More than every third marriage comes to an end by way of divorce. In cases where the spouses do not have a valid marriage contract family law covers a wide range of issues which frequently need to be clarified and where we assist you by two of our certified expert lawyers for family law.
1. Parental care and custody
Even after their marriage will have been divorced parents still have the joint right of parental care and custody for their minor children, unless one of the parents will request that he or she be awarded sole parental care and custody. A Court will award this right to one parent only, when parents are no longer able to communicate and cooperate with each other when it comes to their child’s or children’s concerns. A judicial ruling to that effect can, however, be changed any time, if the child’s or children’s welfare calls for such a change.
2. Child support
The parent with whom a child or children are not mainly staying or living owes payment of child support, the amount of which is stipulated on a nation-wide basis by the so-called „Duesseldorf Tabelle“ and which depends on the income situation of the respective parent. There may be exceptions to this rule in those cases where the parent where the children are living has an income which is considerably higher than the other parent’s income.
3. Spouse’s alimony and support
A modification of the pertinent laws, which was enacted and has been valid as from 01 January 2008 on resulted in significant changes:
There is no longer a standard lifetime guarantee and the payment of post-marital spouse’s support must be limited in time, which means to say that following the lapse of a period of transition each of the spouses will have to fall back on the same income status which he or she had before marriage.
The situation will be different in such cases only where one of the spouses will have suffered disbenefits or prejudice as a consequence of their marriage, in which case the spouse concerned may be attributed the right to be paid spouse’s support for an unlimited period of time.
In cases where one parent raises and takes care of one or several of the spouses’ joint children this spouse has no obligation to engage in gainful employment or work until the youngest child will have reached the third year of his or her and
this spouse is then entitled to full spouse’s support. As far as the time to follow is concerned there may be individual cases where payment of spouse’s support on the grounds of child-care necessities may continue over many more years, if reasons for such continuation are to be seen in either the child’s or the parent’s person so that full-time gainful employment or work cannot reasonably be expected from such parent.
Considering the fact that solutions to these problems depend very much on every given individual situation every case must be verified extremely carefully by a lawyer who is competent in this special field of family law.
4. Matrimonial property regime
If a married couple did not conclude any marriage contract they will live in what is called a „Zugewinngemeinschaft“ (statutory matrimonial property regime of the community of surplus). In this case the law provides that an equalization of surplus or accrued gains must be made. Each spouse’s increase of assets or property as gained during the marriage will be calculated on the basis of the assets or property owned by him or her at the end of their marriage, with the net worth of his or her assets or property owed at the beginning of their marriage being deducted therefrom. That particular spouse who will be found to have the higher gain is obliged to settle this imbalance with one half portion of the difference.
This new provision of the law which has been in force ever since 01 September 2009 also stipulates that each of the spouses has the right to demand from the other spouse that information and data on the asset status both at the date of service of the petition for divorce and at the date of the spouses’ separation be disclosed. If this information reveals that property or assets have meanwhile disappeared the respective spouse must explain and provide evidence for the use or application of such property or assets. If this spouse will then fail to provide such evidence he or she may be treated in such a way as if such removed property or assets were still available and as a consequence the other spouse’s rights and claims to have part of the gain attained during the spouses’ marriage will increase accordingly. Thus this new legal provision ensures a considerably improved degree of protection against disloyal diminution of property and assets much more so than former law did.
5. Mutual compensation of retirement benefit expectancies
Retirement benefit expectancies/pension benefit expectancies accounts will be compensated by the Family Court, with the result that each of the spouses will eventually *) only have those equal expectancies for his or her
retirement benefits which were gained during the spouses’ married life under such pension or retirement benefit schemes.
6. Costs of divorce
When spouses take their divorce case to Court each of the spouses shall, as a matter of principle, pay for his or her own lawyer’s fees and charges, Court fees being divided in two equal shares, it being irrelevant who of the spouses was the party who filed the petition for divorce.
Even in situations where spouses did conclude a marriage contract such a contract will by no means provide for absolute certainty as to its validity. As a matter of fact such marriage contracts are subject to their validity being verified by the competent Court and they may thus turn out to be invalid if they give rise to a grossly unilateral distribution of burdens or in the case where the contract stands for encroachments upon any of the essential principles which are covered by and protected under German family law. Here again extremely careful and in-depth councelling by a lawyer who is well-versed and specialized in family law is an absolute necessity.