The Divorce Process
Divorce proceedings mark the legal dissolution of a marriage and simultaneously regulate the far-reaching consequences for the period following separation. In Germany, legal representation by a solicitor is mandatory for the petitioner, which underscores the necessity of sound legal guidance.
DR. SCHMIDT LEGAL guides clients safely through the process, from filing the divorce petition to the final decree, ensuring that both personal and financial interests are protected.
The Year of Separation (Trennungsjahr)
Pursuant to Section 1565 BGB, the fundamental requirement for a divorce is the irretrievable breakdown of the marriage. This is irrebuttably presumed after the expiry of one year of separation, provided both spouses consent to the divorce (Section 1566 (1) BGB). The necessary separation requires the dissolution of the domestic community ("separation of bed and board"), which, under strict conditions, is also possible within the shared matrimonial home. A divorce before the end of the separation year is only possible in extreme cases of hardship.
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DR. SCHMIDT LEGAL advises you during this phase on the legally secure documentation of the date of separation. This is essential, as the date of separation determines the earliest possible time for the divorce petition. Only upon the judicial service of this petition are the final cut-off dates for the equalisation of assets and pensions fixed. Precise documentation is also indispensable for asserting claims for information and safeguarding assets against bad-faith transfers.
Pension Equalisation and Joined Matters
As part of the divorce proceedings, the Family Court carries out the Pension Equalisation (Versorgungsausgleich) ex officio (automatically). In this process, pension entitlements acquired during the marriage are divided equally between the partners to ensure fair retirement provision for both sides. Other matters, such as post-divorce maintenance, the equalisation of accrued gains, or issues regarding custody and access, are handled as "joined matters" (Folgesachen) in conjunction with the divorce, provided a corresponding application is filed.
Options for Uncontested Divorce
An uncontested divorce can significantly accelerate the process and reduce costs. If the spouses agree in advance on the essential consequences of the divorce – such as the distribution of household goods, the use of the matrimonial home, and maintenance claims – the judicial effort is reduced to a minimum. In such cases, it is often sufficient for only one spouse to be represented by a solicitor, while the other consents to the divorce.
Strategic Litigation in Contentious Proceedings
Should a consensus on joined matters not be possible, DR. SCHMIDT LEGAL represents the interests of clients in contested proceedings. This often involves the complex determination of initial and final assets for the equalisation of accrued gains or the detailed calculation of need and ability to pay regarding maintenance.
Division of Assets during Divorce
The division of assets is one of the most complex areas of family law. Contrary to widespread assumptions, marriage in German law does not automatically mean that all assets become joint property. Rather, the assets remain separate unless a different matrimonial property regime was expressly agreed upon.
Equalisation of Accrued Gains (Zugewinnaus-gleich)
Unless a marriage contract was concluded, spouses live in the statutory regime of Community of Accrued Gains. Upon divorce, an equalisation takes place. For each partner, it is determined by how much their assets increased between the date of the wedding (initial assets) and the date the divorce petition was served (final assets). The difference between the higher gain of one partner and the lower gain of the other is equalised by half. DR. SCHMIDT LEGAL places particular emphasis on the correct recording of all items, including liabilities, life insurance, and tangible assets.
Specifics regarding Real Estate and Business Assets
Dividing real estate or business interests presents a particular challenge as these values cannot be easily split. Often, a property is the most valuable item in the accrued gains, which can lead to significant liquidity bottlenecks. We examine how increases in value – for instance, due to market development or renovations – are factored in and to what extent gifts or inheritances reduce the amount subject to equalisation.
Treatment of Inheritances and Gifts
A common misunderstanding concerns inheritances or gifts received during the marriage from third parties (e.g., parents). These assets are legally attributed to the initial assets and thus generally do not participate in the equalisation of accrued gains. Only the increase in value experienced by these assets between the time of acquisition and the end of the marriage is subject to equalisation.
Out-of-Court Solutions through Divorce Settlement Agreements
To avoid protracted and costly court proceedings over every single pound, entering into a Divorce Settlement Agreement is often the most sensible approach. In such an agreement, spouses can individually regulate the equalisation of accrued gains (matrimonial property), agree on lump-sum payments, or exclude specific assets entirely. This offers the advantage of ensuring that the transfer of assets is both tax-optimised and handled with minimal emotional strain.
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DR. SCHMIDT LEGAL supports clients during these negotiations and drafts legally sound contracts that facilitate a clear financial separation and a secure fresh start.
Pension Equalisation (Versorgungsaus-gleich)
Pension equalisation ensures the fair division of retirement entitlements acquired during the marriage. As career paths often differ due to childcare or part-time employment, this instrument ensures that both partners leave the marriage with independent retirement provision.
The Principle of Internal and External Division
The principle is that every entitlement acquired during the marriage is divided equally.
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Internal Division: A separate account is set up for the entitled partner with the other partner's respective pension provider.
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External Division: In certain cases, particularly with occupational pensions or small values, the capital value may be transferred to a different pension provider. DR. SCHMIDT LEGAL reviews the information submitted by pension providers for accuracy and completeness.
Exclusion and Modification
Spouses have the option to contractually modify or entirely exclude pension equalisation. Such an exclusion is often useful in marriage contracts or divorce settlement agreements if both partners have approximately equal entitlements or if retirement is already secured through other assets, such as real estate.
Short Marriages and De Minimis Limits
For a marriage duration of up to three years, pension equalisation only takes place if one of the spouses expressly applies for it. Furthermore, entitlements with a low equalisation value may be excluded by the court to avoid the fragmentation of pension claims.
Strategic Consultancy and Judicial Review
The complexity of the pension rights equalisation often only becomes apparent when valuing entitlements from professional pension schemes or accrued rights held abroad. This requires precise legal categorisation to ensure that all contributions made during the marriage are correctly weighted.
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DR. SCHMIDT LEGAL represents clients in court hearings and reviews the final calculations made by the Family Court within the divorce decree. Should disadvantages arise due to subsequent changes in legislation or incorrect information provided by pension providers, the firm also assesses the possibilities for a modification of legally binding pension decisions.