Divorce "Hacks": How to counter tricks of the opposing party

The best divorce in Germany is the one uncontested. By that, you and your partner save unnecessary fees, a lot of time, spare nerves, and focus thoughts on the life after the divorce. But what if the soon-to-be ex-partner doesn't cooperate and keeps causing trouble? Here you got 6 hacks on how to counter common disruptive tactics meant to delay your divorce or work against you.

1 It is claimed that the separation year is not over yet

If both of you agree that you want to get divorced, the law assumes that your marriage has failed after the separation year has passed. You will then be divorced by mutual consent. If one partner claims that the separation year has not been completed, it is your responsibility to prove that the separation year has been fulfilled. You can prove this if you:

• have moved out of the marital home and registered with a new address at the residents' registration office,
• conversely, the partner has moved out and you inquire at the residents' registration office when the move took place, 
• can present a letter of separation with the partner's signature,
• have applied for legal aid (Verfahrenskostenhilfe), or
• can name witnesses who can provide a reliable statement about the time of your separation.

2 Your partner intends to join the meetings with YOUR lawyer

For your divorce, you must have legal representation. However, in a divorce proceeding, there is no lawyer who could represent both spouses. Lawyers always represent the interests of their clients. In a divorce proceeding, due to the potential interest conflict, a lawyer can only represent one spouse. If you both go to a lawyer, the lawyer can only work towards a mutual divorce agreement. As soon as an interest conflict becomes apparent, the lawyer must resign from the mandate. You would then have to hire a new lawyer. So, if your partner wants to be present during the lawyer meeting, it is only practical if you both agree and are willing to settle your divorce consequences in a mutual divorce agreement. If this is not the case, the lawyer will ask your partner to leave the meeting.

3 Your partner claims that divorce is only possible by mutual agreement

If both of you agree, you will be divorced after the separation year has passed. If one partner does not want to get divorced, the marriage will nevertheless be dissolved after three years of separation without the partner being able to prevent the divorce. Divorce is also possible before the three years have passed if your marriage is demonstrably broken and irretrievably failed.

4 Your partner refuses divorce citing marital misconduct

If partners separate, there are reasons. Then the marriage is dissolved if it is irretrievably broken. Marital misconduct by one partner is irrelevant. Even if the partner refuses the divorce citing, for example, your adultery, you will still be divorced. In divorce law, the question of fault no longer plays a role.

5 Every partner wants the joint children to live with him/her

The dispute over the children often blocks an uncontested divorce. If one partner does not want to give up the children, it is advisable not to question the joint custody and to grant the other partner appropriate visitation rights. Both partners must realize that a child needs care. If only one partner can provide this care, the other must admit that they may not be able to do so due to professional or organizational reasons. To allow the partner to fulfill their parental responsibilities, appropriate visitation rights should be granted. Ideally, you should agree on alternating custody, so that each parent equally bears responsibility for the child.

6 Your partner takes your children abroad

If a parent wants to prevent joint custody of a child, they might flee abroad. The fact is that after a divorce, the joint custody of both parents continues. If one partner moves abroad without the consent of the other parent, there is a suspicion of deliberate child abduction. Joint custody also includes the right to determine the child's place of residence, meaning both spouses, as parents, have the right to determine where the child lives. In such a case, you should make it clear to your partner that, according to the Hague Convention on Child Abduction, they would be obliged to return the child to Germany. The authorities can issue an international arrest warrant for child abduction. As soon as a national border is crossed, the partner and the child will be taken into custody. The partner might not be able to leave the country they fled to. 

Furthermore, clarify that for fundamental matters regarding the child (e.g., school attendance, surgery), both parents must make a decision together. Remember that in such fundamental matters, it can be very helpful if both parents take responsibility for the child and support each other in making decisions during challenging times.

Conclusion

In matters of divorce, the interests of the spouses do not have to be opposing. Contentious divorces often only know losers. Even though an amicable divorce requires a certain willingness to compromise on both sides, it is still the best option and saves you a lot of divorce costs.