Getting a Divorce in Germany
The divorce process is rarely a pleasant one. It brings complications and it is confirmation that a marriage has not worked out. On our “Divorce Lawyers in Germany” page we have outlined different aspects of the divorce procedure in Germany. Our blog article on International Divorce outlines further aspects of German divorce when it comes to German divorce with international aspects. Furthermore, our family law page has information about a variety of other important and related aspects such as child custody, pension rights equalisation and spousal maintenance. All of these aspects can play an important role in divorce and it is worthwhile to research them in advance.
As stated above, our page on the topic of divorce in Germany outlines the process in more detail, however, we will provide a brief overview here. Under German law, a divorce is permitted where a marriage has broken down (§ 1564 BGB). When it comes to determining whether a marriage has broken down the court will examine whether the parties have lived separate lives from each other for a one year period. This one year timeframe is seen as a separation period. As can be seen under § 1567 BGB, this is easier to prove when the couple does not reside in the same property. However, consult with a divorce lawyer if it is not possible for both partners to live away from each other. The one year period is the case when both parties agree to the divorce. If one side disagrees, there is a presumption that the marriage has broken down if they have lived apart for a period of three years.
In the event of domestic violence or abuse – in hardship cases – the one year seperation period can be waived.
Amicable Resolutions and Divorce Costs
Under German law a lawyer is required to oversee divorce proceedings and to ensure that the case is processed properly. However, should a couple decide to end the divorce in an amicable and non-confrontational manner, it is possible to use one lawyer to ensure that the divorce is carried out. By doing so and thus only paying one lawyer’s fees there is an immediate reduction in the divorce costs. However, this route is only recommendable when there is no conflict and the split is amicable. Should there be conflict, it is recommended to have more than one lawyer overseeing the case.
In an amicable divorce situation there will be further savings as there will be less requirement to drag out a divorce case beyond what is strictly necessary. Resolving the divorce amicably will require some time to resolve a number of issues relating to child support and pension rights equalisation but it can be worth it. An amicable divorce is most achievable should the couple have signed a prenuptial agreement before or during the marriage itself. A prenuptial agreement signed while a marriage is strong can lead to fair and equitable division of assets in the event of a divorce.
However, even in the event of an amicable resolution there are costs to getting a divorce. Such costs include lawyers fees and court costs.
What Factors are Important when it comes to Calculating Divorce Costs?
Even in amicable divorce cases there are a number of issues that play an important role. These issues taken together will be key to determining the cost of the divorce itself. The important factors are the following:
- the net income of the partners,
- the number of children the partners have,
- how long the partners have been married for,
- that the couple have their respective pension entitlements divided fairly between them
- the assets held by the partners communally.
In non-amicable cases the divorce costs will have additional factors such as the extra time in court and the work performed by the lawyers. Non-amicable divorces are more likely to involve more than one lawyer and this alone means that they will be more expensive. As well as that, the non-amicable nature of such cases is indicative that there are a number of aspects that need to be resolved especially in relation to assets. These disputed issues may contribute to greater costs.
Below, we have provided an example case in which the figures provided do not refer to any specific case. All the details here have been provided merely to give a clearer picture of how divorce costs are determined.
Establishing the Value of a Divorce in Germany
In order to determine the cost of a divorce the value of the divorce has to be determined. Please note the following: the value of the divorce is not the same as the legal fees or court fees of the divorce. This figure is then used in tandem with the legal requirements of the costs to determine the amount that the court and lawyer will charge for the divorce itself. In order to achieve this value of the divorce the following steps are taken:
- The net income of the couples over the last three months is determined. This is achieved by multiplying the net income of each partner by three and then putting them together. For example: Partner 1 earned €2800 per month whereas Partner 2 earned €2250 per month. The total earned: (€2800 x 3 + €2250 x 3) = €15,150.
- This amount is then reduced by €250 per month per child in the marriage. In this case Partner 1 and Partner 2 have two children together. This reduces the amount as follows: (€250 x 3 + 250 x 3) €1500. €15150 – €1500 = €13,650. This is the main procedural cost-
- Add the cost derived from pension rights equalisation – this is essentially a fair distribution of the pension entitlements the pair accumulated during the course of the marriage. This amount will be decided on by the facts of the situation. In this case the figure will be determined as €1000. €13650 + €1000 = €14,650.
- Issues relating to determining child custody and access can also be determined during the divorce. In this case there are two children so this does apply. This is determined as 20% of the main procedural cost. 20% of 13650 = €2730. This is added to the previous figures: €14650 + €2730 = €17,380.
- Maintenance is also taken into account here and again this will depend on the facts of the case in question. In this instance the couple have agreed that maintenance payments of 400€ per month. 12 x €400 = €4800. This is added on: €17,380 + €4800 = €22,180
- Division of assets will be another aspect. This can involve issues relating to the household assets and accrued gains during the marriage. In this case the household assets are worth €17,500 and the accrued assets are valued at €20,000. These figures are added to give us the total amount for the value of the divorce. The total value of the divorce in this case is €59,680.
The Real Cost of the Divorce
Now that the value of the divorce has been established the cost of it can be determined. Firstly, we can establish the court costs by bringing the figure above (€59,680) to the table in the annex of the Code of Legal Expense in Family Cases (Gesetz über Gerichtskosten in Familiensachen -FamGKG). The table can be found in the annex of the FamGKG and it provides a figure relating to the value of the divorce. In this case as the value of the divorce is €59,680 the figure given is €666. This has to be multiplied by two as there are two partners to give a total of €1332 . This is the cost of the court in this case.
The legal fees of the lawyer can be found in the Law on the Remuneration of Attorneys (Gesetz über die Vergütung der Rechtsanwältinnen und Rechtsanwälte – RVG). Once again there is a table that determines the amount to be paid in accordance with the value of the divorce and once again this table is in the Annex RVG. In this case the amount is €1248 for a divorce valued at €59,680. This figure will be multiplied by 1.3 to determine the cost of the procedural fee and by 1.2 to determine the cost of the preparation work. €1248 x 1.3 (€1622.4) + €1248 x 1.2 (1497.6). Additionally there may be some additional expenses. In this case the additional expenses amount to €30. Finally, there is a VAT fee of 19% on such services.
The lawyers fee in this case would be: €1622.4 + 1497.6 + 30 = €3150. €3150 + 19% VAT (€598.5)= €3748.5.
As can be seen determining the cost of a divorce is based on numerous factors and will be determined on a case by case basis. This example has been provided to give an insight as to how the legal fees of a divorce are determined.