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Separation
Still undecided: what a first consultation does and does not start
“I don’t know yet whether I really want this.” A large share of the conversations we have begins with that sentence. It is a good beginning, because you can take advice long before you have decided. What that sets in motion and what it does not can be said precisely.
Karcher Rechtsanwälte in Frankfurt am Main, Germany, focusing on uncontested divorce and international family law. Advice in German, English and Spanish.
Part of our guide How does a divorce work?A conversation is not yet a decision
A consultation triggers nothing in law. It starts no (year of separation), it files no application with the court, and your spouse learns nothing of it. An instruction comes into being when you give it, proceedings only with the application.
Confidentiality applies from the first sentence all the same. It does not depend on whether the meeting turns into an instruction § 43a Abs. 2 BRAO. Anyone who takes advice and then does nothing for six months leaves no trace anywhere: no file at the court, no notice to the tax office, no entry in a register.
The most common question in a first consultation is whether the spouse hears about the meeting. They do not. A letter to the other side goes out once you instruct us to send it, and until then the conversation stays between you and us.
The costs do not grow with your questions either. What the first conversation costs we agree with you before you come § 34 Abs. 1 RVG. The amount is fixed from then on and grows neither with the length of the conversation nor with the difficulty of your case.
The conversation does have one effect
After a first consultation we may no longer advise the other side in the same matter. The bar on acting in conflicting interests takes hold with the first piece of advice § 43a Abs. 4 BRAO. Whoever has been with us has closed this firm to their spouse.
In an that is more than a formality. Only one attorney is needed there, and whoever came first has them. The other is left with the choice of paying for advice elsewhere or going through the proceedings without representation. If the two of you have already talked about going to one firm together, tell us on the first phone call. We then settle beforehand who gives the instruction and what that means for the other.
What actually starts the clock
The Trennungsjahr begins with the actual separation, that is, when the shared household ends and at least one of you no longer wants to restore it § 1567 BGB. No authority records that day, and no attorney sets it.
Moving out is not required for it. Living apart is possible inside the same flat, as long as you keep separate finances, sleep separately and no longer run errands for each other. The second question in a first consultation is therefore almost always the one about moving out, because many believe that whoever leaves first loses the home. For the Trennungsjahr that is wrong, and for the home itself other things count, such as the tenancy and who looks after the children. What else takes effect at once is in separation before the divorce: what applies at once.
While you are weighing it up, then, no deadline runs against you. Someone who comes to a first consultation in March and moves out in September started their Trennungsjahr in September.
What can still be taken back
Almost everything at the beginning is reversible. An attempt at reconciliation does not interrupt the periods of the Trennungsjahr, as long as it does not turn into permanent cohabitation § 1567 Abs. 2 BGB. You can live apart for six months, move back in together and stand no worse off at a later separation.
Even the divorce application is not a final commitment. It can be withdrawn as long as the decision has not become final § 113 Abs. 1 FamFG together with § 269 ZPO. Your spouse has to consent only where they have filed an application of their own or argued the case at the hearing. Consent to the divorce is not enough for that, and someone who gives it without a lawyer of their own cannot hold up the withdrawal anyway.
The point where waiting costs money
With maintenance, hesitating is expensive. Retroactively it exists only from the month in which you demanded it or asked for disclosure of income and assets § 1613 Abs. 1 BGB. Between spouses that follows from the cross-reference in § 1361 Abs. 4 BGB. For the months before, it stays at zero, even where the claim existed on the merits all along.
Thinking it over is free almost everywhere. The exception is maintenance, which retroactively exists only from the moment it is demanded.
Two further cut-off dates hang on service of the divorce application and therefore lie at the end of the road anyway. For the (equalization of accrued gains) the assets are calculated as at the day of service § 1384 BGB. The marital period for the (pension rights adjustment) ends on the last day of the month before § 3 Abs. 1 VersAusglG. Anyone still weighing things up pushes both dates back. Whether that helps or hurts you depends on whose assets and whose grow in that time.
What you take away without deciding
A first consultation ends with four answers, none of which presupposes a decision.
- Whether your situation can be settled by agreement or whether you have to reckon with contested proceedings. Almost everything else hangs on that, from the duration to the costs.
- A rough figure for maintenance, in the direction in which it would flow. If you want to do the sums yourself, the spousal maintenance calculator gets you to a ballpark.
- A span of time. The Trennungsjahr and the proceedings run one after the other, and for the proceedings themselves four to six months are the normal case, as set out in how long does a divorce take?.
- The documents you are missing. For the Versorgungsausgleich the pension statement is the longest single item, and it can be requested long before anything is decided.
When we are the wrong people
Sometimes the honest answer is that you do not need us right now. Anyone who wants to know whether the marriage can be saved gets further with couples or family counseling than with an attorney; we advise on the law and not on the relationship.
Where the separation is settled and only the route is open, mediation is one way that does without a commitment in court: mediation in separation and divorce: when it carries describes what it is good for and where it reaches its limits.
What you can do now
Record the day you separated, if it comes to that. An entry in a calendar or a clear message to your spouse is enough, and it spares you the later argument about when the year began.
Get an overview of income, accounts and liabilities while the two of you are still talking. Disclosure can be enforced later, but that takes time and costs money.
Sign nothing you have not understood. An agreement on maintenance, assets or the home is no formality, and what sounds reasonable at the kitchen table has effect for years.
If you are still undecided afterwards, that is a result too. We set out what your situation means in law, what it costs and how long it takes; deciding is not something you have to do that day. Appointments take place at Frankenallee in Frankfurt-Gallus or by video. Where the decision has been made, our guide how does a divorce work? describes what comes next.
Attorney at law · focus on family law
Admitted since 2010, more than fifteen years of experience in advising and representation. The contact for new instructions at Karcher Rechtsanwälte in Frankfurt-Gallus.
Legal notice: This article is provided for general information and does not replace legal advice in an individual case. Any laws, deadlines and amounts mentioned reflect the state of affairs at the time of publication and may change. A binding assessment requires a personal consultation.