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Consultancy & extrajudicial representation

Do you need a lawyer for out-of-court solutions?

If you still have questions after the initial consultation, I will be happy to answer them by phone, video call or in writing (by email or letter).

06174 – 93 57 57 0
marx@familienrecht-marx.de

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Calculations and negotiations under family law

The initial consultation is often followed by a phase in which the existing claims and obligations are specifically determined, calculations are made and negotiations are conducted with the opposing party or its lawyer.

In separation and divorce situations, these negotiations represent the core of the out-of-court divorce process, the design of which is largely left to the spouses themselves or their lawyers. In these cases, a whole range of issues regularly needs to be clarified, which ideally should be regulated in a separation and divorce agreement.

The problem here is that the applicable law does not provide a clear solution for many issues. For example, in alimony and gains equalisation law, assessments often have to be made, such as the market or rental value of real estate, where even experts arrive at very different estimates.

When calculating maintenance, there are regularly disputes about which (concrete or fictitious) income should be used as a basis for the calculation, which deductions can be recognised, how high the concrete need for maintenance actually is and how long maintenance still has to be paid to the ex-spouse after the divorce. Where the law uses terms such as ‘equity’, it should be expected that two lawyers will come to very different conclusions.

In other areas, the law provides for virtually no specific guidelines, for example, on the question of how joint children will be cared for in the future and what should happen to joint property when the couple separates and divorces. Should the children live with one parent (residency model) or should there be an alternating model? Can one of the spouses take over the matrimonial home and pay the other one off, or pay him or her a compensation for use or rent, or does the property have to be sold? The spouses and their lawyers are particularly challenged here because these areas in particular require a settlement.

The role of lawyers as regulators and negotiators

Some spouses already perceive such attempts at regulation as ‘War of Roses’ and react sensitively to correspondence from the opposing lawyer. However, it must be kept in mind that, under current law, with the exception of the pension equalisation, the state assumes no responsibility for ensuring that the spouses settle such important financial issues as post-marital alimony, equalisation of gains, the whereabouts of joint children and child support in the divorce process at all, let alone that this is done in an orderly and fair manner and in accordance with applicable law.

Unlike in the USA, where a number of standardised forms (the ‘divorce papers’) containing precise details of the desired settlement of these issues, along with detailed information on income and assets, must be submitted to the respondent with the divorce petition, in Germany it is possible to get divorced without having settled anything at all in this regard. There is no institutionalised ‘marriage resolution system’. Rather, it is left to the spouses themselves to decide whether and to what extent they clarify these matters, which are often essential for them, with each other.

Most people experience a great deal of emotional stress when going through a divorce. They are unfamiliar with the complex rules of family law and usually lack the necessary negotiating experience to assert their position against their former partner if the latter refuses to cooperate. In this respect, there is often no alternative to involving specialised lawyers for both parties. Only they can ensure that all relevant issues are addressed in a structured, objective, legally secure and fair manner.

Typical legal work in divorce cases

As a specialist in family law, I can take on the following work for you:

  • Enforcing disclosure obligations against your spouse for the purpose of subsequently calculating claims for maintenance and equalisation of  gains, and reviewing the incoming documents and receipts;
  • Compiling the disclosure document regarding your income and assets on the basis of the documents you have provided at the request of your spouse;
  • Determining and enforcing your maintenance claims or defending you against unreasonable maintenance claims from other parties;
  • Determining and negotiating claims for equalisation of gains;
  • Clarifying your family’s future housing situation, including the question of who will pay the rent or mortgage and utility bills for the marital home in the future;
  • Supporting you with the handling of certain tax issues, e.g. the continued joint assessment for income tax in the year of separation or the so-called “limited real splitting” in the context of maintenance under German law (Annex U to the income tax declaration), often with the involvement of your tax advisor;
  • Negotiating with the other parent about where the couple’s children will live after the separation and how access of the other parent should be organised in the future;
  • Negotiating with the other spouse on the division of property, in particular with regard to joint real estate and accounts/deposits, and on the division of joint liabilities (joint debt settlement),
  • Drafting of a comprehensive separation and divorce agreement after successfully finishing the previous negotiations.
  • Drafting other agreements (e.g. contact agreements) and legal declarations (e.g. indemnity and disadvantage compensation declarations).

Remuneration for out-of-court services

I provide these services on the basis of a mandate and fee agreement to be concluded in advance, in which the specific mandate and a performance-related remuneration are defined.

As a rule, in my office, legal advice and out-of-court representation are settled on the basis of an hourly rate agreement, i.e. according to the actual number or hours spent on the respective matter. Invoices are sent at regular intervals, usually monthly, so that you can always keep an eye on the costs.

In your interest, I always try to be fully transparent with regard to the expected lawyer’s fees and to coordinate the procedure also with regard to the cost implications together with you.

Contact

To settle your family matter without going to court, please contact us at:

T: 06174 – 935 75 70
E: marx@familienrecht-marx.de

How to find us