Litigation is always a burdensome and stressful process that, as a rule, demands a great deal of emotional energy. Court disputes take on a particular edge in family matters, especially when they concern a child's place of residence, the division of property, or the payment of maintenance. In such cases, a qualified lawyer can become a lifeline for the client, since they can often reduce what would otherwise be tense, emotionally charged communication between the parties to a formal, legally structured resolution of the problem. It should be noted that, under current German law, the involvement of a lawyer for at least one of the parties is mandatory in family-law disputes. This puts the client in something of a dilemma, since retaining a lawyer replaces emotional costs with financial ones. German law provides options for the state to cover court costs where a party lacks the means to pay (German: Prozesskostenhilfe), though here too there are certain nuances.
Regina (name changed), originally from Russia, became a client of our law firm. She had lived in Germany with her husband and their teenage son for many years. But, as unfortunately happens so often, the couple lost interest in each other, and the reasons against staying together came to outweigh the reasons for it, leading to constant arguments and mutual dissatisfaction — so the couple decided to divorce.
The divorce was initiated by Regina's husband, Denis (name changed). Denis, German on his father's side and fluent in German since childhood, settled in quickly after moving to Germany, found a well-paid job, and immediately felt at home. Regina, on the other hand, was a homemaker raising their child; she only ever learned German superficially and devoted all her time to running the household. That is precisely why, once her husband decided to live separately, it turned out Regina was unable to support either herself or their son, who stayed with her. Recognizing this, Denis agreed to pay child support for their son and to cover the rent for the apartment where our client and her son lived.
At almost the same time, however, Regina's husband filed three separate lawsuits, seeking to exercise his right of contact with the child, to have the child's residence fixed with him, and to be granted sole custody. Our client was shocked by this turn of events and immediately came to our law firm. Regina was honest from the outset that she had no money to pay for a lawyer, and asked whether there was any way for her interests to also be represented in court by counsel. She pointed to the seriousness of the matters before the court, on which she wanted to submit her own objections, as well as to her imperfect command of German, which would not allow her to take part in the hearings in person.
Faced with this problem, our lawyer decided not to leave the client to fend for herself, and suggested she first try to obtain state aid to cover the costs of taking part in the proceedings (German: Prozesskostenhilfe). The lawyer warned, however, that there was a significant risk of refusal, since the plaintiff in these cases was Regina's husband, who was able to pay the necessary costs himself. Our client decided to try this route, so our lawyer, acting on Regina's behalf, applied to the court for state legal aid to cover the procedural costs. The court nevertheless ruled that state aid should not be granted in this matter, since Regina's husband had sufficient means to fund the proceedings.
On the basis of that court decision, our lawyer suggested that Regina recover the amount needed to cover the court costs directly from her husband. Under § 1360a of the German Civil Code (Bürgerliches Gesetzbuch, BGB), if one spouse is unable to bear the court costs, the other spouse is obliged to advance them the money to cover those costs, provided this is equitable for both sides. Our client was glad to take advantage of this further option the law provided.
Important at Divorce
Under § 1360a of the German Civil Code (BGB), if one spouse is unable to bear the court costs, the other spouse must advance the money to cover those costs, provided this is equitable for both sides.
Having obtained from the client all the necessary proof of her financial hardship, as well as documents confirming Denis's level of income, our lawyer drafted a formal demand requiring an advance to cover the costs of all three lawsuits initiated by Regina's husband, and sent it to Denis's representative. Some time later, Denis's lawyer informed us that Regina's husband refused to pay the amounts specified in the demand to cover the court costs, on the grounds that Denis was already voluntarily paying child support and covering the apartment's rent.
Following this refusal, our lawyer, after coordinating with the client, filed the corresponding lawsuit with the court. In the filing, the lawyer stated that having a qualified lawyer represent Regina's interests in the proceedings mentioned above was crucial to protecting Regina's and her son's rights and interests, since Regina could not take part in the proceedings on her own because of insufficient language skills and legal knowledge. Moreover, the possibility of the other spouse advancing the court costs is expressly provided for by law. Since Regina and Denis were still legally married, that provision applied directly to this situation.
A few days after the lawsuit was filed, our lawyer received word from Regina that Denis had transferred 5,000.00 euros to her bank account as an advance payment toward the compensation she could expect from the future division of marital property after the divorce. Our client was very surprised, since the divorce itself would only become possible in a few months' time, once the statutory one-year separation period had elapsed — and she had not even begun to think about dividing the property. Our lawyer, however, immediately recognized that Denis had made this move specifically to eliminate any grounds for Regina to demand an advance on court costs from him.
Following these events, the opposing side, as expected, contested the lawsuit filed by our lawyer, informing the court that an advance on court costs from Denis was excluded because Regina had already received the 5,000.00-euro advance on her expected share of the marital property, meaning Denis's wife was able to cover the necessary costs herself. Denis's representative further claimed that Regina owned an apartment in Russia that was rented out, so our client was also earning rental income.
Our lawyer, in turn, pointed out that the sum transferred by Denis could not be used to cover the court costs of the three proceedings, since the claims raised in the lawsuit could not be satisfied out of the amount Regina would receive from the division of property. Moreover, that money needed to go toward pressing living expenses such as rent, food, clothing, and so on, since Regina's husband had stopped paying her the maintenance she was owed.
As for the alleged rental income from the apartment in Russia, our lawyer emphasized that Regina had inherited the apartment from her mother, that it was in very poor condition, and that our client had only allowed an acquaintance to live in it so that she would not have to pay the utility costs herself — so there could be no question of any rental income.
In order to examine the case file more closely and hear the parties' arguments, the court scheduled an oral hearing, at the end of which it concluded that the 5,000.00 euros Regina had received from Denis could nonetheless be used by our client to cover the court costs, while the question of recovering additional spousal maintenance could, if necessary, be resolved later in separate proceedings.
In this way, the opposing side, by cunningly paying out in advance a sum of money that would have belonged to Regina anyway under the property division, managed to block her from exercising her right to an advance on court costs from her husband. Unfortunately, the court treated the matter in a rather formal and one-sided way, ruling that since Regina's bank account held sufficient funds at the time the lawsuit was considered, no right to an advance on court costs arose.
This example from our firm's practice demonstrates the tricks an opposing party may use to gain a formal advantage in proceedings. Matters like this are highly fact-specific, so case law can vary considerably — but an experienced lawyer will use every legal tool the legislature has provided to protect your rights and legitimate interests.
All rights reserved. Copying or republishing this article requires a link to the original source.
