FAMILY LAW
Divorce: the course from the year of separation to the final order
The decision has usually been made before the first appointment. What is missing is the order of steps. Anyone looking for a divorce lawyer in Cologne rarely has a legal question in mind, but four practical ones: how long will this take, what happens to the money, what happens to the children, and what will it cost. I am Dr Hanna Schmidt, attorney at law and founder of DR. SCHMIDT LEGAL.
The course of a divorce in four phases
01
Year of separation
First the year of separation, which creates the precondition.
02
Petition
Then the petition through a lawyer, by which the proceedings become pending at the competent family court.
03
Proceedings
Then the proceedings themselves, with the pension rights adjustment and whichever ancillary matters have been applied for. How long all of this takes is almost always decided in the third phase.
04
Hearing, order, final effect
Finally the hearing, the order and the point at which it becomes final.
Phase 1: the year of separation
A marriage is dissolved when it has broken down (section 1565(1) German Civil Code). After a year of separation the breakdown is irrebuttably presumed if both want the divorce or the other consents (section 1566(1)). After three years of separation, even without consent (section 1566(2)).
Living apart does not necessarily mean living in different places. It is enough that the shared domestic life has ended and one of them does not want to restore it. In a Cologne flat, with a tight rental market, that means separate bedrooms, separate finances, no services provided for each other. Anyone planning this should record the start date, so that both later give the same one.
Phase 2: the petition, mandatory representation and the competent court
Before the family court and the higher regional court, spouses must be represented by a lawyer in matrimonial matters (section 114(1) FamFG). In an uncontested divorce only one spouse instructs a lawyer and the other consents. Anyone who consents without having taken advice may be giving up claims they do not know about.
Local jurisdiction in matrimonial matters follows the order of precedence in section 122 FamFG. First comes the habitual residence of a spouse together with the minor children of the marriage. For Cologne families that is as a rule the Cologne Local Court sitting as family court. I can represent you before family courts and higher regional courts throughout Germany.
Phase 3: the proceedings and the consolidated bundle
A divorce is rarely one set of proceedings; it is a bundle. The pension rights adjustment runs alongside it automatically. Both spouses have to complete questionnaires from the pension providers, and that is regularly the item that determines the duration. Other ancillary matters only join the bundle if they are applied for: the equalisation of accrued gains, maintenance, the matrimonial home and household contents, custody and contact.
Do you want a quick divorce with the consequences dealt with separately, or do you want everything settled in one set of proceedings? Consolidation delays the divorce but settles everything at once. The third route is usually the best: the consequences are negotiated in advance and recorded in a divorce settlement agreement, and then the divorce goes through. The proceedings stay short and nothing is left open.
Phase 4: hearing, order, final effect
The hearing usually takes less time than the preparation suggests. The court hears both spouses in person, examines whether the conditions for divorce are met, decides the ancillary matters in the bundle and then issues its order. It becomes final when both sides waive their right of appeal or when the appeal period expires without an appeal.
Only when it becomes final is the marriage dissolved. Only from that point does separation maintenance end, post-marital maintenance begin and the pension rights adjustment take effect. What still needs doing afterwards regularly gets lost in the relief: wills and contracts of inheritance need reviewing, as do beneficiary designations in life insurance policies and powers of attorney from the marriage.
Equalisation of accrued gains: half the surplus, in money
Anyone who has agreed nothing else lives in the community of accrued gains. Where one spouse's gain exceeds the other's, the other is entitled to half the surplus as an equalisation claim (section 1378(1) German Civil Code). First, that is a claim for money, not a claim to particular assets. Second, only the growth during the marriage is shared, not the assets themselves.
The cut-off date for final assets is service of the petition (section 1384). That is why the timing of the petition is a question of money and not merely of scheduling. An agreement about the equalisation of accrued gains made while divorce proceedings are pending requires notarial recording (section 1378(3) sentence 2).
Pension rights adjustment: it runs alongside, even if nobody applies for it
The entitlements acquired during the marriage are divided, and that happens automatically. Affected are the statutory pension, occupational pensions, private pension policies and civil service pensions. Agreements about it are possible (sections 6 and 7 Pension Rights Adjustment Act) but need a particular form: an agreement made outside proceedings requires notarial recording (section 7(1)).
The practical point: anyone whose entitlement is considerably larger than their partner's is quietly giving away assets here, without any application being needed. Anyone who worked part-time for a long time or cared for children is quietly receiving assets here. Both should know which role they are in before the petition is filed.
Maintenance in three forms that are not the same thing
01
Separation maintenance
From the separation until the divorce becomes final. Separation maintenance cannot be waived for the future. That follows from the chain of references in section 1361(4) sentence 4 German Civil Code via section 1360a(3) to section 1614(1).
02
Post-marital maintenance
From the point the divorce becomes final, and here the principle of self-responsibility applies: it is the exception and needs a ground, such as caring for a child, age or illness. An agreement made before the divorce becomes final requires notarial recording (section 1585c German Civil Code).
03
Child maintenance
It belongs to the child, not to the parent providing care. It, too, cannot be waived for the future (section 1614(1) German Civil Code). Writing a waiver into an agreement produces a void clause and a false sense of security.
The matrimonial home, household contents and the children
For the period of living apart, the home can be allocated to one spouse for their sole use, and the household contents are divided according to what is equitable (section 1361a German Civil Code). After the divorce a separate provision applies to the home and household items (section 1568b). Whoever is named in the tenancy agreement is not automatically the one who stays.
Custody and contact do not follow the divorce, they run alongside it, and are decided by the child's best interests (section 1697a). Joint custody remains the norm. The divorce changes nothing about that. How daily life, residence and contact are arranged is covered on the page about custody and contact in Cologne.
A joint tenancy agreement on separation and divorce
The most common misconception when moving out is: whoever leaves is out of it. If both signed, both continue to owe the rent. If one spouse moves out and does not indicate a serious intention to return within six months, it is irrebuttably presumed that they have left the sole right of use to the spouse remaining in the home (section 1361b(4) German Civil Code).
The divorce changes the position. Whoever is more dependent on the home can demand that it be allocated to them (section 1568a(1)). The claim to enter into a tenancy lapses one year after the final decision in the divorce proceedings becomes binding, unless it has been brought before the court before then (section 1568a(6)).
What draws a divorce out
01
Filing the petition before the assets have been recorded
The cut-off date for final assets is service of the petition (section 1384 German Civil Code). Anyone who files without knowing both sides' accounts, securities portfolios, life insurance policies, property values and liabilities as at that date is afterwards negotiating about figures they cannot check.
02
Treating the property emotionally first and only then as a calculation
The shared house is usually the largest item and the only one that cannot be divided. Anyone who commits early to “I am staying in it”, without having worked through financing, valuation and taking over the loans, is negotiating without a floor. In the end the agreement fails at the bank, not at the family court.
03
Waiving separation maintenance or child maintenance
Neither can be waived for the future (section 1614(1) German Civil Code, for separation maintenance via section 1361(4) sentence 4). The clause is void, and the claim comes anyway later.
04
Making agreements without the required form
Accrued gains, post-marital maintenance and the pension rights adjustment need notarial recording or a court record. Whatever was agreed without the required form is not enforceable in the end. In a dispute, the negotiation starts again from the beginning.
05
Negotiating about the children in order to move money
Trading contact time against the level of maintenance is the most reliable way to draw proceedings out and to damage the parenting relationship permanently. It turns into two sets of proceedings in which the actual issue no longer matters.
How I proceed
01
Initial consultation
At Jakordenstrasse 8 or by video we clarify three things: since when you have been living apart, what assets and liabilities exist, and whether there is any prospect of agreement.
02
Order of steps
Then we decide the order: negotiate first and divorce afterwards, or file and settle the consequences within the consolidated proceedings. I tell you which position is strong and which is not.
03
Agreement or petition
If there is a prospect of agreement, I draft the divorce settlement agreement and coordinate the notarial recording with a notary's office. If there is none, the petition is filed and the ancillary matters are applied for.
04
Proceedings
In the proceedings I conduct the correspondence, check the other side's disclosures and the pension providers' calculations and represent you at the hearing. Where valuations are needed, I coordinate the experts.
A situation that arises regularly in separations
01
Two working parents, two school-age children, a mortgaged flat in Cologne
A marriage of fourteen years in which one of them worked part-time. They have been living apart in the same flat for seven months. Three calculations come first here, not the petition: the pension rights adjustment, the flat after deducting the loan, and separation maintenance until the divorce becomes final.
YOUR QUESTIONS
Frequently asked questions
Once the year of separation has passed, the pension rights adjustment determines the duration, because both pension records have to be clarified. In an uncontested divorce with no other ancillary matters there are usually a few months between the petition and the hearing. If accrued gains, maintenance or custody questions are added, it becomes considerably longer. Complete documents and promptly completed questionnaires save more time than any application to expedite matters.
As a rule yes. Before a year has passed, a divorce is only possible where continuing the marriage would be an unreasonable hardship for you for reasons relating to your spouse (section 1565(2) German Civil Code). The courts construe that narrowly. You can spend the year of separation in the same home if the shared domestic life has genuinely ended.
No. In an uncontested divorce one spouse instructs a lawyer and the other consents to the petition. That is permissible and usual, because representation before the family court is mandatory (section 114(1) FamFG). I represent only one side in a set of proceedings and may not advise the other. Anyone who consents without their own advice should know which claims they are leaving untouched.
It is not divided. The equalisation of accrued gains is a claim for money (section 1378(1) German Civil Code), not a claim to a particular asset. In practice there are three routes: one takes it over and pays the other out, both sell and share the surplus, or the property stays jointly owned for the time being. The bottleneck is almost always the financing, not the law.
I bill by time, at an hourly rate of 280 euros plus 19% VAT. The statutory fees under the German Lawyers' Fees Act (RVG) form the minimum. Court costs are added, based on the value of the proceedings. Billing through legal expenses insurance is possible. As a rule it only pays the statutory fees; you bear the difference to the hourly fee.
Separation in Cologne: let us talk about the order of steps
Whether you negotiate first or file first decides both the duration and the outcome. In the initial consultation we put your situation in order and settle the steps. Appointments at Jakordenstrasse 8 or by video, Monday to Thursday until 7 pm, Fridays until 5 pm.
FAMILY LAW
Divorce: the course from the year of separation to the final order
The decision has usually been made before the first appointment. What is missing is the order of steps. Anyone looking for a divorce lawyer in Cologne rarely has a legal question in mind, but four practical ones: how long will this take, what happens to the money, what happens to the children, and what will it cost. I am Dr Hanna Schmidt, attorney at law and founder of DR. SCHMIDT LEGAL.
The course of a divorce in four phases
01
Year of separation
First the year of separation, which creates the precondition.
02
Petition
Then the petition through a lawyer, by which the proceedings become pending at the competent family court.
03
Proceedings
Then the proceedings themselves, with the pension rights adjustment and whichever ancillary matters have been applied for. How long all of this takes is almost always decided in the third phase.
04
Hearing, order, final effect
Finally the hearing, the order and the point at which it becomes final.
Phase 1: the year of separation
A marriage is dissolved when it has broken down (section 1565(1) German Civil Code). After a year of separation the breakdown is irrebuttably presumed if both want the divorce or the other consents (section 1566(1)). After three years of separation, even without consent (section 1566(2)).
Living apart does not necessarily mean living in different places. It is enough that the shared domestic life has ended and one of them does not want to restore it. In a Cologne flat, with a tight rental market, that means separate bedrooms, separate finances, no services provided for each other. Anyone planning this should record the start date, so that both later give the same one.
Phase 2: the petition, mandatory representation and the competent court
Before the family court and the higher regional court, spouses must be represented by a lawyer in matrimonial matters (section 114(1) FamFG). In an uncontested divorce only one spouse instructs a lawyer and the other consents. Anyone who consents without having taken advice may be giving up claims they do not know about.
Local jurisdiction in matrimonial matters follows the order of precedence in section 122 FamFG. First comes the habitual residence of a spouse together with the minor children of the marriage. For Cologne families that is as a rule the Cologne Local Court sitting as family court. I can represent you before family courts and higher regional courts throughout Germany.
Phase 3: the proceedings and the consolidated bundle
A divorce is rarely one set of proceedings; it is a bundle. The pension rights adjustment runs alongside it automatically. Both spouses have to complete questionnaires from the pension providers, and that is regularly the item that determines the duration. Other ancillary matters only join the bundle if they are applied for: the equalisation of accrued gains, maintenance, the matrimonial home and household contents, custody and contact.
Do you want a quick divorce with the consequences dealt with separately, or do you want everything settled in one set of proceedings? Consolidation delays the divorce but settles everything at once. The third route is usually the best: the consequences are negotiated in advance and recorded in a divorce settlement agreement, and then the divorce goes through. The proceedings stay short and nothing is left open.
Phase 4: hearing, order, final effect
The hearing usually takes less time than the preparation suggests. The court hears both spouses in person, examines whether the conditions for divorce are met, decides the ancillary matters in the bundle and then issues its order. It becomes final when both sides waive their right of appeal or when the appeal period expires without an appeal.
Only when it becomes final is the marriage dissolved. Only from that point does separation maintenance end, post-marital maintenance begin and the pension rights adjustment take effect. What still needs doing afterwards regularly gets lost in the relief: wills and contracts of inheritance need reviewing, as do beneficiary designations in life insurance policies and powers of attorney from the marriage.
Equalisation of accrued gains: half the surplus, in money
Anyone who has agreed nothing else lives in the community of accrued gains. Where one spouse's gain exceeds the other's, the other is entitled to half the surplus as an equalisation claim (section 1378(1) German Civil Code). First, that is a claim for money, not a claim to particular assets. Second, only the growth during the marriage is shared, not the assets themselves.
The cut-off date for final assets is service of the petition (section 1384). That is why the timing of the petition is a question of money and not merely of scheduling. An agreement about the equalisation of accrued gains made while divorce proceedings are pending requires notarial recording (section 1378(3) sentence 2).
Pension rights adjustment: it runs alongside, even if nobody applies for it
The entitlements acquired during the marriage are divided, and that happens automatically. Affected are the statutory pension, occupational pensions, private pension policies and civil service pensions. Agreements about it are possible (sections 6 and 7 Pension Rights Adjustment Act) but need a particular form: an agreement made outside proceedings requires notarial recording (section 7(1)).
The practical point: anyone whose entitlement is considerably larger than their partner's is quietly giving away assets here, without any application being needed. Anyone who worked part-time for a long time or cared for children is quietly receiving assets here. Both should know which role they are in before the petition is filed.
Maintenance in three forms that are not the same thing
01
Separation maintenance
From the separation until the divorce becomes final. Separation maintenance cannot be waived for the future. That follows from the chain of references in section 1361(4) sentence 4 German Civil Code via section 1360a(3) to section 1614(1).
02
Post-marital maintenance
From the point the divorce becomes final, and here the principle of self-responsibility applies: it is the exception and needs a ground, such as caring for a child, age or illness. An agreement made before the divorce becomes final requires notarial recording (section 1585c German Civil Code).
03
Child maintenance
It belongs to the child, not to the parent providing care. It, too, cannot be waived for the future (section 1614(1) German Civil Code). Writing a waiver into an agreement produces a void clause and a false sense of security.
The matrimonial home, household contents and the children
For the period of living apart, the home can be allocated to one spouse for their sole use, and the household contents are divided according to what is equitable (section 1361a German Civil Code). After the divorce a separate provision applies to the home and household items (section 1568b). Whoever is named in the tenancy agreement is not automatically the one who stays.
Custody and contact do not follow the divorce, they run alongside it, and are decided by the child's best interests (section 1697a). Joint custody remains the norm. The divorce changes nothing about that. How daily life, residence and contact are arranged is covered on the page about custody and contact in Cologne.
A joint tenancy agreement on separation and divorce
The most common misconception when moving out is: whoever leaves is out of it. If both signed, both continue to owe the rent. If one spouse moves out and does not indicate a serious intention to return within six months, it is irrebuttably presumed that they have left the sole right of use to the spouse remaining in the home (section 1361b(4) German Civil Code).
The divorce changes the position. Whoever is more dependent on the home can demand that it be allocated to them (section 1568a(1)). The claim to enter into a tenancy lapses one year after the final decision in the divorce proceedings becomes binding, unless it has been brought before the court before then (section 1568a(6)).
What draws a divorce out
01
Filing the petition before the assets have been recorded
The cut-off date for final assets is service of the petition (section 1384 German Civil Code). Anyone who files without knowing both sides' accounts, securities portfolios, life insurance policies, property values and liabilities as at that date is afterwards negotiating about figures they cannot check.
02
Treating the property emotionally first and only then as a calculation
The shared house is usually the largest item and the only one that cannot be divided. Anyone who commits early to “I am staying in it”, without having worked through financing, valuation and taking over the loans, is negotiating without a floor. In the end the agreement fails at the bank, not at the family court.
03
Waiving separation maintenance or child maintenance
Neither can be waived for the future (section 1614(1) German Civil Code, for separation maintenance via section 1361(4) sentence 4). The clause is void, and the claim comes anyway later.
04
Making agreements without the required form
Accrued gains, post-marital maintenance and the pension rights adjustment need notarial recording or a court record. Whatever was agreed without the required form is not enforceable in the end. In a dispute, the negotiation starts again from the beginning.
05
Negotiating about the children in order to move money
Trading contact time against the level of maintenance is the most reliable way to draw proceedings out and to damage the parenting relationship permanently. It turns into two sets of proceedings in which the actual issue no longer matters.
How I proceed
01
Initial consultation
At Jakordenstrasse 8 or by video we clarify three things: since when you have been living apart, what assets and liabilities exist, and whether there is any prospect of agreement.
02
Order of steps
Then we decide the order: negotiate first and divorce afterwards, or file and settle the consequences within the consolidated proceedings. I tell you which position is strong and which is not.
03
Agreement or petition
If there is a prospect of agreement, I draft the divorce settlement agreement and coordinate the notarial recording with a notary's office. If there is none, the petition is filed and the ancillary matters are applied for.
04
Proceedings
In the proceedings I conduct the correspondence, check the other side's disclosures and the pension providers' calculations and represent you at the hearing. Where valuations are needed, I coordinate the experts.
A situation that arises regularly in separations
01
Two working parents, two school-age children, a mortgaged flat in Cologne
A marriage of fourteen years in which one of them worked part-time. They have been living apart in the same flat for seven months. Three calculations come first here, not the petition: the pension rights adjustment, the flat after deducting the loan, and separation maintenance until the divorce becomes final.
YOUR QUESTIONS
Frequently asked questions
Once the year of separation has passed, the pension rights adjustment determines the duration, because both pension records have to be clarified. In an uncontested divorce with no other ancillary matters there are usually a few months between the petition and the hearing. If accrued gains, maintenance or custody questions are added, it becomes considerably longer. Complete documents and promptly completed questionnaires save more time than any application to expedite matters.
As a rule yes. Before a year has passed, a divorce is only possible where continuing the marriage would be an unreasonable hardship for you for reasons relating to your spouse (section 1565(2) German Civil Code). The courts construe that narrowly. You can spend the year of separation in the same home if the shared domestic life has genuinely ended.
No. In an uncontested divorce one spouse instructs a lawyer and the other consents to the petition. That is permissible and usual, because representation before the family court is mandatory (section 114(1) FamFG). I represent only one side in a set of proceedings and may not advise the other. Anyone who consents without their own advice should know which claims they are leaving untouched.
It is not divided. The equalisation of accrued gains is a claim for money (section 1378(1) German Civil Code), not a claim to a particular asset. In practice there are three routes: one takes it over and pays the other out, both sell and share the surplus, or the property stays jointly owned for the time being. The bottleneck is almost always the financing, not the law.
I bill by time, at an hourly rate of 280 euros plus 19% VAT. The statutory fees under the German Lawyers' Fees Act (RVG) form the minimum. Court costs are added, based on the value of the proceedings. Billing through legal expenses insurance is possible. As a rule it only pays the statutory fees; you bear the difference to the hourly fee.
Separation in Cologne: let us talk about the order of steps
Whether you negotiate first or file first decides both the duration and the outcome. In the initial consultation we put your situation in order and settle the steps. Appointments at Jakordenstrasse 8 or by video, Monday to Thursday until 7 pm, Fridays until 5 pm.
FAMILY LAW
Divorce: the course from the year of separation to the final order
The decision has usually been made before the first appointment. What is missing is the order of steps. Anyone looking for a divorce lawyer in Cologne rarely has a legal question in mind, but four practical ones: how long will this take, what happens to the money, what happens to the children, and what will it cost. I am Dr Hanna Schmidt, attorney at law and founder of DR. SCHMIDT LEGAL.
The course of a divorce in four phases
01
Year of separation
First the year of separation, which creates the precondition.
02
Petition
Then the petition through a lawyer, by which the proceedings become pending at the competent family court.
03
Proceedings
Then the proceedings themselves, with the pension rights adjustment and whichever ancillary matters have been applied for. How long all of this takes is almost always decided in the third phase.
04
Hearing, order, final effect
Finally the hearing, the order and the point at which it becomes final.
Phase 1: the year of separation
A marriage is dissolved when it has broken down (section 1565(1) German Civil Code). After a year of separation the breakdown is irrebuttably presumed if both want the divorce or the other consents (section 1566(1)). After three years of separation, even without consent (section 1566(2)).
Living apart does not necessarily mean living in different places. It is enough that the shared domestic life has ended and one of them does not want to restore it. In a Cologne flat, with a tight rental market, that means separate bedrooms, separate finances, no services provided for each other. Anyone planning this should record the start date, so that both later give the same one.
Phase 2: the petition, mandatory representation and the competent court
Before the family court and the higher regional court, spouses must be represented by a lawyer in matrimonial matters (section 114(1) FamFG). In an uncontested divorce only one spouse instructs a lawyer and the other consents. Anyone who consents without having taken advice may be giving up claims they do not know about.
Local jurisdiction in matrimonial matters follows the order of precedence in section 122 FamFG. First comes the habitual residence of a spouse together with the minor children of the marriage. For Cologne families that is as a rule the Cologne Local Court sitting as family court. I can represent you before family courts and higher regional courts throughout Germany.
Phase 3: the proceedings and the consolidated bundle
A divorce is rarely one set of proceedings; it is a bundle. The pension rights adjustment runs alongside it automatically. Both spouses have to complete questionnaires from the pension providers, and that is regularly the item that determines the duration. Other ancillary matters only join the bundle if they are applied for: the equalisation of accrued gains, maintenance, the matrimonial home and household contents, custody and contact.
Do you want a quick divorce with the consequences dealt with separately, or do you want everything settled in one set of proceedings? Consolidation delays the divorce but settles everything at once. The third route is usually the best: the consequences are negotiated in advance and recorded in a divorce settlement agreement, and then the divorce goes through. The proceedings stay short and nothing is left open.
Phase 4: hearing, order, final effect
The hearing usually takes less time than the preparation suggests. The court hears both spouses in person, examines whether the conditions for divorce are met, decides the ancillary matters in the bundle and then issues its order. It becomes final when both sides waive their right of appeal or when the appeal period expires without an appeal.
Only when it becomes final is the marriage dissolved. Only from that point does separation maintenance end, post-marital maintenance begin and the pension rights adjustment take effect. What still needs doing afterwards regularly gets lost in the relief: wills and contracts of inheritance need reviewing, as do beneficiary designations in life insurance policies and powers of attorney from the marriage.
Equalisation of accrued gains: half the surplus, in money
Anyone who has agreed nothing else lives in the community of accrued gains. Where one spouse's gain exceeds the other's, the other is entitled to half the surplus as an equalisation claim (section 1378(1) German Civil Code). First, that is a claim for money, not a claim to particular assets. Second, only the growth during the marriage is shared, not the assets themselves.
The cut-off date for final assets is service of the petition (section 1384). That is why the timing of the petition is a question of money and not merely of scheduling. An agreement about the equalisation of accrued gains made while divorce proceedings are pending requires notarial recording (section 1378(3) sentence 2).
Pension rights adjustment: it runs alongside, even if nobody applies for it
The entitlements acquired during the marriage are divided, and that happens automatically. Affected are the statutory pension, occupational pensions, private pension policies and civil service pensions. Agreements about it are possible (sections 6 and 7 Pension Rights Adjustment Act) but need a particular form: an agreement made outside proceedings requires notarial recording (section 7(1)).
The practical point: anyone whose entitlement is considerably larger than their partner's is quietly giving away assets here, without any application being needed. Anyone who worked part-time for a long time or cared for children is quietly receiving assets here. Both should know which role they are in before the petition is filed.
Maintenance in three forms that are not the same thing
01
Separation maintenance
From the separation until the divorce becomes final. Separation maintenance cannot be waived for the future. That follows from the chain of references in section 1361(4) sentence 4 German Civil Code via section 1360a(3) to section 1614(1).
02
Post-marital maintenance
From the point the divorce becomes final, and here the principle of self-responsibility applies: it is the exception and needs a ground, such as caring for a child, age or illness. An agreement made before the divorce becomes final requires notarial recording (section 1585c German Civil Code).
03
Child maintenance
It belongs to the child, not to the parent providing care. It, too, cannot be waived for the future (section 1614(1) German Civil Code). Writing a waiver into an agreement produces a void clause and a false sense of security.
The matrimonial home, household contents and the children
For the period of living apart, the home can be allocated to one spouse for their sole use, and the household contents are divided according to what is equitable (section 1361a German Civil Code). After the divorce a separate provision applies to the home and household items (section 1568b). Whoever is named in the tenancy agreement is not automatically the one who stays.
Custody and contact do not follow the divorce, they run alongside it, and are decided by the child's best interests (section 1697a). Joint custody remains the norm. The divorce changes nothing about that. How daily life, residence and contact are arranged is covered on the page about custody and contact in Cologne.
A joint tenancy agreement on separation and divorce
The most common misconception when moving out is: whoever leaves is out of it. If both signed, both continue to owe the rent. If one spouse moves out and does not indicate a serious intention to return within six months, it is irrebuttably presumed that they have left the sole right of use to the spouse remaining in the home (section 1361b(4) German Civil Code).
The divorce changes the position. Whoever is more dependent on the home can demand that it be allocated to them (section 1568a(1)). The claim to enter into a tenancy lapses one year after the final decision in the divorce proceedings becomes binding, unless it has been brought before the court before then (section 1568a(6)).
What draws a divorce out
01
Filing the petition before the assets have been recorded
The cut-off date for final assets is service of the petition (section 1384 German Civil Code). Anyone who files without knowing both sides' accounts, securities portfolios, life insurance policies, property values and liabilities as at that date is afterwards negotiating about figures they cannot check.
02
Treating the property emotionally first and only then as a calculation
The shared house is usually the largest item and the only one that cannot be divided. Anyone who commits early to “I am staying in it”, without having worked through financing, valuation and taking over the loans, is negotiating without a floor. In the end the agreement fails at the bank, not at the family court.
03
Waiving separation maintenance or child maintenance
Neither can be waived for the future (section 1614(1) German Civil Code, for separation maintenance via section 1361(4) sentence 4). The clause is void, and the claim comes anyway later.
04
Making agreements without the required form
Accrued gains, post-marital maintenance and the pension rights adjustment need notarial recording or a court record. Whatever was agreed without the required form is not enforceable in the end. In a dispute, the negotiation starts again from the beginning.
05
Negotiating about the children in order to move money
Trading contact time against the level of maintenance is the most reliable way to draw proceedings out and to damage the parenting relationship permanently. It turns into two sets of proceedings in which the actual issue no longer matters.
How I proceed
01
Initial consultation
At Jakordenstrasse 8 or by video we clarify three things: since when you have been living apart, what assets and liabilities exist, and whether there is any prospect of agreement.
02
Order of steps
Then we decide the order: negotiate first and divorce afterwards, or file and settle the consequences within the consolidated proceedings. I tell you which position is strong and which is not.
03
Agreement or petition
If there is a prospect of agreement, I draft the divorce settlement agreement and coordinate the notarial recording with a notary's office. If there is none, the petition is filed and the ancillary matters are applied for.
04
Proceedings
In the proceedings I conduct the correspondence, check the other side's disclosures and the pension providers' calculations and represent you at the hearing. Where valuations are needed, I coordinate the experts.
A situation that arises regularly in separations
01
Two working parents, two school-age children, a mortgaged flat in Cologne
A marriage of fourteen years in which one of them worked part-time. They have been living apart in the same flat for seven months. Three calculations come first here, not the petition: the pension rights adjustment, the flat after deducting the loan, and separation maintenance until the divorce becomes final.
YOUR QUESTIONS
Frequently asked questions
Once the year of separation has passed, the pension rights adjustment determines the duration, because both pension records have to be clarified. In an uncontested divorce with no other ancillary matters there are usually a few months between the petition and the hearing. If accrued gains, maintenance or custody questions are added, it becomes considerably longer. Complete documents and promptly completed questionnaires save more time than any application to expedite matters.
As a rule yes. Before a year has passed, a divorce is only possible where continuing the marriage would be an unreasonable hardship for you for reasons relating to your spouse (section 1565(2) German Civil Code). The courts construe that narrowly. You can spend the year of separation in the same home if the shared domestic life has genuinely ended.
No. In an uncontested divorce one spouse instructs a lawyer and the other consents to the petition. That is permissible and usual, because representation before the family court is mandatory (section 114(1) FamFG). I represent only one side in a set of proceedings and may not advise the other. Anyone who consents without their own advice should know which claims they are leaving untouched.
It is not divided. The equalisation of accrued gains is a claim for money (section 1378(1) German Civil Code), not a claim to a particular asset. In practice there are three routes: one takes it over and pays the other out, both sell and share the surplus, or the property stays jointly owned for the time being. The bottleneck is almost always the financing, not the law.
I bill by time, at an hourly rate of 280 euros plus 19% VAT. The statutory fees under the German Lawyers' Fees Act (RVG) form the minimum. Court costs are added, based on the value of the proceedings. Billing through legal expenses insurance is possible. As a rule it only pays the statutory fees; you bear the difference to the hourly fee.
Separation in Cologne: let us talk about the order of steps
Whether you negotiate first or file first decides both the duration and the outcome. In the initial consultation we put your situation in order and settle the steps. Appointments at Jakordenstrasse 8 or by video, Monday to Thursday until 7 pm, Fridays until 5 pm.