In the following article, you can read what you as a lawyer need and have to consider in order to carry out the divorce proceedings and the divorce without complications for your client.
Table of Contents
Divorce: The requirements in the normal case
As a rule, the divorce application is filed after the end of the year of separation (§ 1566 BGB). In contrast to Section 630, no enforceable title has to be established over the consequences of the divorce, which in practice has been circumvented by the application of Section 1565, even in undisputed cases.
More than that the spouses have lived apart for a year (diagnosis of breakdown) and that at least one person no longer believes in reconciliation (prognosis that it will remain so) is not necessary to start divorce proceedings.
As a lawyer you need
- A certified copy of the marriage certificate and the birth certificates of the children (§ 133 Abs. 2), and
- A special procedural power of attorney (§ 114 Para. 5).
Content/Material
The date of separation and according to § 133 information on whether the spouses the questions
- of parental care
- of handling
- of child support,
- of spousal maintenance,
- the legal relationships in the marital home and in the household items have settled.
Practical tip:
If you provide your office staff with the appropriate text modules, even a trainee can write divorce applications after a short briefing.
Prerequisites for divorce in exceptional cases
Before the end of the year of separation , a divorce can be filed according to Section 1565 (2) if the continuation of the marriage would mean unreasonable hardship for the applicant for reasons that lie in the person of the opponent (more on this in our article on the year of separation).
Apart from the fact that the client subjectively feels that it is actually unreasonable to be married to his spouse, when filing the divorce application before the end of the year of separation, in practice it is usually about economic interests. Considerations regarding gains, pension equalization or inheritance law may make it desirable to bring the key date forward.
Practical tip:
One way of achieving immediate is (possibly inadmissibly) to submit the divorce application to the (incompetent) administrative court, because the pendency there is the same and to apply for submission to the competent court.
A deliberately early application for divorce is often based on the expectation that the clarification of the pension accounts will take so many months that the year of separation will have passed by the time the parties involved are heard and the divorce will then have to be pronounced regardless of the premature filing.
However, the early deadline that the applicant wanted for the equalization of benefits and accrued gains remains. If, in the case of a divorce application based on Section 1565 (2) sentence 1 of the American Civil Code (“case of hardship”), it is undisputed that the spouses separate for a year in the course of the proceedings, there is no longer any reason for the court to address the reasons for hardship originally presented. In this case, the marriage is to be dissolved due to the length of the separation. In some places you can rely on the judge, who doesn’t schedule before.
However, the client must be advised about the cost risk: If the judge, at the request of the opponent, conducts an early first appointment, the hearing of which shows that neither the year of separation has been fulfilled nor the unreasonable hardship objectively exists, the divorce application will be rejected with costs. The failed attempt has no other disadvantages apart from the costs incurred.
Course of the “non-contested” divorce proceedings
Desire for joint consultation in advance: It is often desired that the opponent can take part in a meeting. As far as it is only about explaining the course of the divorce proceedings, this is without hesitation if the divorce attorney San Diego clearly dispels the misunderstanding “joint lawyer” (see our article on the joint lawyer in divorce proceedings). You can also possibly help the opponent to fill out the VA forms without getting into a conflict of interests.
Lawyer in divorce
Consensual divorce: In consensual divorce proceedings, it is sufficient if only the applicant is represented by a lawyer. But that is indispensable (§ 114 Abs. 1). Legislative projects for an amicable divorce without a lawyer have failed.
The other spouse goes to court – without being represented by a lawyer – and states in the hearing according to § 128 that he considers the marriage to be broken. According to Section 134 (1), he can also expressly agree to the divorce. In that case, however, he cannot submit any applications for the procedure.
In any case, this results in the misconception that one can get a divorce with “a lawyer”. This is only correct insofar as only “one” lawyer appears in the courtroom, but it is not a question of a joint (!) one. Lawyers are prohibited by professional law from simultaneously representing a husband and wife in a divorce proceeding. It is advisable to train the secretariat to recognize and uncover such possible misunderstandings when registering for the first time.
Divorce agreement: The opponent in the proceedings requires his own legal representation if an agreement on the consequences of a divorce pursuant to § 127a is to be recorded in court. The latter also represents a procedural act subject to the obligation to have a lawyer. This should also be clarified at an early stage in order not to create the misconception that the applicant’s lawyer alone is sufficient if there is agreement on the content.
Duration of the divorce proceedings
Different duration of proceedings: Once spouses have decided to initiate the proceedings, they want a prognosis as to how long the undisputed divorce proceedings (no ancillary matter other than pension rights adjustment) will take. This is certainly different regionally or even from department to department – but it essentially depends on how long the slower of the two parties involved needs to clear their pension accounts, because the court usually only sets the hearing date when the necessary for the pension equalization information available.