Separation and divorce
The end of a marriage can be a very emotional process, in which financial aspects, the allocation of a home, maintenance payments and child issues must also be decided. We help the to parties reach an amicable settlement wherever possible. If their views on the consequences of divorce or separation are too far apart, we provide guidance throughout the proceedings.
Questions on “Separation and divorce”
Divorce by joint request: If the spouses are able to agree fully on the consequences of the divorce, they can submit a joint divorce request and an agreement on the consequences of the divorce at any time to the court at the domicile of either spouse.
The court then requests a cost advance from both parties, additional documents if necessary, and convenes the parties to a hearing. At the hearing, the court examines whether the divorce decision and the divorce agreement are based on the free will and careful reflection of the parties. If this is established and the joint divorce agreement complies with the statutory provisions, the court pronounces the divorce and approves the divorce agreement.
If the parties are only able to partially agree on the consequences of the divorce, they may jointly request the divorce and request that the court judge the legal consequences.
Divorce action: A spouse may apply to the court for a divorce if the spouses have lived separately for at least two years. This can be done against the will of the other spouse.
The divorce action must be filed at the domicile of one of the spouses. It need not be substantiated (so-called unsubstantiated divorce action). The divorce action must, however, contain petitions on the issue of the divorce, the financial consequences and issues relating to the children.
The court then requests a cost advance from the plaintiff and summons the spouses to a conciliation hearing. The court tries to reach an agreement with the spouses on all the disputed points. If this is not possible, (further) submissions are exchanged and negotiations are held.
If waiting for the two-year separation period seems unreasonable for compelling reasons (e.g. physical violence), a spouse may also request the divorce before the end of the separation period.
Child maintenance is provided in the form of care, education and the payment of money. The parents are to jointly provide proper maintenance support to the child. The child maintenance contribution should correspond to the child’s needs and to the parents’ financial circumstances and resources.
Child maintenance consists of in-kind, cash and maintenance support. In-kind maintenance consists of care, upbringing and education. When determining the child’s (financial) maintenance, the cash maintenance and the maintenance support must be calculated. The cash maintenance includes the direct child expenditure such as the base amount, a share of living costs, the health insurance premium, third-party care costs etc. The maintenance support is calculated according to the latest case law of the Federal Supreme Court according to the cost of living method. In accordance with this method, the maintenance support covers the costs of living of the parent providing the care, insofar as he is unable to cover these costs himself due to looking after the children
Separation or divorce is a burden on children. This is why the presence of the person of reference and interfamily dialogue are of enormous importance. The court refers to the child’s best interests as the principle guideline when deciding custody. For the child to be able to maintain regular contact with both parents even after separation or divorce, the court must consider alternating custody (so-called alternating care concept). The court examines in particular the parents' capacity to educate, the geographical situation, such as the distance between the parents' homes, and the stability that continuing the existing childcare regime may provide.