The big guide to divorce - settlement of consequences, pension entitlement and the divorce process - FIV

A divorce consists of many important steps. From the separation year to the divorce petition and the pension equalization to the eventual divorce date. In all these steps, there are important things to consider, such as the right legal counsel, the correct form of applications and forms, in order to facilitate a smooth and quick divorce.

Overview hide

Procedure, costs and the separation year – all the facts about divorce

Divorce is the last resort for many. Nevertheless, there are many facts to know in order to make a divorce as uncomplicated and pleasant as possible for all involved. We, the experts at IHV, therefore clarify all the important questions so that you can approach the subject of divorce with the necessary expertise.

The divorce process – step by step to divorce

The family court generally decides whether a divorce is amicable or contested. If a divorce is amicable between the two spouses, the divorce proceedings are very simple. If the separation year is completed, only the divorce and the pension equalization, which is usually carried out ex officio, must be decided. In such a case, one lawyer is sufficient for both spouses, which saves enormous divorce costs. Often even an online divorce for the spouses offers itself, whereby the time expenditure is enormously minimized and the costs are kept low. An amicable divorce can be greatly favoured by a divorce settlement agreement, which is already drawn up by the spouses during the separation year.

If there is a contested divorce, both spouses are required to be represented by their own attorneys. This increases the divorce costs for both parties enormously. The proceedings in contested divorces usually take longer than in amicable divorces and involve higher costs.

Learn more about the divorce process!

If the divorce date is set by family law, the spouses must appear in court with their legal representatives in the case of contested divorces or with joint counsel in the case of amicable divorces.

The divorce hearing begins with the so-called call to the matter, where the parties and the lawyers are asked into the courtroom and the public is excluded from the proceedings. First, the personal details are checked and a look is taken at the marriage certificate. The court then clarifies the expiry of the separation year and asks whether both spouses consider the civil partnership and conjugal life to have broken down. If either party is not convinced that the marriage has ended, the court will ask why and consider the merits of the case. However, if no successful attempts at reconciliation or inconsistent behaviour by the petitioner can be shown, the divorce may become final. Finally, the equalization of pensions and the subsequent matters in contested divorces are discussed. Once all relevant points have been clarified, the divorce decree or divorce order is issued. For this purpose, the public is re-established and the court announces the decision on both the divorce and possible consequential matters. With this step, the divorce is legally binding.

The family court decides whether it is an amicable or contested divorce
This fact affects the process and cost of divorce

Divorce with separation year – the most important facts

Marriage and the family are regarded as one of the most important social institutions in the legal system. The separation year is therefore intended to act as a preventive measure against possibly wrong, purely emotional and only temporary decisions that could be regretted afterwards. Even though the separation year is seen by many married couples as harassment or a pure burden, the intention behind the regulation is clear, to review and possibly revise the decision in the given time. In addition, the time is useful to take care of some matters that are important for the divorce process going forward. Although there is a requirement to prove that the separation year has been completed, it is not possible to apply to the court for the start of the year or have it notarised. It therefore makes sense to record the beginning in writing.

A shortening or even a complete omission of the separation year can only be brought about by a hardship decision of the court according to § 1565 paragraph 2. An example of such a decision can be extreme domestic violence, which the court classifies as undue hardship.

Attempts at reconciliation during the separation year are certainly permitted. However, these are subject to certain guidelines. Attempts at reconciliation that do not last longer than three months do not lead to an interruption of the separation year. The time during which the separation was interrupted therefore counts towards the 12 months of the separation year. For any attempts beyond three months, the family court will assume that the couple have reconnected. The couple also has the option of withdrawing the divorce petition themselves within this year. If the divorce is still to be carried out after this period, a new petition for divorce must be filed and the separation year starts all over again.

To get a divorce, a couple must go through a separation year
The separation year is subject to certain rules laid down in the law

The divorce settlement agreement – custody, maintenance and amicable divorce

In a divorce settlement agreement, all things concerning the marriage and the divorce can be regulated. In general, this agreement regulates how joint assets, joint children or similar things will be dealt with after the divorce. It is attempted to clarify all points that are normally settled during the divorce in advance, in order to make the divorce as simple as possible. To a divorce succession agreement belong in detail things like the maintenance. Here, both the separation maintenance for the period from the separation to the divorce and the post-marital spousal maintenance for the period after the divorce can be regulated.

The divorce settlement agreement also regulates the custody of joint children, their maintenance and, if necessary, the right of access for the non-caring parent. In addition, the divorce settlement agreement will specify how joint assets, such as the joint home or household effects, are to be dealt with. Other possible points of a divorce settlement agreement are the agreements on the equalisation of gains, exclusion of the legal matrimonial property regime of the community of gains and agreement on the separation of property, the waiver of the right to inheritance and the right to a compulsory portion and the continuation of the joint family name.

The divorce settlement agreement helps to clarify a divorce by mutual consent in a quick and uncomplicated way.
In the agreement, various issues can be settled between the spouses before the court date

The pension rights adjustment – procedure after the divorce

The pension entitlements are different for most married couples. This fact is due to the fact that one of the spouses has not worked for a certain period of time due to raising children, has been unemployed or has been employed in the public sector. To compensate for this difference, there is pension equalization, which is intended to ensure that both spouses have good retirement security. However, only the pension that was earned during the marriage period is taken into account. The pension earned is divided up in the divorce in such a way that both spouses leave the marriage with the same amount.

Since only the pension entitlements that were acquired during the marriage are included in the pension rights adjustment, the marriage period is decisive for the amount of the adjustment. The marriage period runs from the beginning of the month in which the marriage was entered into until the end of the month preceding the service of the divorce petition. If the period of marriage is less than three years, no pension equalisation has to be carried out on divorce unless one of the spouses insists on it.

Pension entitlements acquired during the separation period are also included in the pension rights adjustment. However, if the separation period is unusually long, it may be justified under certain circumstances to calculate the pension equalisation only for the period from the marriage until the separation. No pension equalization can be approved by the court only in divorces involving special misconduct. This case is when one spouse has massively threatened or injured the other.

The pension rights adjustment regulates the pension entitlements of the spouses.
The period of marriage is decisive for the amount of pension equalisation

Pension entitlement – splitting the pension after divorce

At first glance, the pension equalization is fair for both parties, but in practice it shows only problems with which the spouses have to struggle. It becomes particularly problematic for married couples who only divorce at an advanced age. Where both partners together were well provided for in old age, they often find themselves with only two poor households after the divorce. If a divorce is finalized at a young age, both parties still have the opportunity to supplement their pensions as they continue to work, while older couples often face financial ruin. So instead of a schematic division, it can often be more beneficial for older couples if one party keeps the pension rights and exchanges them for other assets, such as a property. So the legislation here is not entirely optimal, as it does not offer everyone the same opportunities and can be particularly difficult for older couples by necessity.

The pension entitlement can also be regulated separately from the pension rights adjustment.
In certain cases, the pension rights are divided more fairly than in the case of pension rights adjustment.

Real estate in divorce – how to deal with joint assets

If two people enter into a marriage without a prenuptial agreement, they live in a community of accrued gains according to the law. A gain is defined as the amount by which the final assets of one spouse exceed the initial assets. So, during the marriage, the two assets remain separate and upon divorce, there is an equalization of the gain of the assets. Each spouse should therefore come out of the marriage with the same amount of accrued gains.

If only one of the spouses is registered in the land register as the owner of the property, the property belongs to this spouse alone even after the divorce. During the separation period, a court may also assign the property to the non-owner for use, but only if this spouse cannot find an affordable apartment for himself or herself and the joint children. However, this does not change the ownership of the property. However, a property also has financial consequences in the equalisation of gains.

A property that was bought, built or extended or modernised during the marriage represents an increase in value and is therefore relevant for the equalisation of gains. An inherited property or one that was already part of the property before the marriage only counts for the equalisation of gains if it was modernised or extended during the marriage. However, during the divorce, the property owner is not allowed to just do whatever they want with the property. If the divorce or the severed train profit equalization has not yet ended, the latter needs the ex-partner’s consent for the sale, for example.

If the property belongs to the spouses equally or also proportionately, it becomes difficult during the divorce, because the question of how to proceed with the joint property after the divorce is not always easy to answer. Who gets to live in the property, will it be sold or will it continue to be financed? This problem stems from the fact that the divorce does not also end co-ownership at the same time. Divorced spouses are therefore still jointly responsible for the property after the divorce.

How to deal with real estate after divorce depends on the land register entry
Depending on the entry, different procedures are applied to the assets

Alimony after divorce – the most important rules

Maintenance is only paid to those who are in need. This means not being able to support themselves from their own income and assets. However, the spouse in need must actively try to find a suitable gainful employment in order to claim maintenance. It is considered reasonable if it is commensurate with education, age, ability, and health conditions. If the spouse receiving maintenance moves in with a new partner, the claim to maintenance may lapse in accordance with § 1579 no. 2 BGB.

Maintenance is only paid by the person who is able to pay. This means being able to pay alimony without jeopardizing his or her own reasonable livelihood. The spouse paying alimony must therefore always have a deductible remaining. According to the Düsseldorfer Tabelle, the monthly personal requirement without personal requirement amounts to 1,200 euros.

The amount of post-marital maintenance is always determined equally by both spouses. First, the income relevant for maintenance is calculated. From the gross income, taxes, social security contributions, reasonable professional applications of a flat rate of 5% and actual expenses for retirement provisions of up to 23% of the gross income are deducted. If the spouse pays child support, this must also be deducted. Of this value, a lump sum of three sevenths, i.e. just under 43%, is deducted as post-marital maintenance if the other is not gainfully employed. However, the person obligated to pay maintenance must be allowed to keep a minimum amount of 1200 euros as a deductible.

The change of name after divorce – the options for spouses and joint children

In order for a surname change to take place after a divorce, the marriage must have been legally divorced. A final divorce is when there is no longer any right of appeal against the divorce decree. To ensure this, either both spouses must waive appeals at the divorce hearing or neither spouse must appeal the divorce decree through an attorney within one month. On the divorce decree, an affixed notation of res judicata is used by the court to document that the divorce is final. In order to obtain this, the divorce decree served after the divorce must be sent to the court again with the request for the note of res judicata. Only then is the document to be considered a legally valid divorce and usable for the name change.

The change of name can be carried out after the divorce at the respective competent registry office, as the family register is kept here. Some documents are required for this. On the one hand, the divorce decree with the final decree, an identity card or passport and, if necessary, a certified copy of the marriage register if the person concerned has moved after the marriage. If all these documents are available, the name change can be carried out directly on site. The registry office charges an amount of approx. 25 euros for the certification and authentication fee. In addition, there are costs for issuing or changing important documents, such as the identity card, passport, credit cards or driving licence.

The change of name is possible for the spouses after the arbitration without any problems
The change of the surname can be made at the registry office

FIV Magazine 🔥 More About