Divorce in Germany: How does it work?

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Divorce in Germany – this is how the marriage ends

Divorce in Germany: How does a divorce work? How can conflicts be avoided? What happens to the joint property and the children? Inform yourself now!

Divorce in Germany

Divorce in Germany: When can a marriage be dissolved in Germany?

A marriage can only be dissolved if it has failed. In order for the marriage to have failed and a divorce to be possible, the following conditions must be met:

  • Real coexistence no longer takes place
  • At least one partner declares that they do not want to continue the marriage
  • At least one spouse files for divorce
  • The couple have lived apart for at least a year

Which court has jurisdiction over my divorce in Germany?

  • Are there any minor children from the marriage? Then the court where the spouse lives with the children has jurisdiction.
  • If there are no minor children, the court in whose district the spouses last lived together has jurisdiction, if one of the spouses still lives in that place.
  • If there are no children and neither spouse lives in the place where they last lived together, the court where the spouse lives to whom the application for divorce is to be served has jurisdiction.
  • If both spouses do not reside in Germany, the District Court of Berlin-Schoeneberg is responsible.

Filing for Divorce in Germany: The Process

Every divorce is different. Therefore, experts distinguish:

  • Mutual divorce after a year of separation
  • Divorce without agreement after a year of separation
  • Divorce after more than three years of separation

In the case of an amicable divorce after observing the statutory separation year, you have already clarified all questions and at best you can get by with a lawyer. If you do not agree, it makes sense for the lawyers to try to reach an agreement. If this is not possible because one of the partners is unreasonable, the judge decides. As parents, you also have to settle all questions about the children. This includes the following points:

  • Joint custody (common)
  • Right to determine residence (where do the children live?)
  • amount of maintenance
  • visiting rights

The more factual the tone between the parents, the better for the children. It is optimal if both continue to share the care in everyday life. This includes, for example, picking them up after school or taking part in parents’ evenings and events together.

Divorce in Germany

Frequently asked questions on divorce in Germany

I want a divorce – do I need my spouse’s consent?

No! In principle, the family court in Germany does not require the consent of the husband or wife for the divorce.

Also, no signatures have to be provided in front of the family court, as is still the case with marriages in front of the registry office. As part of the divorce proceedings, it is the task of the court to check whether the marriage has actually failed.

A marriage has failed in particular if you have been separated for more than a year and both want to get divorced. If a spouse still does not want to be divorced after the end of the year of separation, the court can still divorce the marriage, i.e. without the consent of the spouse who does not want to divorce. Namely, when the court is convinced that the marriage has actually failed.

Marriage failure is always suspected, for example, if one of the spouses has a new partner. In the certainly rare case that, after the end of the year of separation, there are still no sufficient reasons for the breakdown of the marriage, the marriage can only be divorced after a separation period of three years. After three years, the family court always assumes that

How long does a divorce/divorce proceeding in Germany take?

According to the new legal regulation, it is now possible to complete the pure divorce proceedings after just three months. If the pension equalization is excluded, a divorce is even possible after a few weeks.

Do I even need a divorce lawyer in Germany?

Yes, in Germany you need a lawyer to apply for divorce at the family court. In the case of an amicable divorce, however, it is not necessary for each spouse to appoint their own lawyer. Your divorce lawyer can theoretically be any lawyer licensed in the Federal Republic of Germany and does not necessarily have to be a specialist lawyer for family law.

What applies to international divorces or divorces with a foreign element?

Divorces with a connection abroad must be advised individually, since special EU regulations or international regulations apply here and it must be clarified in each individual case which law applies.

What can a divorce cost in Germany?

When calculating the costs of the divorce, the net monthly income of both partners over three months is taken into account and any child support that may have to be paid is deducted. Usually a deduction of 250 euros is made per child. Added to this is the value of the pension equalization. Here ten percent of the net income in three months is multiplied by the number of pension entitlements. However, the value is set at at least 1000 euros. Other assets – such as an existing property – are included to a certain percentage. The court and attorney’s fees result from the procedural value calculated in this way.

Monthly Net Income HusbandMonthly net Income wifepension equalizationDivorce costs for a lawyer and the court
Approx. 1,000 euros (Hartz-4)approx. 300 euros (Hartz-4)2 entitlements1,339.45 euros
Approx. 3,000 eurosApprox. 2,500 euros4 entitlements3,445.95 euros

In addition to the pension equalization, the following may be included:

  • housing costs
  • division of household goods
  • equalization of gains

The procedural value is determined before the hearing. According to the legal regulation, each spouse bears the costs of his lawyer himself, the court costs are shared equally.

A divorce is associated with one-off costs and an additional financial burden in the long term. One-time costs of a divorce include:

  • legal fees
  • court costs

Attorney and court costs are calculated from the procedural value. Upon application, legal aid will be granted if the personal and financial circumstances are not sufficient to cover the costs of the procedure or the lawyer. Depending on the financial situation, all costs or a proportion of expenses are then taken over. Payment in installments up to 48 months is also possible.

The prerequisite is that the person concerned earns too little income during the divorce and in the four years thereafter. Conversely, a deterioration in income is also a reason to reduce or completely cancel the installments. The “income to be used” is calculated from the monthly income after deduction of all obligations and the tax exemptions newly determined annually by the Federal Ministry of Justice. The allowances generally apply nationwide, unless a higher rate applies locally.

A basic allowance of 494 euros has been in effect since January 1, 2022. There is also an allowance of 225 euros for employed persons. The allowance per child is:

  • 396 euros (of legal age)
  • 414 euros (15 – 18)
  • 342 euros (7 – 14)
  • 314 euros (up to 6 years)

Higher allowances currently only apply in the districts of Fürstenfeldbruck, Starnberg and Munich as well as in the city of Munich.

In addition, the housing and living conditions must be appropriate to the income. Anyone who owns assets can be forced to sell them.

Divorce in Germany

Post Divorce Costs in Germany

Post-divorce costs can be lifelong or over a limited period of time. The following costs are associated with a separation and subsequent divorce:

  • separation alimony
  • Post-Spousal Alimony
  • child support

In the case of maintenance costs, deadlines can be recommended by which the maintenance may be checked again. The maintenance creditor must prove, if requested by the payer, that the right to maintenance continues.

ALSO READ: Düsseldorf Table: How much is child support after a divorce in Germany in 2022?

What should not be overlooked in a divorce

Clarify before the divorce:

  • house sale
  • health insurance
  • testament
  • care

You don’t have to sell the house before the divorce, but you should agree on how to proceed. Inform the health insurance company about the divorce so that an adjustment can be made. This applies in particular to privately insured persons and their children. If possible, the children should be insured through the person with whom they live. Also correct your will if you no longer want your partner to be the main heir. Regarding custody, a judicial decision is not necessary if you already agree.

Advantage: The pension equalization after divorce

Pension entitlements for spouses often differ, especially if only one of the partners has income. With the pension equalization, the different pension entitlements are to be balanced. This also applies to pensions from insurance companies if they are paid out with an annuity or lump-sum option. These are investments that are not paid out with a one-off payment, but in the form of a monthly pension.

The most common reasons for divorce in Germany? Adultery, debt, stress, alcohol and drug abuse, and spousal violence, but also general drifting apart.

Is divorce common in Germany?

Divorce rate in Germany 2020

In 2020, the divorce rate of marriages in Germany was around 38.5 percent. This means that there was about one divorce for every three marriages. The divorce rate relates the number of marriages to the number of divorces in the same observation period. The divorce rate – also known as the divorce rate – does not provide any information about the “divorce risk” of a specific marriage cohort, since the divorces do not relate to a marriage year.

How long are Germans married on average?

About 150,000 couples divorce each year. In the past ten years, the average length of marriage has increased slightly, the last time the marriage was around 14.8 years. Many couples separated in 2020 with marriages lasting five to seven years , but most divorces have been completed by couples who have been married to each other for over 26 years.

Can a divorce be done without a lawyer?

A lawyer is required for a divorce. However, two lawyers do not have to represent you. If the spouses agree, a lawyer is sufficient, who is then hired by the spouse applying for the divorce. This lawyer can speak to both spouses and finally present their agreement in court. However, he is the lawyer of the person who commissioned him and, in case of doubt, will also preferentially represent his interests. Therefore, this approach only makes sense if there is absolute agreement on the agreements before and after the divorce. What the lawyer is important for in a divorce:

  • Research and calculation of follow-up matters
  • mediator between the parties
  • Forward-looking clarification with legal certainty for everyone

Divorce is also not possible without a court. The hearing before the district court is mandatory according to Section 1564 of the Civil Code.

Divorce in Germany

Mediation: Divorce as fair as possible

If a marriage has failed, factual communication can be difficult. If two lawyers are also commissioned, the experts represent the interests of their clients, but can also exacerbate the conflicts. The main thing is that your own client suffers as few disadvantages as possible. The fact that the two of them may have to get along later plays less of a role. 

▶︎ The mediator tries to avoid this: Spouses are encouraged to reach agreements and agree on compromises.

The German tax bracket in the event of a divorce

The prerequisite for a divorce is the so-called separation year. Only then can a marriage be divorced. But does the pure separation have an effect on the tax class?

General

The employee should know that a joint assessment of income tax is still possible in the year of separation. It is enough if you only lived together for a few weeks in the said tax year. From the following year, the spouses must then be assessed separately.

Example:
Separation on 07/30/2021, change tax class from 01/01/2022
Separation on 01/07/2021, change tax class from 01/01/2022

The key date is 12/31 of the year in which the spouses separated (not divorced!)!

Tax change in the year of separation

There are cases where it makes sense to change the tax class during the separation year.

Example:
The spouses have tax brackets 3 and 5.
While living together, the noticeable financial differences were compensated for by living together. After the separation, however, this disappears. The spouse with tax class 5 has to accept large financial losses.

Here it is advisable to change the tax class at an early stage; Both then have tax class 1 or who has the children at home tax class 2.

However, this regulation is disadvantageous for the former tax class 3 owner, so that there are often disputes. The affected spouse can refuse to consent to the change, but not without consequence: the spouse must then compensate for the tax burden that the other partner incurs as a result of the refusal for the remainder of the year of separation.

Reconciliation in the year of separation

Reconciliation during the year of separation is not uncommon. So that the tax class change does not have to be carried out, this reconciliation must last longer than three months. This must be documented and the tax office must be informed.

What happens if a partner opposes the joint investment?

In principle, the spouses are obliged to agree to a joint assessment in the year of separation so that the spouse who paid the higher taxes does not suffer any financial disadvantages.

If the spouse with the tax class that is more favorable for him does not do this, the suspicion quickly arises that the other spouse is being harmed. Accordingly, the spouse can be obliged to pay damages to the spouse with the worse tax class, which he receives through the refusal.

However, the spouse who requests the joint assessment must undertake to exempt the other partner from any tax disadvantages that may arise as a result.

Are both spouses entitled to the tax refund?

In the year of separation, the spouse who paid the excess taxes is entitled to a refund. So it depends on whether both spouses were employed and what their income was.

If one of the partners has not carried out any taxable activity, he is also not entitled to the tax refund. Of course, he can – ideally before signing the joint tax return – agree with the separated partner on receiving a certain share of the tax refund.

What happens to taxes and allowances? / Spouse splitting?

If the spouses do not live permanently separated, they can usually take advantage of the so-called spouse splitting and be taxed together. A tax class change only takes place at the beginning of the following year after the spouses have separated.

▶︎ The splitting benefits can therefore still be claimed in the year of separation. In the case of a maintenance obligation, all tax allowances or benefits must actually be claimed. Failure to do so will result in maintenance being treated as if the benefits had been claimed.

Tax refunds are credited as income for maintenance purposes in the year in which the refund was made.
Expenses for the implementation of the divorce proceedings can be taken into account as extraordinary tax burdens.

Residence permit after divorce in Germany

What happens to the residence permit after separation / divorce from the spouse? Many foreigners have their residence permit because they are married. In the event of a separation, the residence permit is at risk. If you have been married for more than 3 years, you are on the safe side: your residence permit will then be extended for at least one year. 

▶︎ If the marriage lasted less than 3 years, the residence may be terminated: either the residence permit is not extended or the existing residence permit is revoked. This article explains in which cases this is possible and how you can defend yourself against it.

When do I keep the residence permit after separation from my spouse?

If the foreigner has been married in Germany for at least 3 years (with a residence permit), the residence permit will be extended. If the separation took place before the end of 3 years, no independent right of residence has arisen. The residence permit will then not be extended.

When do I lose my residence permit after separating from my spouse?

If the separation took place before the end of 3 years of marriage, the residence permit will be shortened . This is important, for example: If the residence permit is still valid for a year after the separation, this year is usually not waited for. On the contrary: the immigration authorities shorten the duration of the residence permit. This is equivalent to losing your residence permit.

Important: Legal action can be taken against this shortening of the residence permit. If the foreigner earns enough money (at least €900 net), it can usually be enforced by means of a lawsuit that he can stay in Germany for the duration of the lawsuit.

Expaturm
Expaturmhttps://www.expaturm.com/
Expaturm aims to help educate Expats in Germany on key issues that they will have to deal with while living in Germany by providing everything you need to know about Banking, Healthcare, Lifestyle, and Housing in Germany

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