If one wants to file for divorce, she or he typically has to employ a lawyer or a family law specialist.
This is because a lawyer must file the divorce application at the family court, according to 114 paragraph 1 of the legislation on the procedure in family issues and in cases of voluntary jurisdiction.
Due to the requirement to have counsel before the family court, it is not feasible to handle a divorce wholly without the assistance of a divorce lawyer.
However, if the other spouse wishes to consent to the divorce, he does not need to engage their own divorce counsel, (114 Paragraph 3 No. 3)
Respondents can thus obtain a divorce without a lawyer. However, this spouse is not permitted to file their own petitions because this is only for attorneys.
Similarly, following the divorce, a spouse not represented by a lawyer cannot announce a waiver of appeal.
As a result, the divorce does not take legal force immediately – as in the case of a waiver of appeal declared by a divorce lawyer – but rather after the one-month appeal period has elapsed.
If, on the other hand, the divorce is contested and the other spouse wishes to file an application, he must have his own divorce counsel who he has commissioned.
Divorce is examined after the end of the separation year, there are disagreements over ancillary things or in the view of a spouse, the one-year separation year has not yet ended, and the three-year separation term has not yet begun (although there may also be differences of opinion about follow-up matters).
Child-related issues; custody, contact, and child submission to the other spouse
Along with the divorce, the family court should discuss and rule on ancillary issues in the divorce process (so-called association).
Pension equalization (i.e., pension rights gained during the marriage owing to old age or decreased earning ability that are equalized between the spouses) has a unique status.
Because the family court does pension equalization ex officio if the marriage lasted more than three years and no effective notarial waiver of the equalization is offered.
All other ancillary concerns are decided by the family court only on application. Thus a spouse will unavoidably require the services of a divorce lawyer if an application is to be made.
Consensual divorce: Is it feasible to have a joint lawyer (a “single horse”)?
A joint divorce lawyer is rarely possible.
Even if the couples are basically in agreement regarding the divorce, hiring a joint counsel is typically not viable.
At the very least, he cannot represent both of them in the divorce proceedings before the family court. Essentially, only one of the couples can engage the divorce counsel of their choice.
Both spouses cannot function as clients simultaneously.
The commissioned lawyer then files a divorce petition in family court on behalf of his client, while the spouse, who is not represented by a lawyer, agrees to the divorce (= divorce by mutual consent).
There would obviously be a conflict of interest if a family law attorney was allowed to legally represent both parties.
Essentially, this implies that if the responder wishes to ensure that he is adequately educated about his rights and duties in the context of the divorce, he should also seek guidance from a family law practice.
In most cases, issuing the mandate solely for out-of-court guidance is adequate. The opposing party’s legal counsel is typically not required during an amicable divorce.
A consensual divorce requires that the spouses have been living apart for at least a year (this can also be done within the shared flat) and that the following issues have been established by mutual consent (e.g., in a marriage contract or an agreement on the implications of divorce):
Separation, child support, and post-marital alimony
Unless this occurred during the (amicable) split, a spouse takes over the marital residence.
Division of household effects, to the extent that this did not occur during the (amicable) separation
Even if you are jointly represented by a lawyer or a specialized lawyer seeking divorce assistance, the professional can only legally represent one spouse.
The Advantages of an Amicable Divorce
An amicable divorce provides the following benefits:
- If the couples split the divorce attorney expenses, they might be decreased in half. This should be agreed upon in writing ahead of time.
- Both parties may not have to pay attorney costs if one spouse obtains free legal assistance and engages a family law counsel to divorce, and the other spouse agrees.
- The procedure usually is considerably speedier than in a contested divorce. While this can take several years, an amicable divorce can be finalized in three to four months in the best-case scenario.
In general, an amicable divorce is connected with reduced total expenses – but only when compared to a similar contentious procedure because The procedural value of a divorce procedure is heavily influenced by the income and financial conditions of individuals impacted.
In the event of an amicable divorce, the divorce lawyer’s fees can, in theory, be divided (court costs are always to be paid equally).
Furthermore, the procedural value of contentious procedures improves as the number of ancillary topics included in the joint proceedings increases.
The drawback is that while the family law attorney can speak with both spouses, he can only represent the interests of the one who hired him.
If the couples disagree during the divorce, the spouse, who is not represented by a lawyer, is at a significant disadvantage and has no option to file his own petitions. In this instance, the spouse in issue cannot avoid consulting with their own attorney.
When Should Each Spouse Have Their Own Divorce Lawyer?
In addition to cases where a divorce is contested, or each spouse wishes to file for divorce on their own, each spouse should have their own lawyer if there are substantial assets and/or real estate or one of the spouses is inexperienced in business, for example, because he only cared for the household and the children.
Without your own counsel, the spouse in question may suffer a disadvantage.
In such circumstances, the family court may refuse to give any information since divorce legislation does not allow it.
Advice from a divorce attorney: Do you know what to expect?
It may be beneficial for each spouse to have their own (first) appointment with a lawyer or specialist in family law to be educated on what to expect in the case of separation and divorce.
Legal guidance varies from behavioural measures in the case of separation to processes for separation and divorce support, pension equalization, gain equalization, and child custody (child maintenance, control and rights of access).
Leaving the shared marital home prematurely, especially if you own the house you reside in, might have serious consequences.
As a result, if in doubt, always consult a family law specialist so that you do not discover years later, in the worst-case scenario, that you have carelessly and ignorantly waived essential claims.
Marriage contract and divorce consequences agreement: emergency regulations
A specialist or lawyer in family law is an appropriate point of contact if a marriage contract or an agreement on the repercussions of separation and divorce is to be signed.
He may actively assist you in drafting a marriage contract that is not only legally binding in form but also in content. However, notarial certification is still required for the agreement to be legally binding.
The guidelines on the marriage contract and the agreement on the consequences of divorce include information on the marriage contract and the separation and divorce agreement.
When a lawyer receives a divorce mandate, his obligations are determined by the nature of the divorce, such as whether it is amicable or contested and which ancillary issues must be resolved.
In general, the family law attorney is responsible and obligated to provide complete legal advice to their clients and protect their legal positions.
If the lawyer breaches this duty and his client suffers, he is responsible for damages. He must obtain professional liability insurance to resolve potential damage claims.
Otherwise, he will not be admitted to the legal profession (see Federal Lawyers’ Act Sections 12 (2) and 51). (BRAO).
This does not imply that a client can always seek damages from his divorce counsel if he is unsatisfied with the outcome of the divorce process.
Claims are frequently brought forth by excessively negligent behaviour. In addition to the requirement to offer thorough counsel, one of the lawyer’s essential responsibilities is the duty of secrecy, 43a para. 2 BRAO.
When a client hires a lawyer, they are protected twice: On the one hand, the lawyer is accountable for egregious mistakes in representing his client’s interests. On the other hand, the lawyer must keep secret everything he knows about the mandate that is not evident.
A lawyer’s usual obligations include alerting his client about any communication, such as providing the client with a copy or copy of the court’s, the opposing party’s, and his own lawyer’s letter, as well as cash obtained for the client (e.g. repaid court expenses). to be instantly forwarded to them
In terms of costs, the lawyer must also defend his client’s interests: If the client is eligible for legal aid, the lawyer must notify him.
Otherwise, the divorce lawyer’s responsibilities are as follows:
Pension Equalization and Divorce
Out-of-court consultation to determine if an amicable or contested divorce is conceivable.
Submission of the divorce application and the application for the implementation of pension equalization, if ex officio, which the lawyer verifies beforehand.
A brief evaluation of the pension rights set by the court or the pension insurance organization is carried out while carrying out the pension equalization. However, a pension adviser may only carry out a detailed examination.
Obtaining legal approval for the divorce decree
Claims for upkeep (separation and divorced maintenance as well as child maintenance)
Extrajudicial assertion of the right to information about the person’s income required to pay maintenance if the person entitled to care is represented.
Maintenance claim calculation and out-of-court assertion against the maintenance debtor if the maintenance debtor is represented.
Judicial enforcement of the maintenance claim against the maintenance debtor if the maintenance debtor is represented.
Defence against excessive maintenance claims of the maintenance creditor (by determining the actual maintenance demand) if the maintenance debtor is represented.
Marital residence and household belongings
According to the assignment: Extrajudicial and judicial assertion of the marital home allocation or defence against the allocation
Extrajudicial and judicial claims for return may be asserted if one of the spouses has removed the other’s belongings from the marital residence.
Participation in the division of the household affects if the spouses cannot reach an agreement.
Real estate law and property settlement
Depending on the assignment: extrajudicial and judicial assertion of accumulated gain or defence against accrued income, when the accrued revenue is based on the marital property regime under which the spouses live.
Depending on the assignment: Extrajudicial and judicial assertion of property claims or defence against property claims, particularly in the case of the partition of joint assets such as securities, real estate, or business shares (with the assistance of an expert and/or tax consultant if necessary).
If all prerequisites are met, extrajudicial and judicial application for sole custody of joint children or defence against such a request.
Depending on the assignment: extrajudicial and judicial application for sole right to select residence for joint children, or defence and own application for exclusive right to determine residence
According to the assignment: Extrajudicial and judicial assertion of common children’s contract rights, or partial or continuous defence of contact rights
A divorce lawyer’s responsibilities include counselling the client on the possibility of imposing penalties or implementing enforcement measures against the other party if the latter fails to meet their commitments and applying for standards in consultation with the client. It is also vital to discuss with the client the extent to which appeals against court rulings with unfavourable outcomes can be filed.
How to Choose the Best Divorce Lawyer
How do you locate a reputable family law attorney?
If the “proper” divorce attorney is sought for a contested divorce or ancillary matters to be handled by the court, the question of how to select one frequently arises.
If you are looking for a specialized lawyer or a lawyer that specializes in family law, the following characteristics will help you make a decision:
Is it always necessary to hire a family and divorce lawyer?
Should you now choose a family law attorney or a specialist lawyer who does not have such a title? The precise understanding of the continuously changing case law is vital in the property issues linked with a divorce. On the other hand, specific techniques must be implemented to gain the most significant potential placements for the customer.
As part of supplementary training, a family law expert must demonstrate an in-depth understanding of divorce law. To be entitled to use the term “Fachanwalt,” he must have completed at least 120 cases in family law (at least 60 of which were court procedures) that he worked on himself and independently, in addition to passing the tests. He is also required to further his study in family law.
But be cautious! In theory, even a “basic” family law specialist can be a good divorce lawyer. Because the training frequently runs alongside his day-to-day job in his firm, not every family law attorney can or wants to put up with the extra time and money necessary to obtain the title.
Not every lawyer, especially at the start of his profession, can afford the additional courses, which cost around 2,000 euros.
The term “specialist lawyer for family law” might indicate that the lawyer in question is well-versed in the subject of family law.
However, this does not inherently imply that a seemingly “simple” family law practitioner would be a wrong choice if they did not also have the designation of a divorce attorney. In theory, every licensed lawyer is free to choose the areas of law he wants to specialize in.
If family law is one of a lawyer’s primary areas of interest, his many years of practical expertise can easily match or even surpass that of a young specialist lawyer for family law.
In any instance, the expert and the lawyer have finished a full law degree, a legal clerkship, and a second state examination.
As a result, when looking for a divorce lawyer, you should not depend just on titles. Pay special attention to the statement of the legal firm’s primary interests (e.g. “law firm for family law”, “lawyer for inheritance law”).
Recommendations from friends and acquaintances, the appointment of a divorce lawyer by the local attorneys’ society, and online research are all beneficial when looking for an excellent specialist lawyer or lawyer for family law.
The advantage of Internet research is that the website provides a first impression of the law company for family law.
Because the appearance is sloppy and lacks information, the lawyer’s working style would likely be the same.
If the page is well created and contains simple information, reasonable inferences about the lawyer’s work might be reached if the page is well made. Furthermore, comparison portals that review legal work provide additional opportunities to judge the quality of a lawyer’s work.
The client is generally dissatisfied if the divorce lawyer is challenging to reach. It should thus be simple to contact the lawyer, or he should respond quickly after receiving a (non-binding) request.
However, please keep in mind that a lawyer typically has more than one client and is frequently away from home, for example, for court hearings. So don’t be too restrictive here. The preliminary information should also be helpful.
But be cautious! Do not expect your divorce lawyer to provide you with free telephone advice on all of your concerns without first obtaining a power of attorney. Often, only broad inquiries may be answered at first.
It is better to schedule a personal consultation with the family law attorney. Sitting next to him may determine whether you feel at ease and understood by the chosen representative. When it comes to divorce, you should hire an attorney you can trust.
The client might get an idea of how much the lawyer who will handle the divorce will put into it at the initial appointment. This includes how well the family law attorney answers specific inquiries, how thorough the consultation is, and how well the legal facts are communicated.
A first chat, on the other hand, should not include any in-depth explanations or upkeep calculations. In this situation, the divorce lawyer you’ve hired must first do a more thorough examination of the specific case.
During the initial session, the client might also understand how the divorce lawyer will seem. The lawyer must look neutral and self-assured to avoid being “beaten down” by opposing counsel or the court during the oral hearing.
However, if you are searching for a divorce lawyer, you need also ensure that the divorce lawyer you select has empathy. Divorce is a legal as well as an emotional difficulty for everyone concerned.
The lawyer’s experience and ability are also crucial considerations. If the client has questions regarding the attorney’s professional experience or understanding in certain areas, they should ask them. A compelling family law attorney will gladly respond.
A lawyer you can rely on
Divorce is a highly personal decision. The client must play with “open cards” in this situation, often disclosing upsetting facts to him so that the lawyer may provide customized advice tailored to the divorce and subsequent concerns. A reliable connection between lawyer and client is consequently critical, in which the individual impacted by the divorce has no inhibitions, anxieties, or fears about “what the lawyer may think of him.”
His office’s location
Follow-up issues may necessitate further meetings with the lawyer. As a result, the lawyer should be easily accessible. Conversely, a lengthier path to finding a qualified, trustworthy, and “appropriate” lawyer is feasible. Some people may contact a divorce lawyer only online, in writing, or over the phone. Determine what is essential to you personally. It is not always necessary to have an excellent divorce lawyer nearby.
The fees that a family law attorney can charge when he is hired are significant to the client. This subject should be discussed clearly and honestly in the first meeting so that the client has a general notion of the attorney’s fees and court costs. Furthermore, this is the sole opportunity for the customer to compare the prices of different lawyers.
Even the lawyer cannot predict the ultimate expenses since they depend on which issues are regulated in-depth during the divorce process and which sums in dispute are to be established for them. On the other hand, the lawyer should be able to make an educated guess.
A family law attorney’s charges are frequently the same as those of a general practitioner; thus, hiring one is not more expensive. Unless a separate fee association notice is made, the Lawyers’ Fees Act (RVG) is typically the foundation for how a lawyer for family law sets his charges. This establishes specific charge rates and framework costs for each legal measure.
If you wish to receive family law assistance from a legal company, the initial session costs typically no more than 190 euros (plus 19 per cent sales tax). When scheduling a phone meeting, the client should previously specify how much the divorce lawyer will charge for first legal assistance. Tip: You can also seek advice if necessary.
When looking for the “correct” lawyer, the following checklist might help:
- Is it a general practitioner or a family law specialist? (Not the title, but the focus is crucial)
- Is the divorce lawyer’s website professional and informative?
- Is the initial contact quick and easy, and does it deliver helpful information?
- Did the lawyer address questions at the initial session, and were the legal concerns presented properly and thoroughly?
- Does the lawyer look objective and self-assured?
- Does the lawyer have professional experience, and is he willing to address questions regarding his knowledge? • Does the lawyer fit in terms of sympathy and trust?
- Is the lawyer’s office conveniently accessible, or is it worth travelling further?
- Are the predicted expenses handled clearly and transparently?
If you can respond yes to all the questions, your search for the “correct” counsel was successful. If only one or two questions were answered with a negative and everything else was responded to with a yes, you should examine – if required in another quick chat with the divorce lawyer – whether he is not the suitable counsel for your divorce.
If, on the other hand, the replies are overwhelmingly negative, it is best to continue looking for a qualified divorce lawyer.
Choosing a divorce lawyer isn’t easy. Professional and personal appropriateness is required. We’ll help you select a divorce lawyer.
With this checklist, you should be able to quickly identify the correct qualified legal counsel to manage your divorce.
Hiring an online family law attorney is generally a wise choice in the case of an amicable divorce. Check out our online divorce page checklist to identify an “excellent” internet lawyer.
The question of whether a spouse can hire several divorce lawyers comes sometimes. Initially, the following scenarios in which many attorneys are commissioned at the same time are possible:
Several attorneys from a law firm
A spouse retains the services of multiple family law attorneys. While this is technically feasible, it is not advised. Because a lawyer can also handle the divorce process, involving a second lawyer just adds extra expenditures.
Legal assistance is often only available to cover the fees of a family law counsel.
It is possible to appoint attorneys from different legal firms to handle the various things in the divorce association, such as one law firm for the divorce and another for the follow-up matters.
In practice, however, this is exceptional and unlikely. For one thing, the attorneys must work together.
On the other side, it may irritate the lawyer who, for example, manages a problematic division of household effects for a small charge because the other lawyer obtains a disproportionately greater fee for the less effort required in the divorce.
Finally, due to fee law quirks, employing lawyers from separate legal firms is more expensive for the client than engaging a lawyer from the same law company.
Legal assistance in the divorce association is only given to a lawyer from a law company, mainly for financial reasons.
Subsequent claims do not always have to be made concurrently but might be made independently (in isolation).
Using different family attorneys from other law companies for the divorce or Ver bund and the applicable standalone ancillary case is also feasible. However, due to the circumstances, this should be avoided.
Legal help should always be granted with caution: If an ancillary matter is asserted in isolation rather than in a group, legal assistance may be denied for the intended purpose.
Changing attorneys, for example, because the client is unsatisfied with his current counsel, must be separated from hiring numerous lawyers simultaneously. The following issues occur at this location:
Change of counsel for personal gain
If a client wants to change lawyers, he usually has to pay twice. Because of the unique peculiarities of the legislation governing lawyer fees, the second lawyer obtains the costs to which the first lawyer is entitled. Only if the first lawyer has not acted or has otherwise breached his duty may he charge no fees or be required to repay the advance money received.
Change of legal counsel for legal aid
When legal assistance is granted, the client must pay the second attorney “out of his own money” regularly, as long as the first attorney’s fee entitlement is funded by legal aid and the first attorney has not lost his fee entitlement owing to inactivity or breaches of duty. Furthermore, because the first lawyer was appointed by the family court, the court must first relieve him from his obligations before the second counsel may function.