A divorce is an emotionally and legally complex matter. In a binational context – as in the case of German-American divorces – additional legal challenges arise. In cases involving more than one country, the applicable law must first be determined, according to which everything else – the divorce proceedings themselves, the division of assets, and the assessment of child access, custody, and maintenance rights – is then based. This task requires expertise in international family law and knowledge of current case law.
At Schlun & Elseven Rechtsanwälte, our divorce lawyers support American couples living in Germany, couples who have married in Germany and couples with other family ties to Germany. They have the necessary expertise and experience to support you in this emotionally challenging situation. No matter your concerns, we will stand firmly by your side to enforce your rights and interests quickly and effectively.
We offer our services in German and English.
Divorce in Germany: The Legal Grounds
Under German law, divorce cases are recognised when there is a “breakdown of the marriage”, Section 1565 (1) of the German Civil Code (BGB). Such a “breakdown” is indicated when the couple no longer lives together and does not expect to restore the relationship. In divorce proceedings, couples need to live separately for at least one year (“Trennungsjahr”) or three years if only one of the partners is seeking the divorce. An exception to this rule involves cases of “unbearable hardship”, such as those involving domestic physical and verbal abuse. In such cases, a divorce can be granted without a year of separation. Although Germany’s divorce laws operate on a “no fault” basis, the parties’ behaviour will be considered in matters such as child custody, child support, and spousal maintenance payments.
Child Access and Custody | International Relocation
The courts in Germany place “the best interests of the child” above all other considerations regarding child custody and access. Usually, both parents are granted custody of the child, although parents can voluntarily relinquish their rights to joint custody. If a parent believes that granting joint custody will damage the child’s interests, they can base their challenge for sole custody on this.
Child custody matters are more complicated in situations involving international elements, whereby parents reside in different countries or where a parent is seeking to move the child to another country. In cases where a parent has sole custody of the child, they often do not need the other parent’s permission. However, an agreement should still be made. In cases where both parents have custody, the desired move must be communicated clearly with the other partner. Without constructive dialogue and the other parent’s permission, parents can leave themselves open to the accusation of international child abduction.
If the other parent refuses to stay with you or has taken the child without your consent, you should seek legal assistance immediately and assert your rights in court. As your reliable partner in German family law, we can help you with everything from advice on what the courts often consider essential points to amicable solutions on contact and visiting rights.
Prenuptial Agreements and the Division of Assets
In the event of a divorce, the marital assets are divided. How these assets are divided depends largely on whether agreements have been made. The conclusion of a prenuptial agreement offers many advantages for a married couple, as it provides security and clarity regarding the division of property and assets in the event of divorce or death. They can also significantly reduce the costs associated with a potential divorce.
For entrepreneurs, in particular, agreements regarding the division of assets — especially in relation to the division of business assets — are crucial. For the purpose of asset division, the respective company is subjected to a company valuation. Depending on how the division of assets is organised, this can lead to considerable operational disadvantages and losses.
The law around prenuptial agreements varies considerably worldwide, and in the USA, there are differences between different states’ legislations. Therefore, before committing to a prenuptial agreement governed by German law, it is worth consulting with our family lawyers to determine how US courts will enforce the agreement’s provisions should the parties move back to the USA. Our lawyers will advise you regarding alternatives to German law and governing the effects of marriage, separation, and divorce. Furthermore, we regularly consult with partner firms in the USA regarding contract enforceability issues.
Spousal and Child Maintenance | Financial Obligations after a Divorce
A divorce can result in long-term financial obligations, particularly in the form of child and spousal maintenance. In a cross-border divorce, the enforcement of child and spousal maintenance payments can involve a complex procedure. The Hague Maintenance Convention is a means by which courts abroad generally recognise decisions made by other members of the convention (including Germany). The United States is also a member of this convention, which means that the courts there are more likely to follow German court decisions in child support matters. Our lawyers will answer all your questions about child maintenance law and other maintenance payments.
International Divorce Proceedings
The legal team at Schlun & Elseven Rechtsanwälte will explain what you need to consider under German divorce law, including the procedure and duration of the proceedings.
If one of the partners is an American citizen living in Germany, it could be the case that their residence permit is based on their marriage. Such a situation can leave them vulnerable in the event of a divorce. Our lawyers will advise you comprehensively on the possibilities of obtaining a residence permit after a divorce.
Should your divorce have happened abroad, in the USA or elsewhere, it may be the case that German law has not yet recognised it. Such a lack of recognition can lead to significant problems, such as inability to remarry. Only once the competent state Department of Justice has recognised the foreign judgment, will the marriage be deemed ended. Our lawyers for international divorce law will support you through that process.
Practice Group: German Family Law
Practice Group: German Family Law
Contact our German Family Lawyers
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