Divorce settlement agreement

An agreement of this kind is usually concluded during the separation or before the divorce becomes final. It is a tool of order, not an admission that there is a dispute; the einvernehmliche Scheidung (uncontested divorce) in particular lives on it.

Practically everything the divorce brings with it can be settled. That includes separation maintenance and post-marital maintenance, the division of assets and Zugewinnausgleich (accrued gains), and the Versorgungsausgleich (pension rights adjustment). Alongside them come the marital home, the property and the household goods, and arrangements on parental responsibility and contact.

The value of a good agreement lies in thinking these points together instead of working through them one after the other. Anyone trading the Versorgungsausgleich (pension rights adjustment) against the property has to be able to value both sides. Otherwise an exchange is agreed whose ratio nobody has examined.

This is where agreements fail in practice. An agreement is only as good as its weakest clause. Where the prescribed form is missing, it is void (§ 125 BGB), and family law knows no cure for that at this point.

Parents cannot waive their child’s maintenance at the child’s expense. The claim belongs to the child and not to them. Nor can it be offset against contact: whoever does not pay does not lose contact with the child, and whoever refuses contact does not save on maintenance.

Joint parental responsibility does not end with the divorce. Sole parental responsibility is only granted on application and, against the other parent’s will, only if it serves the child best (§ 1671 BGB). The parent the child lives with handles everyday matters. Both parents only decide together on questions of considerable importance, such as place of residence and school (§ 1687 BGB).

Both parents must protect the child’s bond with the other parent instead of undermining it; the law calls this the duty of loyalty (§ 1684 (2) BGB). Contact is only restricted if the child’s welfare requires it, for example as supervised contact.

Arrangements on parental responsibility and contact do not bind the court in any case. They are an important basis, but they do not replace the review of the child’s welfare. Writing them down still gains you something: two parents who agreed beforehand stick with an arrangement in everyday life longer than with one imposed on them.

Not everything two people agree on holds up in court. Even a validly notarized agreement is examined by the court on two levels: for immoral content at the time it was concluded (§ 138 BGB), and for bad faith where one side later relies on it (§ 242 BGB).

In practice that means a one-sided total waiver can be set aside, particularly on maintenance for childcare and on the Versorgungsausgleich (pension rights adjustment), because both lie close to the protected core. The Zugewinnausgleich (accrued gains) remain the most freely negotiable.

It begins with taking stock. What is there to settle at all: maintenance, assets, pensions, the home, the children? Then comes the negotiating and the weighing up, with the points thought of as a package and any exchange wanting to be fairly balanced.

Before the signature we check the form of every clause, so that none of them is void. Then follows the notarization, or a settlement recorded by the court. At the end there is a title that can be enforced without fresh proceedings.

The effort deliberately lies at the beginning. An agreement that holds from the outset does not have to be repaired later, and a wrong form or an ineffective waiver tears the whole package open again at the end. Where a workable agreement is not possible, we say so, rather than build one that is set aside later.

If circumstances change later, you can adjust the agreement together at any time. Before the divorce is final, a change to maintenance, the Zugewinnausgleich (accrued gains) or the Versorgungsausgleich (pension rights adjustment) again requires the notary or the court record. One side alone can only do so where the law provides for a modification, for maintenance for example after a significant change in circumstances. Adjustment clauses therefore belong in the first draft.

As soon as property or business assets are in the package, Dietrich Karcher takes on the valuation side. With an exchange that is exactly where the difference lies: whether waiving the Versorgungsausgleich (pension rights adjustment) is worth taking on the house is not a question of negotiating skill but a question of arithmetic.

60 minutes, at our office or by Zoom. You find out which consequences there are to settle in your case, and in which form. You are under no obligation to hire us afterwards.