Procedure for divorce
Divorce is the definitive dissolution of a marriage. However, you can also choose to separate first as an initial, temporary step. We explain the differences and what arrangements must be made in each case.
What is a separation?
A separation is when spouses decide to live apart for a certain or indefinite period of time. This can either be decided jointly or at the request of one spouse. Reasons for separation include when cohabitation becomes a risk to the person of a spouse, the economic security of a spouse is no longer ensured, or the welfare of the family is at risk.
What is the difference to divorce?
Divorce is the definitive dissolution of a marriage and must always be carried out in court. Both separation and divorce can be at the mutual agreement of both spouses. Unlike divorce, separation can be arranged through an out-of-court agreement. A divorce against the will of one spouse can generally only occur after two years of separation, unless it is unreasonable to live in separation for another two years. This requires serious grounds, such as if a spouse intended to fraudulently obtain a residence permit through the marriage or if a spouse would be severely physically or psychologically affected.
What arrangements need to be made in the case of separation?
The following points must be clarified:
- Who stays in the house/apartment? Usually, the family’s place of residence is assigned to the person who is primarily responsible for caring for the children.
- Who will the children live with? This refers to the actual care relationship, not custody, which governs decision-making authority. Custody is only decided during divorce proceedings.
- Visitation rights: This refers to when and how often the child is in the care of the parent who does not have custody.
- Support payments: This clarifies the amount of child support and alimony.
- Tax assessment: From the time of the separation, a separate tax assessment can be requested.
How should this ideally be handled?
A written separation agreement helps to reliably clarify the agreed points and does not have to be confirmed by a court. Below, we have provided a separation agreement with helpful information for download. If the spouses cannot reach an agreement, the court must determine the separation arrangements.
How long does a separation last?
The separation can be rescinded at any time and without a court order if both spouses wish to move back in together. Only the court-ordered separation of property must be lifted by the court.
Unfortunately, the separation phase did not result in any improvement. How can we get a divorce?
Divorce is the definitive dissolution of a marriage and must be carried out in court. If the spouses are in agreement that they want to divorce, then they can file for divorce together. If they agree on the consequences, they can submit a divorce agreement or divorce settlement, which is then reviewed by the court. Otherwise, the court will decide on the divorce arrangements.
What applies if only one of the spouses wants to file for divorce?
In this case, the person who wishes to file must petition for divorce. Then the divorce can only be filed after an uninterrupted separation period of two years (see above).
What must be specified in the abovementioned divorce settlement?
In general, the settlement must define similar points to a separation agreement. However, instead of for a specified period of time (separation), it does so definitively. The following points must be set down in writing:
- Custody of the children: In general, joint custody is granted to both parents. Only in exceptional cases is sole custody granted to one parent.
- Post-marital alimony: If a spouse cannot provide for their own maintenance and retirement provision after the divorce, then the other spouse may be obligated to pay alimony.
- Child support Child support is to be paid until the child reaches the age of majority or completes their initial schooling.
- Pension benefits settlement: If a spouse was unable to accumulate pension savings due to the distribution of tasks in the marriage, the other spouse is obligated to compensate for this.
- Assignment of the family’s apartment/house: As with a separation, it must be decided who stays in the family’s place of residence. The place of residence is where the family has their main residence. Usually, the parent who is primarily responsible for caring for the children stays in the family’s apartment/house.
- Matrimonial property law: Depending on how the spouses shared their assets during the marriage, there are also various ways to address the separation of assets in the event of a divorce. If nothing specific was agreed, then the income is shared equally and the inheritance or property that the spouses owned prior to the marriage will stay with the corresponding spouse.
Here, you will find our fact sheet with additional information as well as a checklist and a sample divorce settlement.