How the proceedings run

Every divorce begins with a Trennungsjahr (year of separation). If you both live apart for a year and both want the divorce, the law presumes that the marriage has broken down, § 1566 (1) BGB; after three years apart that presumption can no longer be rebutted, § 1566 (2) BGB.

Living apart does not mean living elsewhere. It works in the shared home as well, as long as you sleep separately, run separate households and no longer care for one another. The period is shortened only in cases of unreasonable hardship, § 1565 (2) BGB.

This year is still not a waiting period. Maintenance, joint accounts and the question of who stays in the property for now are things we settle now, not with the petition.

We talk first, by phone, by video or at our office in Frankfurt-Gallus, whichever is easier for you. Two questions carry this conversation. What do you want to have achieved at the end, and what worries you most? The strategy grows out of your answers.

Once the Trennungsjahr (year of separation) is over, we file the Scheidungsantrag (divorce petition) with the Familiengericht (family court) that has jurisdiction. § 122 FamFG sets a fixed order: first the place where one of you lives with your joint minor children, then your last shared home if one of you still lives there, and after that the home of the other spouse. Where you married makes no difference.

You cannot file the petition yourself, because representation by a lawyer is mandatory before the Familiengericht (family court), § 114 (1) FamFG. Where you agree, one representation in the proceedings is still enough, because the consenting side needs none of its own, § 114 (4) no. 3 FamFG.

What belongs in the petition is set out in § 133 FamFG; from then on we conduct the correspondence with the court entirely for you.

Shortly after receipt the court sends its invoice, and until this advance is paid it does not serve the petition, § 14 FamGKG.

That is not an administrative formality but the trigger for everything else. The payment determines when service happens, and service sets the cut-off date from the next step. Whoever leaves the invoice lying postpones their own divorce.

How high the advance turns out depends on the Verfahrenswert (value of the proceedings), which is determined above all by both spouses’ income and their assets.

Now the court formally serves the petition on the other side. With that service the proceedings become pending, and the same day becomes the cut-off date for pensions and assets.

For the Versorgungsausgleich (pension rights adjustment) the marital period ends on the last day of the month before service, § 3 (1) VersAusglG, so every month earlier or later decides which pension entitlements are shared at all.

In the Zugewinnausgleich (accrued gains) the same day works a second time. It fixes the final assets on both sides, § 1384 BGB. What you gain or lose after that no longer counts toward the claim.

While the petition runs, we settle what is to hold after the order. These ancillary matters often decide more about your future than the divorce itself.

Which ancillary matter joins the composite proceedings is decided by the court together with the divorce, § 137 FamFG. That is where the strongest lever on the duration lies. Whoever settles maintenance and assets beforehand by notarial deed keeps both out of the proceedings; whoever draws them in waits at the end for the last open question. In any case you can only raise an ancillary matter up to two weeks before the hearing, § 137 (2) FamFG.

Maintenance covers separation maintenance and post-marital maintenance. The post-marital kind follows the halving principle, with an employment bonus deducted first for each earning spouse, as a rule one tenth of the earned income; under the conditions of § 1578b BGB it can be limited in time or in amount.

In the statutory property regime of the Zugewinngemeinschaft (community of accrued gains), the Zugewinnausgleich (accrued gains) distributes assets, debts and property, § 1363 BGB. If the other side does not produce its figures, we demand disclosure under § 1379 BGB.

The Versorgungsausgleich (pension rights adjustment) divides the pension entitlements acquired during the marriage. It runs automatically as long as the marital period lasted longer than three years; at up to three years it happens only on application, § 3 (3) VersAusglG. Both of you fill in questionnaires for it, and the pension providers report the entitlements back. If you have children, parental responsibility, contact and child support under the Düsseldorfer Tabelle (Düsseldorf table) come on top, along with household goods and the housing situation.

Once all the statements are in, the court summons you both to the hearing and orders you to appear in person, because it has to hear you itself, § 128 FamFG.

The hearing is short nonetheless. You both appear, confirm that you want the divorce and that the Trennungsjahr (year of separation) has passed, and as a rule the court asks for no more.

Anyone who stays away without an excuse must expect a fine; the law rules out detention for the hearing. So staying away does not prevent a divorce, it only delays it. At the hearing we are at your side.

At the end the court pronounces the divorce and serves the order on both sides. After that an appeal period of one month runs, § 63 FamFG.

The divorce becomes final immediately if both sides waive appeal at the hearing. That waiver is a procedural act, however, and therefore requires representation by a lawyer on both sides, § 114 (1) FamFG. In the one-lawyer divorce the period therefore runs its course, unless the consenting side is represented for this one hearing.

With finality your marriage is over.