"Grounds for divorce: mismatched seasons — she was having her Indian summer, he his autumn of creative decline." — Boris Krutier
As statistics show, even a feeling as wonderful as love is not always a guarantee of family happiness for years to come. It is entirely understandable that few newlyweds, standing at the altar or before the registrar, give much thought to the consequences of a possible divorce. Yet the question of dividing property acquired during the marriage arises inevitably once the family ship runs aground on the rocks of everyday life. This question is resolved in a particularly complicated and lengthy way in Germany — perhaps because the state stands guard over the interests of the family and, until the very last moment, tries to "save" the couple by making the spouses fully convince themselves that their decision is the right one. An interesting feature of divorce German-style, unlike in the post-Soviet countries, is therefore the mandatory separation period (German: Trennungsjahr), lasting from 8 months to 3 years, which gives the couple time to reflect on whether separating truly makes sense. A mandatory condition of the "separation period" is that the spouses live apart. If, for whatever reason, moving out is not possible, living under the same roof is permitted, provided the spouses keep separate households and no longer have a personal relationship with one another. In such a case, evidence of living separately within the same apartment may be required. If the couple reconciles for longer than 3 months, the running of the Trennungsjahr is voided and begins anew after any subsequent separation.
It should be borne in mind that the official count of the separation period begins only once the relevant petition has been served, regardless of whether the spouses were actually still living together. In most cases this period is one year. If one spouse objects to the separation, the "separation period" is extended to three years. This time is meant to allow the spouses to become certain of the correctness of their decision and of the impossibility of reconciliation.
Depending on the specific circumstances, the proceedings follow one of several scenarios: an "uncontested divorce" (divorce by mutual consent) — the most favorable option, in which both spouses wish to end their shared family life and have already reached agreement on the division of property, the children's residence (if any), and contact arrangements. In this case, the family court's task is reduced to a minimum — verifying that the "separation period" has been observed and formally establishing the dissolution of the marriage. A "contested divorce" arises when there is disagreement over the children's residence, the amount of maintenance, or the division of jointly acquired property; here, the court must rule on every disputed point, and such proceedings can drag on for a long time and involve considerable expense. A divorce without one spouse's consent extends the separation period to three years. A "fast-track divorce" (hardship divorce) is available where there are compelling grounds not to wait out the standard period — proven domestic violence, threats to the life or health of the spouse or children, a serious addiction, or criminal-law violations.
A young woman came to our law firm — let's call her Elizaveta — who was going through a difficult period in her life. She had met her husband Michael (name changed) while still very young, after coming to Germany from Ufa on an Au Pair program. The couple's relationship developed quickly: just a few months after meeting, the young people decided to move in together, and half a year after that Michael proposed to Elizaveta, and they married. Elizaveta moved to Germany permanently under the family reunification program (German: Familienzusammenführung). The couple spent the first ten years of their marriage in peace and harmony — they built a house, established a shared household, and had three healthy children.
After the birth of their third child, however, conflicts began arising in the family with increasing frequency. Elizaveta, always active and capable, could no longer manage all the household responsibilities on her own. What's more, she wanted to pursue further education and fulfil herself not only as a mother but professionally as well. Michael, however, took the position that there was no room in the house for an outsider — whether a nanny or a household helper. At the same time, he himself made little effort to ease his wife's burden, accustomed as he was to the idea that his main duty was to earn money and that home was exclusively a place to rest. Once the disagreements between the spouses and the constant arguments became the ordinary backdrop of their life together, they decided to live apart for a while and test their feelings at a distance. Michael moved into a separate apartment, leaving his wife to live in the house with the children. It must be said that, despite the drama of the situation, Elizaveta, left on her own, managed to pull herself together and build a new life along the lines she wanted. She found a reliable helper for the household and childcare, enrolled in courses in a field that interested her, began regularly attending theaters and exhibitions, and made new, interesting acquaintances. So, after six months of living apart, the spouses filed the official declaration confirming the start of their separation. Anticipating the need to settle any friction that might arise when divorcing her husband, Elizaveta came to our law firm so that we could represent her interests in the divorce proceedings. We advised Elizaveta and explained to her the particulars of the divorce process in Germany.
No marital agreement had been signed between the spouses during the marriage. As a general rule, therefore, property acquired before the family was formed was to remain entirely with its original owner after the divorce. Assets acquired while living together — real estate, vehicles, furniture, shares, and securities — are divided equally. Moreover, once a divorce petition has been filed, any dealings with the joint property are prohibited until it has been divided.
The question of the children's residence after divorce is, in most cases, resolved independently by German citizens themselves. Where there is a dispute, the matter is decided by the family court, which considerably increases the cost of the proceedings.
Determining a child's place of residence depends on the child's age: children under 4 are, as a rule, left with the mother; for a child between 4 and 14, their wishes regarding where they would like to live are taken into account; children over 14 decide for themselves with whom it is better for them to live.
German law enshrines both parents' right to raise their child and to have a say in important decisions in the child's life, which is why it is not possible to forbid the other spouse from having contact with their shared children, or to disregard that parent's views on key questions — choice of school, the need for complex medical treatment, a possible change of residence, and other important matters. In our client's case, the spouses were able to agree independently on the arrangements for the minor children, who stayed on with Elizaveta, and on how often and in what manner they would see their father. All of these agreements were put into writing by our firm's lawyer and signed by both spouses.
We advised our client that, to avoid disputes and disagreements over the division of property, she should try to reach an amicable arrangement with her husband and enter into a marital agreement (German: Ehevertrag) with him. A marital agreement is an arrangement that governs the spouses' property relations during the marriage, as well as the consequences of their living apart. As a rule, it also settles their relations after the divorce. Such an agreement can be signed either before the marriage is registered or at any time during it. A separate question is whether, after their estrangement, the spouses were actually prepared to make the compromises that entering into such an agreement inevitably requires. It should also be borne in mind that a court can declare a marital agreement invalid if it clearly disadvantages one of the spouses. Family law protects the welfare of children to a particularly high degree — any agreement that could adversely affect the interests of the couple's shared children is likewise invalid.
Acting on Elizaveta's instructions and protecting her rights and legitimate interests, our firm's lawyer held numerous negotiations with Michael and agreed with him on the terms of the marital agreement. Among the individual points settled in this agreement were the arrangements for dividing property upon divorce (German: Zugewinnausgleich), the equalization of pension entitlements (German: Versorgungsausgleich), maintenance payments (German: Unterhalt), and the division of household effects (German: Hausrat). At the same time, our lawyer explained to the client that contractual limits on child maintenance (German: Kindesunterhalt) and on maintenance owed to a spouse during the period of separation before the divorce (German: Trennungsunterhalt) are not legally possible, so this issue remained outside the scope of the agreement the spouses signed.
From Our Firm's Practice
As statistics show, even a feeling as wonderful as love is not always a guarantee of family happiness for years to come.
As a result, the professional help and support provided by our firm's lawyer enabled the spouses to settle all matters relating to the division of their joint property without any additional economic loss. The case was accordingly concluded with the least possible expenditure of time and money. Without bitter conflict or mutual recrimination, the spouses chose to build their future lives independently, while not forgetting that they remain jointly responsible for their three minor children. All that remained for us was to wish them well for the future and to let them both part "in peace."
Of course, each of us hopes to find our other half and to spend the rest of our days with that person, standing by them through hardship and joy alike — but life is not simple, and it often has its own corrections in store. Our firm's lawyers, with a considerable track record of successfully resolved cases behind them, can help put everything "in order" during a divorce, help the parties find compromises on disputed issues, and in doing so help preserve a good relationship with a former partner.
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