Frequently asked questions and legal errors in family law

Family law is relevant in almost all situations in a marriage and is only limited to the mere separation or divorce. When the common life ends, many questions usually arise.

There are also many popular legal errors circulating about separation / divorce and its consequences.

1. “If I don’t agree, you can’t divorce me at all! “

Mistake! The divorce of the marriage does not only depend on whether the other spouse agrees, but on whether the necessary requirements are met, in particular whether the marriage is broken. This is assumed when both spouses apply for divorce or the other partner agrees to the divorce and the year of separation has passed. If the partner does not want the divorce, the divorce can still take place when the year of separation has expired. After a separation period of three years, it doesn’t even matter what the partner wants, because then the law assumes the breakdown of the marriage. Incidentally, under certain strict conditions, it is also possible that the marriage can be divorced before the end of the year of separation. This is the case if the continuation of the marriage would represent a case of hardship for those willing to divorce, which can be the case, for example, in cases of abuse.

2. “Short marriages can easily be canceled!”

A marriage cannot be annulled even if the spouses separate again after a very short time. In this case, too, you have to wait until the year of separation.

3. “We have to live in separate households for a year!”

In the year of separation, it is often assumed that the spouses must live in separate households for a year before the divorce. However, it is also sufficient that these have managed separately in a household and lived separately from “table and bed”, so to speak. However, this should also be possible in a purely practical manner and would have to be proven in the event of a dispute.

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4. “A lawyer can represent both spouses!”

Another popular misconception is that both spouses can be represented by a lawyer together. This is not possible! It is true, however, that one lawyer can be enough for a divorce. Due to the legal compulsory lawyer, the divorce petition must be filed by a lawyer. However, this may never represent both spouses. However, if the other spouse only wants to agree to the divorce, he does not need his own lawyer, so that the proceedings can be conducted with a lawyer (who only represents one of the two spouses).

5. “In the event of a divorce, the court always regulates everything automatically!”

Not correct! With the divorce, the court initially only regulates the pension equalization, i.e. the equalization of the pension entitlements earned during the marriage. The court only regulates further questions if a corresponding application is made by one of the spouses. These can be, for example, maintenance issues, access rights, custody and / or claims for compensation.

6. “I am responsible for my spouse’s debts!”

This is also one of the most common fallacies in divorce law. Debt cannot be married together, nor is man / woman liable for the debts of the other during the marriage. There is an exception only for so-called business of daily life according to § 1357 BGB. Of course, something else also applies if both spouses have signed a contract together. Then both are usually jointly and severally liable, but not because of the marriage, but because this has been contractually agreed.

7. “I get half of everything that belongs to my partner!”

This is also a mistake. Unless otherwise agreed, the spouses live in the property regime of the community of gains. This means that in the event of a divorce, profit compensation takes place. The financially disadvantaged partner receives half of the additional assets the partner has accumulated during the marriage. The assets before the marriage are not included. Donations and inheritances that the partner received during the marriage are also not offset. At best, the increase in value can be taken into account here.

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8. “A divorce always costs several thousand euros!”

This error also seems to be widespread. In fact, the court and legal fees to be paid are based on the income situation of both spouses. Those who have a low income or who receive benefits to secure their livelihood can receive legal aid. In this case, there might be no costs at all.

Family law is a complex matter. With the divorce, there are usually other follow-up matters, such as the payment of child and spouse’s maintenance, the allocation of the married home, the distribution of household items and the children’s rights of care and access that need clarification.

In all of these questions, it is important to seek legal advice as early as possible.

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