What issues do I need to settle for a divorce?

There are several issues to settle in most divorces:

  • If you have not entered into a prenuptial agreement (“Ehevertrag”), the assets generated during the marriage will be divided between the partners in the event of a divorce. This rule is called "property equalisation" rule ("Vermögensausgleich" or "Zugewinnausgleich"). However, it does not apply to the assets which a spouse owned prior to the marriage. If you have agreed in a prenuptial agreement that your entire property belongs to both spouses ("Gütergemeinschaft"), everything will be divided between you and your partner. In case you have both indicated in your prenuptial agreement that the assets generated during the marriage will not be shared ("Gütertrennung"), then both partners keep their property and nothing needs to be divided.
  • Do your best to come to a mutual agreement about the ownership of the assets with your spouse outside the court. If a mutual agreement is not possible, your lawyer can help you to file a claim for property equalisation at the Family Court- keep in mind that filing such a claim will increase the service fees you are required to pay to your lawyer and the court.
  • In case of a divorce (and also during the “Trennungsjahr”), usually, one of the spouses is obliged to pay maintenance. In other words, if you are unable to provide for yourself, your spouse is obliged to support you financially. This obligation applies to your spouse when you cannot earn a living due to childcare, old age, health conditions, unemployment or if you are in vocational training. In these cases, your spouse is also obliged to provide financial support for the children you have together, if they live with you. The amount of maintenance payment you receive depends on the financial conditions during the marriage. However, it is important to keep in mind that your spouse needs to earn enough and support himself as well. According to family law, you cannot demand financial support when your spouse does not earn enough money. In case your spouse is not able to pay maintenance while you have little to no income, you can receive state benefits. If possible, come to a mutual agreement about maintenance payments outside the court. If this is not possible, you can file a court order with the help of your lawyer. Involving the lawyer and the court, however, will increase your legal costs.
  • If you have children together, you need to clarify with whom the children will live in the future and whether you will share their custody or not. If only one of the parents takes on the children's custody (“Sorgerecht”), he, he or she will be solely responsible for the children's upbringing. The parent who has the custody decides, for instance, which kindergarten or school the children go to, with whom they interact and where they live. According to the “Parental visiting rights” ("Umgangsrecht"), the parent who does not have the right of custody is entitled to see his children regularly. You and your spouse can reach a mutual agreement on these issues outside the court. Only if you fail to come to an agreement, will the court intervene and decide about custody and visiting rights. In this case, the main priority is always the wellbeing of the children. Try your best to reach an agreement on child custody and visiting rights outside the court. If you cannot agree, you can file a claim in the court with the help of your lawyer. Involving the lawyer in the conflict, however, will increase your legal fees.
  • After the divorce, a so-called "pension sharing" rule ("Versorgumgsausgleich") applies to the couples' pension entitlement. In principle, the longer you have worked and the more you have earned, the higher the amount of pension you will receive. In a marriage, however, often one spouse stays at home, for instance, to care for the children. So, he or she will be entitled to a lower pension compared to the other person. In the case of a divorce, the person with the more substantial pension entitlement must hand over part of his pension rights to his/her partner. During the divorce process, the Family Court decides what portion of a person’s pension rights must be transferred to the spouse.

Important: If you and your partner disagree on your rights and obligations after divorce, you can try mediation before taking matters to the Family Court. Mediation can save you a great deal of time and money. Mediation means you and your partner try to find a solution to all disputed issues regarding childcare, custody, etc., with the help of a consultant. You can negotiate and agree on everything- however, the court is the only authority which calculates and decides the portion of pension rights to be shared. Here you can search for a divorce mediation service in your district.