Almost all countries in the civilized world provide married couples with the right to divorce.

Today, only two countries in the world do not recognize divorce - the Philippines and Malta. International law has several principles governing the divorce procedure. One of them is the applicability of regulations of another country. Divorce in Germany is no exception. It is carried out both according to the laws of the German state, and in some cases according to the laws of other countries.

Divorce without a lawyer is unacceptable

German law makes it mandatory for a lawyer to participate in divorce proceedings. Even if both husband and wife agree, they do not have the right to go to court on their own to file a petition for divorce. On the one hand, such a measure is designed to protect the participants in the process and guarantee the accuracy of the documentation, and on the other hand, the cost of divorce in Germany is quite high due to the participation of lawyers in the case. However, if one of the partners does not have the financial ability to pay for a lawyer, for example, does not have permanent place work, he can apply for state assistance.

The divorce process in Germany is regulated by the Buergerliches Gesetzbuch. This is an analogue of the Russian Civil Code. The document regulates that there are three types of divorce:

• voluntary;
• with dispute resolution;
• accelerated or "hard".

A standard divorce by mutual consent occurs when the couple has no disputes regarding property, child custody issues, property claims have been settled, and there is mutual consent to dissolve the marriage. The second option is the resolution of controversial issues in the courtroom or through judicial assistance, for example, when there is a dispute about custody or the amount of future alimony.

A divorce without the participation of the other party in the process is acceptable when the spouse does not know the whereabouts of his partner and has sworn to this in court under oath, or if the couple has lived apart for more than three years. A “hard” divorce or dissolution of marriage under an accelerated procedure is permissible only in certain cases:

• there are cases of ill-treatment;
• drug or alcohol abuse;
• there are cases of moral violence;
• the commission of a criminal offense by one of the partners.

Separate living is a mandatory requirement

In Germany, as in other European countries, time is provided for reconciliation between spouses, with the exception of “hard” divorces. This is called the period separation, which is mandatory even in the case of divorce by mutual consent. During the period of separation (1 year), the couple should not have common marital relations, including intimate relations. However, attempts at reconciliation are not prohibited, which may include marital relations. The duration of such applications must be more than two months for the decision on separation to be annulled.

As part of separation, it is assumed that one of the spouses moves out of a common apartment or house. It is noteworthy that he is not obliged to pay further rent for previously shared housing. This falls on the partner who remained to live in the apartment, even if the contract was signed in the name of the person who moved out. In some cases, it is not possible to leave due to the high cost of housing and low income. In this option, the court may give the couple the opportunity to live in the same house, but dividing it into private and common areas. If the facts of the husband’s use of violence against his wife have been established, and she does not have the means to rent another apartment, then the state, at the request of her lawyer, can provide social housing.

Russians in German court

Divorce in Germany from a German, as already mentioned, occurs exclusively through the court and with the participation of lawyers. The process is regulated by German law, regardless of the wife’s nationality. But the fact of married life in Germany implies the presence of a German residence permit and, as a result, compliance with local laws. If the couple does not have German citizenship, but, for example, both are Russians living in the country on the basis of a residence permit, then they have the right to divorce in the German Family Court. In this case, family law of the Russian Federation will be applied to them. This principle applies only if the husband and wife have the same citizenship.

Children and custody issues

In Germany, the standard approach to the issue of child custody is that each parent has equal rights. Typically, the court assigns custody of the child to the mother.

Children from 4 to 14 years old are asked for their child’s opinion on who they should live with. After 14 years of age, a child has the right to independently decide which parent he will live with. It is noteworthy that German law protects the interests of parents regardless of their German citizenship. Thus, a Russian mother can be sure that the child’s German father will not deprive her of the opportunity to communicate with the child.

But such equality is valid until the mother or father makes an attempt to infringe on the rights of the other. For example, this includes threats to take the child to another country, restriction of communication, and concealment of information about the whereabouts of the child. In this case, the offending party may not only lose custody, but will also be prohibited from seeing the child in the future.

Alimony: amount and calculation principle

In Germany there is gender equality regarding the child support system. That is, it does not matter who will pay, a woman or a man, only the difference in income is important. German law allows a mother not to work at all until the child is 8 years old. Until the child reaches fourteen years of age, the mother can find a job if she wishes. Thus, the ex-spouse will be required to pay child support for both his child and his ex-spouse until she earns the same income as him. The situation may be mirrored if the ex-wife’s income is higher than the husband’s income.

Divorce in Germany occurs only through the court, regardless of whether the spouses have any minor children or whether there are certain disputes between them. In accordance with paragraph 78 of the Code of Civil Procedure of the Federal Republic of Germany, a party participating in the process must be represented by a lawyer. Moreover, it will take a year of separation to dissolve the marriage.

This residence may be in one single apartment, but in this case the court will need to provide additional evidence of separate housekeeping, including a separate budget, meals, as well as living in different rooms, etc. In a word, be able to prove to the court the absence of a certain family community. Once the consent of the parties to divorce is obtained, it is carried out quite quickly - within one single year. If a party objects, the divorce process itself may be seriously delayed. For example, in the absence of the necessary consent for divorce by one of the parties, the marriage is dissolved by the court, provided that both spouses have lived separately for at least three years.

In addition, getting a divorce in Germany, as well as concluding new marriage, is much more difficult than, for example, on the territory of Russia. Why? For example, in the absence of any children and the general consent of both spouses, the completion of a marriage in Russia can be completed at any registry office, but in Germany such a divorce is possible only through the court.

Quite recently, when one party was a foreigner, and the marriage was not concluded in Germany itself, in principle, it was possible to conduct the process in full accordance with the legislation of the specific state in which the marriage was concluded as citizens and of which the parties are citizens. Now the Supreme Court of Germany has canceled similar practice, from now on, divorce in Germany occurs only in accordance with the legislation of this country.

When considering cases of termination of marriage, the court necessarily provides the parties with some chances for reconciliation. Usually these issues are resolved through special correspondence through the court between lawyers. But if no disputes arise, one single lawyer will be sufficient in the process. Thanks to the standards established by German legislation, accumulated funds are divided pension contributions spouses in the ongoing legal process.

In fact, due to this circumstance, processes continue for an extremely long time. The court is obliged to prepare and send such requests about the status of these pension savings of both parties to the pension authorities. They, in turn, offer both parties to fill out special questionnaires and answer questions. Based on all documents received and necessary information the court calculates the savings of the parties, divides them and then makes a decision.

Is it possible to avoid such a procedure?

Naturally, there is. To resolve this issue, the court proposes to resolve the case amicably and abandon the division of pension savings through a notarial procedure. It should be noted that if the marriage could last less than three years, pension savings there is no sharing here (unless, of course, the parties insist on this). If the marriage has existed for more than three years, you can refuse to divide savings before the court, but in this case, either party can have a lawyer. Such a process in Germany may include issues of alimony payment and division of accumulated property. All this significantly tightens the whole trial.

By the way, during divorces, a logical question often arises: which parent will the children be with and what rights does the other parent have? In the event that both parties were unable to reach an agreement on this issue, with whom exactly the children will live, this question the court decides, taking into account all the circumstances of the case, including the attachments of the children and the opinions of the relevant department for juvenile affairs. Financial situation both spouses do not play a decisive role in this sensitive issue. Let's say the spouse with whom the children then live after a divorce has the right to receive alimony for the maintenance of the children. In addition, in cases established by law, he has the right to receive alimony for his maintenance as well.

In fact, the right of custody of common children after a divorce remains with the parents. The court, upon application of the parties, may transfer custody to one of the parents, but this does not constitute a loss of parental rights of the other. The parent to whom Sorgerecht was transferred is able to independently make all decisions regarding the change of residence, as well as about the treatment of the child, choose childcare facility and the like without the consent of the 2nd parent.

But this does not limit the right of the other parent to communicate with the child. The procedure for communication between a spouse and children is determined either by agreement of the parties or by a court decision. The court thereby establishes both the time, duration, and frequency of communication between the parent and the children.

The decisions to terminate the marriage themselves come into effect after one month.

How much does it cost you to get a divorce in Germany? The price of a divorce depends on two basic factors, namely the income of the spouses and the number of disputes between them, for example, such as the place of residence of your child, as well as the division of property, including alimony. Although these issues would be best resolved outside of court proceedings, simply by concluding, for example, a separate agreement regarding alimony or on the procedure for communication with the child, and thereby not making these issues the subject of the divorce proceedings itself.

As a result, the cost of divorce is significantly reduced. In some cases, a separate financial assistance state, it uses this assistance, inform the lawyer about the presence of prerequisites for filing a new application to the court regarding financial assistance. When one of the spouses has a larger income and the other does not, the latter has the right to pay for the services of his lawyer at the marital expense. The price of such a process consists of state fees and attorney fees. The state fee is divided in half between the parties. If each party hires a lawyer, then the other party pays for it itself.

A case from legal practice

First situation. A client once approached us with a request to protect his legitimate interests in a divorce proceeding. He was the main initiator of the divorce. His marriage to his wife lasted over three years, but the basic condition of living separately for twelve months was not met. According to the client himself, his wife was unfaithful to him and gave birth to a child from a completely different man. He, having experienced severe stress, nevertheless, he forgave his unfaithful wife and continued to live with her. But then he found out that that woman again continued to actively cheat on him and was expecting a second child, but the child was again not his. We advised the client and his wife to conclude a special agreement with a notary on the voluntary division of pension savings.

This document will be needed so that the above process does not drag on for a long time. The lawyer, on behalf of the client, managed to prepare and send to the court a new application for annulment of the marriage, along with a request for its full satisfaction without complying with the necessary condition of separate residence, explaining in detail to the court the entire current situation. In the submitted application, the court saw the exceptionality of the current situation and satisfied this claim without division of savings, as well as separation of both spouses.

Second situation. A client approached us with a request to represent their interests. The main initiator of the divorce was the wife. The client managed to provide us with a copy statement of claim, his wife indicated that she and her husband had not lived together for several years, and their reconciliation was impossible. The client objected to the complete termination of the marriage and explained that everything written in the claim did not correspond to reality. The lawyer decided to prepare and send his objections to the judicial authority on behalf of the client, indicating that both parties had not fulfilled the condition regarding separation.

Facts were cited as evidence that the spouses spent their holidays together and also visited mutual friends. The names of friends were indicated as witnesses. In the event that one of the parties objects to the divorce, the court should have ordered a process in which the evidence listed by the parties was scrupulously considered, including the questioning of witnesses. Legal costs increase significantly, that is, the parties bear enormous expenses. Having received our objections through the court, the client’s wife withdrew her own statement from the court.

We repeat once again: according to paragraph 78 of the Code of Civil Procedure of the Federal Republic of Germany The party involved in the divorce process must be represented by a lawyer. That is, without the services of a lawyer, it is impossible to file the necessary petition for divorce, as well as make a statement or enter into any agreements as part of the process. And not only that, but one party’s application for divorce, which was filed by him personally, will not be accepted by the court for consideration.

The German Civil Code does not discriminate between spouses in the event of divorce. Current law in the case of divorce proceedings in Germany, is the law governing the effects of the marriage at the time the application for divorce is submitted. The following territory is taken into account in the case of dissolution of marriage by divorce:

• - the spouses must have lived separately for a period of time at least one year, one of the spouses filed for divorce, and the other agreed,
• - the spouses have lived separately for three years, a case in which only one spouse can file for divorce.

Dissolution of a marriage is also possible, even if the spouses have not lived apart for one year, if the marriage presents difficulties to one of the spouses. In this case, however, the German court may request additional information and proof.

Divorce procedure in Germany

Divorce proceedings in Germany can begin as soon as one of the spouses files for divorce. German law does not allow a general petition for divorce. In addition, only the spouse requesting a divorce must be represented by German lawyers. Court by family matters manages divorce cases in Germany. Once committed to court, the judge will consider issues like child custody and support, spousal support and division of community property.

If The divorce procedure is carried out according to German law, the balance of supply must be adjusted; meaning pension rights income earned during the marriage should be equally divided between the spouses. In this case, the divorce procedure may take at least six months. The divorce procedure takes approximately ten weeks if there is no need to calculate the supply balance. The delivery balance is not calculated if:

• - the marriage lasted at most three years,
• - both spouses have a waivered supply balance,
• - both spouses agree that the divorce procedure is tired in accordance with foreign law, which is possible if one of the spouses lives abroad.

Are there any other divorce procedures available in Germany?

German law also allows divorce and legal separation. Legal separation does not require any legal formalities to be completed, but for one of the spouses to move separately. Divorce, on the other hand, can only be declared by a German court. Divorce can occur if one of the spouses is already married, underage, or if the parties have not registered the marriage in the Civil Registry Book.

Mantel Natalya

December 2007,latest updates - September 2012

Having analyzed many newspaper articles in both the German and Russian-language press, as well as based on the facts of the personal life and experience of my friends and acquaintances, I take the liberty of informing you about the background and pitfalls of such a difficult process as divorce in order to avoid possible mistakes due to insufficient language proficiency and ignorance of German laws, as well as to ensure that there is as little drama and even tragedy as possible when determining the place of residence after the divorce of common children. But this material cannot replace the advice of a competent lawyer - a specialist in family matters (Familien-recht). After all, on the territory of Germany you can dissolve the marriage bond only through the court with the mandatory participation of a lawyer (Anwaltszwang) on ​​each side (for the poor, financial assistance is provided from the German state /PKH/ - more on this in the second part).

What is the law for divorcing mixed couples?

If married spouses are citizens of different countries, then in absolute terms it would be necessary to comply with the laws of both countries. But the law of each country is valid only on its territory and not every court is informed or willing to accept foreign law as a guide to action. For your information, if you have entered into a marriage (in the Russian Federation, Cyprus, in Denmark, in Ukraine and any other state), and then lived with a husband - a German citizen, a non-EU citizen (with permanent residence or residence permit) or an EU citizen in Germany and filed for divorce in a German family court, then the divorce will be carried out according to German laws. On the other side, in Germany, a divorce of a mixed couple, formalized through a court in another country, is recognized, but only when mutual consent spouses and if there was no violation of local family law.

For mixed couples in the event of divorce, the deutsche Internationale Privatrecht comes into force in Germany, and in Russia the “Public Policy Clause” (Article 1193).

If an international couple living in Germany applied to the local family court (Familien-gericht) for a divorce, then according to German laws (deutsches inter-nationales Privatrecht) after the reform in 1986 (Article 14 of the Introduction to the German Civil Code came into force ( Art. 14 EGBGB - Einführungsgesetz zum Bürgerlichen Gesetzbuch -BGB), the following rules are observed:

For persons of the same citizenship (for example, a German and a German woman, including when a foreign wife has accepted German citizenship and for immigrants from the former USSR, or for citizens of Russia (Ukraine) with a residence permit or permanent residence permit, is valid in case of divorce legislation corresponding to their nationality (Heimatsrecht). For example, the German Family Court in Germany (deutsches Familiengericht) should apply in a divorce to holders of Russian citizenship who have permanent residence in Germany, Russian legislation(russisches Recht), to Turkish spouses - Turkish, but a Filipina and a Filipino or Maltese spouses living in Germany cannot get a divorce - it is prohibited by the law of these two countries!

- for persons who do not have the same citizenship and live (have lived) in Germany,

apply German divorce laws (deutsche Scheidungsrecht). This applies to all married couples in which one of the spouses has German citizenship, as well as for representatives of two various countries living or married in Germany. For example, a Russian citizen married a Japanese citizen in Germany and then lived with him for 5 years in Munich, then she will be able to divorce him on the territory of the Federal Republic of Germany according to German laws; or a Ukrainian citizen married a US citizen in Ukraine, they lived for some time in Germany in legally married, and then left for the USA and soon divorced there. They can also apply to the German Family Court for a divorce; or if a German citizen and a Russian citizen entered into a marriage in Denmark, recognized on German territory, lived for some time in Germany, and then left for Spain, then they can file for divorce in the German Family Court. If a German citizen and his wife from Russia lived in Germany, and then the spouse returned to her homeland after filing an application for divorce in a German court, then the divorce will be carried out according to German laws, even without the consent of one of the spouses. However, if a citizenGermany lived with a foreignerwife outside Germany, then he will get a divorce according to the laws of the country in which helived married to his wife and in the event of his return to Germany, if the spousefirst filed for divorce, and the court decisionthe country where they lived together came into force. For example, a German citizen lived with his Russian wife in the Russian Federation and then he returned to Germany alone, then they can divorce on the grounds Russian law if both spouses agree to divorce. IN Germany recognizes a formalized divorce in another country, if the divorce procedure was carried out without violations of the local Family law, but only through the court, and if there are no joint children and property claims. This is explained by the fact that in the future, in order to register a new marriage, the former German spouse will definitely need a copy of an extract from the court decision on divorce from the German registry office;

- for persons who do not have the same citizenship or the same place of residence, the divorce law of the country where they lived is regulated,

those. that which unites them to a greater extent (weder gemeinsame Staatsangehörigskeit noch einen gemeinsamen Aufenthalt wird die Scheidung nach gemeinsame engste Verbundenheit geregelt). For example, a German citizen with a foreign wife, but not an Englishwoman, lived in England, where the spouse worked and then returned home, then the divorce will occur according to English laws.
In the event that it is difficult for a lawyer to determine on the basis of the legislative framework of which country the divorce procedure will be carried out, he is forced to turn to the German Family Court. If the Family Court in Germany is not sufficiently aware of the rules of legal proceedings in another state of which the foreign spouse is a citizen, then on the basis of German international private law the court decides which law and to what extent it will be guided during the divorce proceedings.

Where to apply for divorce and types of divorces in Germany

You need to submit a petition for divorce through a German lawyer to the Family Court (Familien-gericht) at the place of registration of the joint home or the place of residence of the parental part with whom the common minor children remain (ein Elternteil mit den gemeinsamen minderjährigen Kindern). If a married couple lives outside Germany and no longer has a permanent place of residence in Germany, then the trial will take place in Family Court of the Administrative District of Schönberg in Berlin (Familiengericht des Amtsgerichts Schönberg in Berlin).

There are several types of divorces:

1. “Divorce by consent” (Einvernehmliche Scheidung) in the case where both spouses agree to a divorce, they agreed on the transfer of the former “family” home to one of the spouses, how to divide household items and furniture, the amount of alimony for children and which of the former spouses earns less. In this case, the Family Court (Familiengericht) only checks whether the period of mandatory separation of the spouses has expired.

2. Otherwise, when the spouses themselves cannot agree on the division of furniture and household items, common family housing, or on providing it to one of the spouses, on alimony, then the Family Court will do this for them, using “ debatable"th divorce" (streitige Scheidung).

3. R divorce on a special occasion (Härtescheidung)does not provide mandatory period of separation in following cases(Härtefall) on the basis of § 1565 paragraph 2 of the Civil Code (Bürgergesetzbuch-BGB):
- cruel treatment (torture) of one of the spouses or children (Misshandlungen);
- abuse of alcohol (Alkoholmissbrauch), drugs (Drogenmissbrauch), due to gaming and any other “harmful” addiction of one of the spouses;
- violation of the criminal code by one of the spouses (Straftaten);
- moral violence in the form of insults to human dignity or threats of violence (schwere Beleidigungen oder Drohungen).

Court proceedings in the case of a “divorce by special occasion” can last as long as in the case of a “divorce by consent”: all issues of division of property and financial support for the spouse earning less and common children, as well as the issue of joint housing, must be resolved. The only difference is that divorce actionon a special occasion occurs immediately after separation (Tren-nung), but “divorce by consent”- only byafter one year of separation.

4. Abolition or abolition of fictitious marriage (Aufhebung der Scheinehe) occurs either at the request of both spouses or at the request of the Aliens Office (Ausländerbehörde) on the basis of § 1314 Abs. 2 No. 5 of the Civil Code (BGB) and does not require a mandatory one-year separation between spouses before divorce. The conclusion of a fictitious marriage is prohibited by German law and leads to administrative liability (a hefty fine) for both spouses, deprivation of the status of a foreign spouse and forced deportation from Germany.

5. Invalidity or annulment of marriage (Nichtigkeit der Ehe) made on the basis of the Marriage Law (Ehegesetz), including due to incorrectly submitted or deliberately falsified information before marriage, for example: the presence of a husband or wife in the homeland; the divorce has not yet been formalized or the local court’s decision on divorce has not entered into legal force.

Mandatory separation before divorce in court and attempt at reconciliation

There are many real reasons for divorce. On the other hand, in order to get a divorce in Germany, you do not need to indicate a reason in court, but it is enough that one of the spouses no longer wants to be married to their partner. The cause of adultery is no longer an aggravating cause with an obligatory consequence in the form of divorce (by the way, German women insisted on this!). If it is no longer possible to save a “cracked” marriage, or, on the contrary, it is not worth doing this at all, then it is best to separate on good terms. Around the world, only citizens of two countries do not have the right to this: the Philippines and Malta. If living together is no longer possible, then sooner or later an official legal registration the actual termination of the existence of the family with all the ensuing consequences. Divorce in Germany is only possible through the court, where the interests of the participants in the divorce process must be protected representative - lawyer (Rechtsanwalt),Each spouse has their own. An application for divorce is submitted to the family court (Familiengericht), regardless of whether there are common children in the family and whether the second spouse agrees to the divorce. For judges, the reasons for divorce are not so important, with the exception of “divorce on a special occasion”; their main goal is to establish the very fact of termination of family relations. In this regard, according to German law, a mandatory prerequisite for divorce is the fact of separation for at least one year, but not more than 3 years.

The period of separation begins from filing an application for divorce through your lawyer or moving to another apartment, including to a new partner, and ends with the entry into force of a court decision on divorce. Living is considered separate if the husband and wife do not run a joint household and are not in a marital (intimate) relationship with each other, that is, they have individual table and bed. You can live separately or in a shared apartment, but then it should “turn” into a communal apartment, that is, with separate refrigerators or shelves in one, and rooms in which “strangers” people live from now on. If one of the parties disputes the fact of separation, then it is better to leave for a while, even from your own apartment (house), in order to prove to the court that you live separately from your still husband. However, life is life, and therefore it is not in vain that 12 months are given for a woman and a man to make sure whether their marriage can still be saved or whether it is already in such “agony” that it is not worth “resuscitating”. Therefore, the so-called "attempts at reconciliation"(Versöhnungsversuch), which are not recommended to be delayed for more than 2 months. If the couple has lived together again for more than 3 months, then it is considered that the spouses have reconciled and the separation will be suspended and the application for divorce withdrawn from consideration (Scheidungsantrag wird zurückgezogen). In the event that the husband and wife got back together with the goal of reconciliation and lived together for some time, but realized that it was not possible to maintain the marriage bond, then it is allowed to apply new countdown of the one-year periodseparate residence since the end of the last “attempt at reconciliation”, which should, in its “pure” form (without such congresses), be at least one year. On the other hand, vacations spent together or short-term visits, even if there is intimacy, are not considered “reconciliation” and because of them the period of separation is not interrupted.

During this time of separation, it will be necessary to resolve a lot of issues: the termination of joint bank accounts and the adjustment of tax payments taking into account arrears and advances, issues of inheritance and will, insurance, and most importantly, for a non-working wife (husband) - the procedure for maintaining at the expense of the other spouse (from the moment the separation begins and before the divorce, and in exceptional cases, after the divorce, as well as alimony maintenance for common children, who will receive the family home, etc.
If the ex-spouse left the previously rented apartment, then the partner who remained there will have to pay for the rent of this housing on his own, even if his name was not on the rental agreement for this housing (Mietvertrag), but no more 3 months, having found a more affordable apartment during this period. On the other hand, the owner of this apartment cannot “drive” a foreign spouse out onto the street for 3 months, even if the lease agreement was only in the name of her still husband. After all, usually when renting out apartments, a deposit of three months is taken (“cold”, that is, without paying utilities, rent - “Kaltmiete”). However, it is best for the remaining partner to quickly find new, cheaper housing. If there is not enough alimony or social benefits or monthly earnings for this, then you will need to submit a petition to the nearest city hall to the department responsible for allocating additional payments for housing ( Wohnungsgeld): einen Antrag auf Wohngeld bei der Wohngeldstelle der örtlichen Gemeinde-, Amts-, Kreis oder Stadtverwaltung stellten), having collected a package of documents, a list of which you can see here: http://www.advoprax.de/neu/rechtsinformationen/sozialrecht /informationen-zum-wohngeld/wie-bekommt-man-wohngeld or in special bureaus ( Wohnberechtigung und Wohnungsvermittlung) for a certificate for the provision of an apartment, paid at the expense of the state ( Wohnberechtigunssschein), but only within one federal state, although regardless of the city where it was issued. As an example, I recommend this site, which lists all the documents required to complete the above form: http://www.stadt-koeln.de/buergerservice/themen/wohnen/wohnberechtigungsschein-wbs.

Already during separation ( Trennungsjahr) the total area of ​​a previously rented joint apartment (Ehewohnung) can be divided by a family judge (Familienrichter) into separate “territories” - rooms, as well as a “common area” - kitchen, toilet and bathroom, corridor, and so on . If a person cannot afford to rent a separate apartment, then he/she cannot end up on the street (dem anderen Ehegatten Obdachlosigkeitdroht). If there were beatings or other physical violence (erhebliche Miss-handlungen), as well as only threats physical violence or moral abuse of the wife and children, then already during the period of separation (Trennungsjahr), the previously rented apartment or housing, whose sole owner was the husband, let’s call it in a general word - “family home” (Ehewohnung), will be through the court (gerichtliche Zuweisung) according to the Law on Protection from Domestic Violence (01/01/2002 - Gewalt-schutzgesetz), are provided for residence by the spouse, especially if there are children together. In this case, she must immediately, that is, along with the application for divorce, submit a petition through her lawyer for the provision of previously shared housing for her and her children to live after the divorce ( beantragen Zuweisung derEhewohnung für die Ehefrau und die Kinder).

Therefore, it is very important, if possible, immediately or within the first days after the fact of the use of physical violence (Gewaltanwendungen) to consult a doctor and attest (bei einem Arzt ein Attest ausstellen) traces (die körperliche Spuren dieser Misshandlungen) of wounds, bruises, abrasions on body or damage to internal organs, including genitals, because even a husband can rape in gross forms; traumatic brain injuries (concussion, head injury), as well as call or go to the police and record the testimony of possible witnesses there family scandal(Zeugen des Ehestreites). Until the moment when everyone can move into the family home, the foreign spouse can go alone or together with their common children. Women's shelter(Frauenhaus), where she will be provided with a separate room and board. The addresses of crisis centers are classified, so to get there, you will need to personally contact either the police or a socio-religious organization Last name (Profamilia) , which can be found in any town, even a small one: http://www.profamilia.de.

Exercise of parental rights and the right of parents to communicate

As for minor children, it will be necessary to further determine the right to communicate with them. Since July 1, 1998, the court no longer decides which parent will take care of the joint child(ren) and how, since it is based on the fact that to our parents and after raseparations retain equal rights to custody of their joint children(auch nach der Trennung behalten die Eltern gemeinsam die elterliche Sorge für ihre Kinder). If the mother and father cannot come to a common opinion, then it is necessary, through your lawyer, to indicate the desired option for distributing this care on each side. After the debate, the court will decide, based on the age of the child, the opinion of the relevant preschool organizations or school, as well as the conclusions from the opinion of an expert who has extensive experience in dealing with children and who has previously talked with each of the parties, which of the spouses is more capable of ensuring the interests of the child (children), with which of the parents he (they) will develop more harmoniously, to whom he (they) have a greater emotional attachment, who is able to take better care of him (them) and with which of the parents of this child will be better guaranteed communication with brothers and sisters, if any. That is, the court will make a decision with whom the common child(ren) will permanently live and will determine when and how long he/she will be with the other parent (right of communication). This decision can be made family court even before the divorce. But if a settlement agreement is drawn up ( gütliche Einigung zwischen den Eltern), then the father can easily violate it, because before the divorce he is still legal spouse. Therefore, if he does not return common child on time from a walk, then the police will not go to take him away by force, but will wait for the father to voluntarily return the child to his mother. I don’t wish any of you to find yourself in a similar situation! And if you and your husband do not find a peaceful solution to the issue of living together for your common children, or if your husband complains that you can take the child abroad without his consent, then parental rights to of this child may first be transferred to the Office for Minors ( Jugendamt), although the child will permanently live with one of the parents. And then, if the situation worsens, at the discretion of officials, one or both parents may be deprived of custody rights through the court, and then this child will be sent to Children's home or to the parent who still has parental rights to him. So be extremely careful in this matter!

I would like to encourage you, dear women, that German legislation stands GUARDING THE INTERESTS OF THE MOTHER AND CHILD, REGARDLESS OF WHAT NATIONALITY, CITIZENSHIP, RACE OR RELIGIOUS BELIEF OF HIS MOTHER and regardless of whether she has her own income or does not work , does she have a German passport or is it just a residence permit for now?

An option is also possible for mixed marriages, when the wife can file a petition in the family court (einen Antrag an das Familiengericht) to award her alone the right of custody of their common children (die alleine elterliche Sorge für die Kinder),but only in the event that further raising children together with the father will not be to their benefit or benefit, if there have been cases that can be proven when children suffered due to the negligent or indifferent attitude of the ex-husband (or ex-wife) (it will be necessary to apply immediately after the incident to the Office for Children and Youth Affairs - Jugendamt), and there is also a risk of sexual harassment or physical aggression (including beatings) from the father. However, a German spouse (or a foreigner - holder of a residence permit or permanent residence in Germany) - the father of a common child (children) can also take advantage of the sole right of custody over him, if his ex-wife threatens to take him awaycommon children abroad (befrüchteteKindermitnahme in Ausland)without his written consent! After all, this violates his right to parental custody of a joint child after separation, both before and after the official divorce. And in a situation where the father may threaten to take the child abroad if he is a non-citizen of Germany, the right of custody can also be awarded only to the mother, even if she is a foreigner with a residence permit in Germany.

NEVER TELL YOUR HUSBAND THAT YOU WANT TO COME HOME AND TAKE THE CHILDREN WITH YOU!

Only after a divorce and a court decision regarding custody of children, if the financial situation is critical, then you can offer him your departure with the children to your homeland as the only way out from the current situation and obtain voluntary written consent from the father of the common child(ren). Running home could result in you losing your parental rights forever and never seeing them again until you reach adulthood. own child if you are stopped at the border. You could end up in prison for several years for trying to kidnap a child! Don't try to solve all your problems by running away, this is madness! Think first of all about your children, because for them Germany is home, where they were born or grew up, their friends, German close relatives (husband’s parents) live here, they go to school here kindergarten or school, and later can get a higher education without any problems, even at elite universities. If you yourself have not yet settled down in Germany, and you have problems with work due to lack of knowledge of the language, then This is all temporary, not forever! You yourself can begin to improve, even starting everything from scratch and living first on social benefit. The main thing is to want to settle down where your children feel comfortable. Your parents will be able to visit them, but there is no need to hang your children on their already weakened shoulders. Be prudent and wise, regardless of your age! Sacrifice your ego for the sake of your children and it will pay off in the future!

NEVER ATTEMPT TO PUT PRESSURE ONEX-HUSBAND!

After all, in this way you can simply lose the right of custody over your own child, creating a problem for his joint upbringing, which, even after a divorce, is guaranteed by German law to both parents! In 1998 it was adopted Legal reform on childhood (Kinderschaftsrechtsreform), according to which only if the mother is an alcoholic, a drug addict or a person who is unable for a number of other reasons or does not want to take care of her children, then the court decides this issue in favor of the father. If the mother works all day, then she can

He can entrust the father with caring for the child(ren) during this time or he can hire a nanny (Tagesmutter), the costs of which are paid in whole or in part by the German state. The judge may also ask the child(ren) themselves who they would like to stay with and, with sufficient experience, will be able to recognize whether they are under the influence of one of the parents. In controversial issues, the court turns to an expert, usually this concerns children from 4 to 14 years old: up to 4 years old, the issue is resolved in favor of the parent who is more suitable in the role of not so much a teacher, but a “serving person”; after 14 years of age, the child has the right to decide for himself who he would rather stay with; and from the age of 10, his own opinion is already taken into account by the family court.
All ambiguous issues, for example, a possible move, attending a certain school, wearing a school uniform, choosing the first foreign language must be decided by both parents even if the child(ren) remained to live with the mother. The father has not only the right to communicate with him (and), but also to take an active part in his (their) upbringing, regardless of the mother’s consent, if, of course, he does not have a bad influence on them! The questions everyday life(visiting grandparents, neighbors and friends, vacations on vacation in specialized child care institutions, as well as visiting a doctor for colds, vaccinations or because of a bad tooth do not require mandatory approval from the former spouse, but when during the operation, it is required by law, in writing. The father is obliged to spend vacations with the children during their holidays, as well as devote weekends to them, the distribution of which is also decided in the Family Court, if the parents themselves cannot make a mutually suitable decision.

In everyday life, one of the most important moments even before the official divorce for parents is the right decision about the right of communication. This issue must be resolved, first of all, in the interests of the child (children), taking into account his (their) wishes, but only at the parents’ own discretion, since the mother and father have not only equal rights to him, but also responsibilities to their child.

Remember that only YOU DIVORCE FROM YOUR HUSBAND, BUT NOT THE CHILD (CHILDREN) - FROM YOUR FATHER (MOTHER)!

Show maximum restraint, be able to reach a reasonable compromise with your ex-spouse, and try to maintain communication between your child(ren) and the other parent. Therefore, never turn him (them) against, do not say anything bad about him if there is no reason for it, and do not humiliate him. This fact is viewed very negatively by the family court and may cause the judge to rule against the parent who is negatively influencing the child(ren) in this way. Despite the pain of betrayal on the part of your ex-spouse, listen to the wishes and opinions of your child (children) and allow him (them) to see the one who left your home (apartment) as often as possible. After all, for children of any age, PARENTAL DIVORCE is perceived as a personal TRAGEDY. Let it be not only weekends and holidays, but even several hours without an overnight stay on weekdays and another 2 to 3 weeks in the summer, holidays in winter or autumn. Of course, if the child (children) themselves want it, and the other parent can look after them in their own way. free time or during vacation. Try to agree on this with your spouse without quarrels and insults, as in “ better times married life!

What to do if a child (children) was kidnapped, including taken abroad from Germany?

It is not uncommon for a child to be abducted by one of the parties, that is, when a child, after visiting a parent who does not live with him, does not return to the parent with whom he permanently resides. In this case, if it is impossible to reach an agreement, then you must immediately contact the court through a lawyer with a request to make an appropriate decision. The judge will certainly do this if he recognizes the claim as urgent. If, after the court has made an appropriate decision, the other party refuses to give up the child(ren), then they will fines or arrest were applied.

As a last resort, the abducted child (children) can be taken away and returned to the person with whom he (they) permanently reside, by COURT OFFICERS and the police. THE POLICE WILL NEVER DO THIS ON THEIR OWN!

After this fact, the offending party LOSSES THE RIGHT TO VISIT THE CHILD or even TO CUSTODY OVER HIM (Sorgerecht). There is a legal framework to suppress attempts to abduct children abroad, namely: Europeancustody agreement, adopted at The Hague on October 25, 1980, and The Hague Agreement for the Protection of Minors, which ensure the return of a child under the age of 16 (children) to the house (apartment) where he lived before, as decided by the court during the divorce. Currently participating in this agreement are Germany, Austria, Australia, Belgium,UK, Hungary, Spain, Canada, Luxembourg, Norway, Portugal, USA, Sweden, Switzerland and France, but not Russia and Ukraine. In practice, this means the following: every decision on the right of custody of a child under 16 years of age, made in one of the participating countries, is recognized and will be implemented in other participating countries. This Hague Agreement for the Protection of Minors defines the international competence of local courts, as well as matters relating to the rule of law in each individual country, and also applies in Holland and Turkey. However, in practice, fulfilling demands for the return of children still remains very difficult. If you suddenly find yourself in a situation where your ex-spouse, who does not care about the child (children), takes him (them) without agreement with you and does not return him (them), and also does not give him (them) after a pre-arranged meeting with him (s), then you need, first of all,

CALLBE YOURSELFCALL THE POLICE TO TRY TO STOPAN ATTEMPT TO TAKE A CHILD (CHILDREN) ABROAD,

if you have suspicions and data that this may happen; PUT INREMINDER OF YOUR LAWYER, who will contact the Federal Prosecutor General of the Federal Court of Justice in Karlsruhe (telephone: 0721-926-6019 or the prosecutor's office in Karsruhe (Staatsanwaltsschaft Karlsrue: Akademischestrasse 6-8; 76133 Karsruhe; Tel: 0721-926-0; Fax: 0721-926 -5005; www.justiz.baden-wuerttemberg, e-mail: .Competent employees of this department quickly and professionally

will help you with further actions.
For the purposeprevention, that is, when you have concerns that your joint child may be kidnapped by your ex-husband, then contact the Aliens Office (Ausländerbehörde) in advance with an application for registration of the right to a specific place of residence (beantragenAufenthaltsbestimmungsrecht) Your child only within the Federal Republic of Germany. Thus, border guards at German airports, ports, and road checkpoints will be warned in advance, just like their colleagues throughout the EU.
It’s better not to include your common child(ren) in your spouse’s foreign passport from the very beginning if you have even the slightest suspicion of his intention or possibility of taking the children abroad, especially if your spouse is a citizen of another country (say, the USA ) or has a different nationality and a German passport or permanent residence, and will also be especially on guard if he professes another religion, for example, Islam.
Children born in Germany receive their own personal passport from the first days ( Kindereeisepass), with which either parent can take him abroad. Therefore, make sure that this document is always with you! You can prohibit your husband and child from leaving without you to a specific country, for example, to his homeland, however, he can do the same with you.

Alimony obligations towards wife and child(ren)

Types of alimonyspouse (verschiedene Arten von Unterhalt des Ehefrau):
- payment of maintenance during the period of separation(Unterhalt während Trennungsjahres) is due to all spouses, without exception, whose income is lower than that of the husband and is paid after a court decision for a period of 1 to 3 years before the court decision on divorce enters into legal force (more on this in the 2nd part of the article);

• after divorce only in exceptional cases and at the discretion of the court:
• payment of maintenance while raising joint children ( Betreuungsunterhalt), Bye the youngest of them is under 3 years old - guaranteed by law;
• payment of maintenance according to age ( Altersunterhalt), in the case where the spouse, due to her age, can no longer find work - at the discretion of the court;
• sick pay ( Krankheitsbedingter Unterhalt), in the case when the spouse cannot work due to illness (her own or the child’s) - at the discretion of the court;
• maintenance payment for the period when a job search is underway, but a permanent/temporary place of work has not yet been found ( Erwerbslosenunterhalt) - at the discretion of the court;
• payment for maintenance, in the case when a place of work is found, but this is not enough for independent maintenance ( Aufstockungsunterhalt) - at the discretion of the court;
• payment for maintenance during study/retraining ( Ausbildungsunterhalt- at the discretion of the court).

One of the most important aspects, arising as a direct consequence of divorce, are alimony obligations towards the ex-spouse, especially in the case when it is impossible for her (him) to work and combine care a minor child(children), who (e) lives with her (him), but only for the period of separation (maximum three years) and after divorce - until the youngest of the children 3 years old. According to the new law on alimony ( Unterhaltsgesetzt), the latest version of which was adopted in January 2008, the ex-wife now has to support herself after the divorce. That is, she must do everything possible to quickly find a job on her own, and not hang “a weight around the neck” of her ex-husband, who may already have a new family. Previously, a German proverb said: once a doctor's wife, always a doctor's wife (einmal Arztfrau - immer Artzfrau).

At the same time, the principle of gender equality is observed, that is, the one who earns more or is better off pays: that is, a situation may arise that the wife, during the period of separation, will pay alimony to her husband, but only until the divorce decision enters into legal force. Or they will not be paid at all if both spouses have approximately equal incomes or a prenuptial agreement with a separate property regime was concluded ( Gütertrännung).

Calculation of alimony for a spouse using a differentiated method

The amount of alimony is determined by the court individually in each specific case, taking into account possible payments, for example, alimony for children from a previous marriage, previously taken out debts or loans, and based, first of all, on the standard of living of the alimony recipient before the divorce and the income (Einkommen) of the alimony payer. Comrade Back in 2001, the Supreme Federal Court changed the system for calculating alimony, and instead of the “old” method of “deduction” (“Abzugsmethode”), a “new” one - “differentiated method” ( Different method), all the same Tri seventhfrom the net income of the wealthier spouse. The alimony worker himself is left with at least 1000-1100 euros (in the West) and so. 900 euros (in the East). If the remaining amount is not enough to support the common children and spouse, the social department (Sozialamt) gets involved and pays them social benefits. To calculate alimony, an employee (Arbeitsnehmer) must provide a certificate of income (Arbeitslohn) for 12 last months, and those engaged in private entrepreneurship (Selbstständige) - a certificate of income for the last 3 years from the tax office (Steuerbescheinigung vom Finanzamt). It is this category of husbands who have a greater chance of giving incorrect information to the judge, since it is not always possible to accurately separate “net” profit from the total income of the company, especially since profit is usually reduced due to not paying extra taxes .

Let me explain to you the “new” system for calculating alimonywife using a specific example. Let's assume that your spouse receives “net”, that is, after deducting various official taxes, including income taxes, 2800 euros. Under the old method, a non-working wife raising a child(ren) would only receive 1,200 euros (three-sevenths). According to the new calculation principle, first these 1200 euros are deducted from the spouse’s net earnings and they receive 1600 euros. Then, from these 1600 euros, 1200 euros are subtracted and a differentiation (difference) of 400 euros is obtained. So, according to the new rules, the wife has the right to another three-sevenths, but from the amount of the difference, that is, in this case, she will additionally receive almost 172 euros and the total amount of her monthly alimony will be 1,372 euros. Not only housewives benefit from this approach, but also working women who, under the previous accrual system, received a small increase if their salary was very different from their husband’s income or, generally, nothing if it was, say, more than 2,500 thousand euros per month. Now the spouse, in any case, unless she herself begins to receive the same or more than her spouse, can count on an “increase” in her own “cash”. However, do not forget that the same rules apply to your ex-spouse, who can also file a petition for alimony during the period of separation if he receives less than you! I would also like to remind you in what cases you can apply for alimony: guaranteed - for the entire period of separation, child care(children) until the youngest is 3 years old and after divorce, and also, at the discretion of the court - due to his own illness or for health reasons in children; by age(pre-retirement age, although men and women in Germany now retire at 65 years old, and those born after 1962 will retire at 67 years old!), during the period of receiving a second higher education, professional education or retraining, practice, internship, then Yes, if your income is not enough to independently support and support you and your children.

If a low-income spouse does not work, then she has the right to receive alimony in the amount of up to half of all the income of her former spouse, for example, due to her old age (Rentnerin), since she is not legally required to work anymore. But this does not apply to women of working age.

More detailed and up-to-date information on the calculation of alimony for workers, with a private entrepreneur license and non-working wives living separately and in a shared home, with and without children, can be found at German look at this website - “Treffpunkt Eltern“:

We must not forget, however, that if the child (children) is not fully 12 years old, then his can't be left alone at home neither during the day, nor especially at night. Therefore, after a divorce, the ex-wife can attract the father of the common child to look after him, but to the extent possible, and even if the ex-husband already has a new family. If both ex-spouses work, then you will need to find a nanny (Tagesmutter), a suitable full-day kindergarten (Tageskindergarten) and then a after-school school (Schule mit Hort). Until the child turns 8 years old, his mother has the right to get a job only for half a day, if there is no place in the above-described preschool and school institutions.

At the same time, the German state encourages housewives and mothers to return to work, as can be seen from new system calculation of alimony, both as a hired labor force and as an emergency worker (Selbstständige). More details are given about forms of private entrepreneurship and employment, obtaining a second higher education or retraining by foreigners. in the guidebook “Guten Tag, Germany”.

Another important point in the issue of paying alimony is Creation new family those who receive alimony. If the ex-wife gets married, she loses the right to receive them for her own maintenance, and she is only entitled to alimony for the child (children). There are no exceptions in this case! If the ex-wife lives with a new friend in a civil marriage (nichteheliches Zusammenleben) without official registration in the registry office (ohne Trauschein), then the alimony she receives will be recalculated taking into account the income of her new life partner. And after two or three years In such a joint life, the ex-spouse may also completely lose the right to receive alimony, since failure to formalize an official relationship may be interpreted by the family court as a “special trick” to “cash” money from the ex-spouse.

According to the new Alimony Law, there is the following scale that determines first priority persons to pay maintenance from one alimony payer:

• children come first those born in wedlock and out of wedlock (on equal terms), both minors and adults, as long as they receive their first higher or vocational education and are not married themselves (single);
• in 2nd place - spouses: former (only until the youngest child is 3 years old or in exceptional cases by court decision, for example, due to old age) and current, if she does not work for good reasons, including during pregnancy or care for a child who has not yet turned 3 years old;
• in 3rd place: those in need of care due to illness, old age elderly parents and then other relatives.

Alimony maintenance for common children

Alimony for cash support ( Kinderunterhalt) the father (mother) must pay common children before they come of age, as well as after 18 years of age for the entire period of their first higher or professional education, regardless of whether he (s) live single (unmarried) with the parent or separately. How much you are supposed to pay only for children is outlined in a special Dusselldorf table, which is approved every year by the Supreme Regional Court of this city: http://www.olg-duesseldorf.nrw.de.

Size monthly payments directly depends on both the income of your ex-spouse and the age of the children: the older, the more. Children's money (Kindergeld) after the court's decision, the person with whom the child(ren) will live will receive it. In a situation where one of the common children is with the mother, and the other is with the father, then the children's money is accrued to each of these spouses. Parental benefit (Eltern-geld) must be paid to the account of the spouse who cares for the baby until he is 12 months old.

Read the second part of the article.