Separation before the divorce: what applies at once

When you are living apart in law

“Separated” is a legal state with clear conditions, regardless of how those involved feel about it. You are living apart where there is no longer a domestic community between you and at least one spouse is recognizably no longer willing to restore it (§ 1567 BGB).

What matters is this: that does not presuppose moving out. A separation is possible within the same apartment as well, the so-called “separation from bed and board”. What counts is that you genuinely keep separate spheres of life. That shows in the following:

• Separate sleeping and living areas.
• No shared economy: shopping separately, cooking separately, separate finances.
• No more services for one another, for instance washing or cooking for the other.

Why the moment of separation counts

With the separation the Trennungsjahr (year of separation) begins, and that year is the central condition for the divorce (§ 1566 BGB). After a Trennungsjahr (year of separation), the law conclusively presumes that the marriage has failed if you both want the divorce. When exactly the year begins, how you record the moment of separation and from when the Scheidungsantrag (divorce application) is possible at the earliest we set out in detail in the article on the year of separation.

Maintenance from the day of the separation

With the separation the shared housekeeping ends, but the economic responsibility for one another continues. The economically weaker spouse can demand separation maintenance from the separation onwards (§ 1361 BGB).

This separation maintenance is to be distinguished clearly from post-marital maintenance: it applies only to the time between the separation and the divorce becoming final. Whether a claim exists and how high it turns out depends above all on the income position of both sides. A calculation in the individual case clarifies that reliably. More on this on our page on separation & maintenance.

The home and household goods during the separation

As long as you are not yet divorced, rules of their own for the period of separation apply to the shared home and the household goods.

The use of the matrimonial home can be settled under § 1361b BGB. A court can allocate the home to one spouse alone for the period of separation, for instance where that is necessary to avoid unreasonable hardship; a practically important case is protection from violence.

The division of the household goods for the duration of the separation follows § 1361a BGB. Here it is at first only about a provisional, fair distribution of the objects, not about the final settlement of assets. What happens with a shared property we deal with separately in the article on the property on separation.

Putting tax and finances in order in good time

Financially, too, the separation changes a number of things, some at once, some with a lead time.

In tax terms: for the year of the separation joint assessment is as a rule still possible. Only from the year following the separation does a change of tax class become necessary, because assessment is then separate. The specific tax consequences depend on the individual case; an overview of assessment, tax class and the Realsplitting scheme is given by tax after the separation.

In practical terms you should gain an overview early:

• Check joint accounts and any powers of attorney granted.
• Secure and copy bank statements and important documents.
• Keep in mind: joint loans and liabilities remain in place at first, regardless of who moves out: who is liable for what.

An orderly collection of documents makes every further step considerably easier.

What stays the same for the children

For shared children the separation changes less than many fear: joint Sorgerecht (custody) does not end with the separation. Sorgerecht (Custody) and contact continue.

What changes is everyday life: where the children live, how contact with the other parent is arranged. These practical questions can often be settled by agreement; the legal framework for that is described by custody & contact rights.

What comes next

Time-critical above all is maintenance: retroactively it exists only from the first day of the month in which you demanded it or called for disclosure. Where you live together in a property, use, the loan and the housing advantage come on top; our page on matrimonial home, property & household goods describes the framework.

Much of what has to be settled in the Trennungsjahr (year of separation) can be sorted out in one conversation, and anyone who uses these months ends up with a finished application rather than a dispute. Appointments take place at Frankenallee in Frankfurt-Gallus or by video, in German, English or Spanish as you prefer.