation year, because several months usually elapse between the filing of the petition and the hearing, during which time information from the pension providers is obtained in the pension splitting proceedings.

Theoretically, if you file for divorce too early, you risk having your petition dismissed. The other spouse can petition the court to dismiss the petition as premature and to hear the spouses immediately regarding the time of separation. In times of massively overburdened courts, however, the risk that such a hearing will actually be held promptly and the petition dismissed as premature is rather low. If the divorce petition is filed only a few weeks before the end of the separation year, the court will most likely do nothing and only schedule the hearing date when the separation year has also expired from the point of view of the other spouse.

This has serious consequences with regard to the claims for equalisation of accrued gains and pension splitting of the spouse confronted with the premature petition. In both equalisation systems, the end of the equalisation obligation is marked by the actual service of the divorce petition. Thus, by deliberately filing an application prematurely, one can gain a financial advantage. Only in rare cases do the courts obtain information on both ends of the marriage as a precautionary measure and wait for the results of the hearing of the spouses on the separation.

Mandatory representation in divorce proceedings – can one lawyer represent both spouses?

The divorce petition can only be filed by a lawyer (compulsory legal representation). The other spouse does not necessarily need its own lawyer for the divorce proceedings. As long as the other spouse merely agrees to the divorce and does not file any further petitions with the court or make any statements relevant to the proceedings, it can also appear in court alone.

This is what it really means when spouses occasionally tell you that they had ‘a joint lawyer’ in their divorce proceedings. The truth is that only one of the spouses was legally represented in these proceedings. The other spouse did not have its own legal counsel. Lawyers are legally prohibited from representing both spouses in separation and divorce proceedings due to the conflicting interests involved. Such representation can even constitute a criminal offence of betrayal of a client (Section 356 of the German Criminal Code).

If the other spouse wishes to file its own petition for divorce, have certain divorce-related matters decided by the court, have a divorce agreement recorded at the hearing date or submit a waiver of appeal, it has no choice but to hire its own lawyer.

As a rule, two lawyers are involved in divorce proceedings, especially if a divorce agreement has previously been negotiated with the involvement of a lawyer.

Initiation of divorce proceedings

The divorce petition must be accompanied by copies of the marriage certificate and the birth certificates of all minor children. The petition itself must include information on the separation and whether certain consequences of the divorce have already been settled out of court at the time of filing the petition. A provisional litigious value of the proceedings must also be stated in the petition, which the court can use to determine the advance on costs. The court then assigns a file number to the matter.

The person who files for divorce must first transfer an advance for the court costs to the court cashier. Only then will the divorce petition be formally served on the other spouse. The date of service is marked on the envelope, which is usually yellow. This envelope should be kept in a safe place, because the day the divorce petition is served marks the end of the marriage in financial terms. This is the relevant date for both the pension splitting and the equalisation of accrued gains, after which no further pension or asset equalisation takes place.

As soon as the date of service has been determined, the court sends the spouses standardised questionnaires on pension splitting, in which they must provide information on their pension schemes within a period of usually four weeks, so that the court can carry out the pension splitting on this basis.

Court or lawyers: Who settles what in a divorce?

What the court settles for you

It is important to understand that in divorce proceedings the German family courts settle only two things automatically (“ex officio”), namely

  • the dissolution of the marriage and
  • the so-called pension splitting, i.e. the division of all pension rights acquired by the spouses during the marriage time. The main aim here is to protect the economically weaker partner, who has acquired little or no pension rights during the marriage, from poverty in old age.

Unlike in other countries, no automatic protective orders are issued in Germany with regard to joint assets and the residence of joint children when the divorce petition is filed. In the case of divorce, the family courts also do not work towards the spouses dividing their assets fairly among themselves or regulating the questions of maintenance and the residence of the children. They also do not support the enforcement of disclosure obligations.

What you have to arrange yourself

This means, conversely, that the spouses themselves have to take care of the financial consequences of their separation and divorce and the situation of their children. It also means that there is greater uncertainty with regard to the if and how of such arrangements than in countries where – as in the Anglo-American legal system – standardised questionnaires completed in advance by the applicant regarding the desired arrangements (so-called ‘divorce papers’) are sent to the other spouse, and the processes are thus much clearer and more structured.

Typically, the following consequences of separation and divorce are to be settled independently by the spouses:

Separation and divorce agreement – divorce by mutual consent

Ideally, the spouses will settle all separation and divorce consequences by mutual agreement, i.e. without court proceedings. If the relevant provisions have not already been included in a pre-nuptial agreement, this will be done on the occasion of the separation in a so-called separation and divorce agreement, which is either notarised or recorded in court at the divorce hearing.

If both spouses want the divorce and regulate the consequences of the divorce by contract, it is referred to as an amicable divorce. Admittedly, the term is not used in the German statutory law nor does the law attach any particular legal consequences to it. Nevertheless, an amicable divorce is the declared goal, the gold standard, so to speak, of every marriage dissolution.

Why go to a lawyer for the divorce settlement?

Due to the complexity of the matter and the simultaneously high emotional burden for those involved, which is more pronounced than in almost any other area of law, it is usually highly recommended to seek detailed expert advice and to place the settlement of the divorce consequences in competent legal hands.

Only in this way can you be sure

  • that your rights are fully protected throughout the divorce proceedings,
  • that you receive a legally effective and well-thought-out agreement that allows you to plan for the future and gives you security,
  • and that you do not make any mistakes out of ignorance or due to fraud that you may regret for the rest of your life.

You may be facing your first divorce, but your solicitor has usually handled hundreds of similar cases.

Please note: Using a lawyer to settle the consequences of divorce amicably does not mean waging a war, but is the usual and system-compliant way!

This cannot be emphasised enough. Anyone who regards a standard request for disclosure from their spouse’s legal counsel as a declaration of war has not understood the peculiarities of German divorce law.

There may be reasons to shy away from going to a lawyer in a separation and divorce situation. Besides the proverbial sticking-one’s-head-in-the-sand, it is often the fear of angering one’s spouse and provoking an argument. Sometimes, outright threats are made (‘If you go to a lawyer, there will be war.’) in order to perpetuate the existing power dynamics in the marriage beyond the separation. In return, the other party may even threaten to hire an “attack dog” to intimidate the other party.

Often it is the first time in life that one actively seeks support in the dispute with one’s partner and thus gets the feeling of rebelling against the partner. This can trigger anxiety. However, it is precisely in such a situation that professional support seems all the more necessary.

A good divorce lawyer will always adopt an objective and professional tone when dealing with your spouse and explain to it what information is needed from it and what the aim of the contact is, namely to reach an amicable settlement on the consequences of separation and divorce. She will maintain a professional distance in the matter and towards the persons involved and represent your interests in the best possible way.

A good family lawyer will also always automatically bear the interests of your children in mind when discussing possible access arrangements with you or negotiating child support. Based on her many years of experience in similar cases, a good family lawyer can often also give you practical tips on how to deal with your children and the other parent in the separation situation.

Another reason for avoiding legal advice is the fear of the high costs that could arise from the involvement of lawyers. As long as the settlement of divorce consequences in Germany remains largely in the hands of the spouses themselves and the legal situation remains as complex and multi-layered and, on top of that, as volatile as it is at present, one can only strongly advise the use of competent legal advice and representation in a separation situation.

In order to save costs, some spouses decide to take the matter in their own hands, sometimes by consulting questionable online guides, or they simply don’t work out their financial issues out of lack of knowledge, laziness or because the subject matter is too difficult. Such behaviour has led to seriously negative consequences for many people in the past.

Mediation – a sensible alternative?

An alternative form of conflict resolution in separation and divorce situations is mediation. Here, the spouses try to settle the financial and other consequences of their separation and divorce together, with the help of a neutral third party. Depending on the complexity of the matter and the ability of the spouses to conduct negotiations independently and to adequately address their financial issues, this procedure can be a sensible alternative or supplement to negotiations by lawyers. In contrast to other countries, there is no legal obligation in Germany to conduct mediation proceedings before initiating court proceedings.

In any mediation, it is imperative that external lawyers be consulted before the finalisation of the agreement in order to ensure that the parties involved are fully informed about the legal situation and can assess whether they may be disadvantaged by the agreement they have reached in mediation. The mediator is not allowed to give any legal advice on the specific case, as this would violate his duty of neutrality. This is often overlooked. In this respect, mediation proceedings are not necessarily shorter or cheaper than negotiations by lawyers.

In any case, financial reasons alone should not be the deciding factor in choosing the right type of procedure. In the worst case, after several months of mediation that is ultimately abandoned without a result, everything has to be reopened and renegotiated by the lawyers. This increases the total costs of the divorce and the length of the proceedings considerably.

First step: exchange of information and calculation of maintenance and equalisation of gains claims

In order to be able to regulate the consequences of divorce in a legally secure manner, a relatively extensive exchange of information between the spouses is required: In addition to information on the current income and expenses of the spouses for the purpose of alimony calculations, information on the respective assets at the time of marriage and at the time of the divorce petition being filed must be exchanged for the purpose of calculating the equalisation of gains. The law provides for mutual disclosure obligations. Based on the information obtained, the respective calculations can then be carried out.

These calculations are often highly complex and should be carried out by specialised lawyers who keep an eye on the extensive and constantly changing case law on these topics and are confronted with such cases on a daily basis. In alimony calculations, for example, determining the relevant income of the self-employed can be problematic, as can the determination of a so-called housing benefit if one of the spouses lives in a property owned by it during and after the separation year, the relevance of certain deductible items, the additional or special needs of children or a spouse, and occasionally also issues arising when there are several dependents or several maintenance debtors.

The calculation of alimony in the case of childcare in the alternating model also requires special legal expertise. Under no circumstances does the principle apply that no child maintenance is owed in the case of an equal alternating model. Your lawyer will determine for you the amount of any additional peak equalisation that is owed. Changing tax brackets must also be taken into account when calculating maintenance.

Equalisation of gains primarily involves the valuation of assets on the relevant cut-off dates. In this context, the valuation of real estate and company shares is particularly problematic. Experts such as real estate appraisers or auditors often have to be consulted to provide the spouses with the information they need.

Children in a divorce

In addition to the financial aspects of the separation, it is often the children that the parents fight over. Depending on which parent the children live with after the separation, and on the ratio of the respective care periods, the obligation to pay child support changes. Other financial consequences are also linked to the care of the children, such as the entitlement of civil servants to a child supplement, the receipt of tax code II (for single parents), the receipt of state child benefit and other social benefits.

Nevertheless, the financial consequences of child care usually play only a minor role when it comes to the fate of children in the event of separation. Often parents are afraid of losing their children too when they have already lost their partner and therefore consciously or unconsciously try to win the children over to their own side. It is not uncommon for the conflict between the partners to be transferred to the parental level, making it difficult for the parents to allow the children to have contact with the other parent. The needs of the children are often completely overlooked.

Particularly in this highly sensitive area, which often puts a great strain on all family members, careful and experienced legal advice can help to de-escalate the situation and promote understanding. As a rule, children should be enabled to maintain or rebuild a good relationship with both parents and not have to choose between them.

If necessary, judicial ruling on the consequences of divorce – the contested divorce

If the attempts at reaching an out-of-court settlement fail, for example, because the spouses cannot agree on certain legal issues or valuations or because one of them completely refuses to cooperate, it is possible to have one or more consequences of divorce settled by the court. This can be done either together with the divorce in what is known as a consolidated proceeding or in a separate court proceeding. It is only in the case of a court settlement of the divorce consequences that one speaks of a contested divorce. This term is used anywhere in the code law either, but it is still frequently used.

By filing so-called consequential applications, which must be done no later than two weeks before the date of the (last) court hearing of the divorce case, the divorce can be significantly delayed. Consequently, consequential applications are often used as a strategic tool in divorce proceedings. Your divorce lawyer will advise you on this as well.

The divorce date

As soon as the family court has received all the information from the pension providers, it will schedule a date for the hearing and issue summons to the parties involved. As a rule, the spouses must appear in person. Only the spouses, their lawyers and the judge are present at the divorce hearing. Lawyers and judges wear black robes in the courtroom. You will be sitting next to your lawyer, your spouse will usually sit opposite you next to his or her lawyer.

Hearings in family matters are not public. You therefore do no need to worry that unpleasant people may find out about your family matters this way. New partners are also not allowed in the courtroom.

As a rule, a divorce hearing does not take longer than 15 minutes, especially if a draft of the pension splitting has been sent by the court to the lawyers in advance for review and the text does not have to be read out again. The judge asks the parties about the circumstances of the separation and, if there are children, advises the parties of the possibility of seeking support from the child and youth welfare services if needed.

The divorce hearing may take longer if a separation and divorce agreement is to be recorded in the minutes.

As a rule, the judge announces the divorce decree and the decree on pension splitting at the end of the session. Some judges ask the parties to stand up for this. At the very end of the hearing, the litigious value of the proceedings is determined. This is used to determine the court and lawyer fees.

The respective court orders do not become final and bilding until the expiry of the one-month appeal period, provided that no appeal is lodged. However, the spouses can also submit a so-called waiver of appeal at the divorce hearing if both are represented by a lawyer. In this case, the divorce becomes final and binding on the date when the divorce decree is pronounced.

Length of proceedings

The length of divorce proceedings depends not only on the general workload of the court or the judge in charge, but also on the number of pension rights to be split in the particular case and whether consequential applications are filed. The quickest way for a couple to get their divorce date is if they have excluded pension splitting in their marriage contract and have also settled all other divorce consequences out of court by mutual agreement and do not live in a metropolitan area. In the Taunus and Rhine-Main area, the average duration of divorce proceedings tends to be 8 to 14 months.

Costs of divorce proceedings

The costs of divorce and pension splitting proceedings are set by law. In addition to court fees, the spouse who filed for divorce will also incur lawyer’s fees (the other will incur lawyer´s fees if it also hires a lawyer), the amount of which depends on the income and assets of the spouses, taking into account personal allowances and the number of pensions split in the pension splitting proceeding.

The court will order a so-called cost waiver in the case of divorce. This means that the court costs are split in half and each spouse has to bear its own lawyer’s fees. Since the applicant spouse had to advance the court costs when filing the application, it can demand a fifty per cent reimbursement from the other spouse after the proceedings have been concluded. If the court costs exceed the advance payment already made, the court will usually collect the outstanding amount from the other spouse.

If the divorce is amicable and only one lawyer appears at the divorce hearing, it is often agreed that the lawyer’s fees for the court proceedings will also be split in half.

Contact

Do you need help with your divorce?

You can contact me by phone at any time during my office hours, or by email outside office hours. I will get back to you as soon as possible.

Mon-Fri: 9.00 – 13.00 and 14.00 – 18.00
T: 06174 – 935 75 70
E: marx@familienrecht-marx.de

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