Divorce settlement: limits, contents and the correct form

Divorce settlement agreement – If a divorce can no longer be avoided, it should at least be settled amicably between the two spouses. An amicable divorce is the easiest and most cost-effective for all parties involved. A divorce settlement agreement helps to make divorce by mutual consent as uncomplicated as possible and settles all the important issues relating to a divorce in advance. These usually include maintenance claims, the division of assets and custody of the joint children. Back to the guide: Divorce & Real Estate.

Divorces by mutual consent – the divorce settlement agreement makes it possible

Contentious divorces often lead to unwanted results and problems in families. Especially when joint children are involved, it is probably advantageous for all to settle the messy topic of divorce quickly and easily. Consensual divorces with divorce settlement agreements help and settle all important issues in advance. But what are the limits of these agreements, what can they regulate and what form do they need?

• Tip. Our guide for house and apartment: Selling real estate after divorce.

The most important at a glance:

• The divorce settlement agreement attempts to settle all possible points of dispute in advance of the divorce in order to make the divorce as simple as possible. These include, for example, maintenance, custody of the joint children, the procedure with joint assets or even the continuation of the joint family name.
• A divorce settlement agreement does not require a certain form, however, it is recommended to choose the notarization by a notary or the court record, since both can be used as evidence in case of dispute.
• The benefits can be used primarily by couples who desire an amicable divorce. However, divorce settlement agreements are not suitable for contested divorces or divorces that are desired by only one spouse
• The agreement on the consequences of divorce must not unreasonably disadvantage either spouse and is subject to a judicial review of its content, which can declare such provisions to be invalid.

The content – this can be regulated in a divorce settlement agreement

In a divorce settlement agreement, all things concerning the marriage and the divorce can be regulated. In general, this agreement regulates how joint assets, joint children or similar things will be dealt with after the divorce. It is attempted to clarify all points that are normally settled during the divorce in advance, in order to make the divorce as simple as possible. To a divorce succession agreement belong in detail things like the maintenance. Here, both the separation maintenance for the period from the separation to the divorce and the post-marital spousal maintenance for the period after the divorce can be regulated.

The divorce settlement agreement also regulates the custody of joint children, their maintenance and, if necessary, the right of access for the non-caring parent. In addition, the divorce settlement agreement will specify how joint assets, such as the joint home or household effects, are to be dealt with. Other possible points of a divorce settlement agreement are the agreements on the equalisation of gains, exclusion of the legal matrimonial property regime of the community of gains and agreement on the separation of property, the waiver of the right to inheritance and the right to a compulsory portion and the continuation of the joint family name.

• The divorce settlement agreement attempts to settle all possible points of dispute in advance of the divorce in order to make the divorce as simple as possible.
• The possible aspects of a divorce settlement agreement include, for example, maintenance, custody of the joint children, the procedure with joint assets or also the continuation of the joint family name.

The form – this must be observed

A divorce settlement agreement is only legally valid and binding if it has a specific form. An oral or private divorce settlement agreement is only valid as long as there is no dispute. If the statements made in the divorce do not match the document, it cannot be used as such. If you decide on a divorce settlement agreement, it is always advisable to have it notarized. This ensures that the agreement is legally binding on both parties and can be used as evidence in the event of a dispute. A notarized divorce settlement agreement is therefore the cornerstone for a quick and amicable divorce.

Alternatively, the divorce settlement agreement can be recorded orally by the court at a hearing. This alternative is also legally binding and guarantees its validity in court. In case of doubt, both documents can be used for compulsory enforcement against the spouse, e.g. to collect spousal maintenance.

• A divorce settlement agreement does not require a certain form and can be made verbally, in writing, notarized or verbally recorded in court.
• It is recommended that the contract be notarized by a notary public or recorded in court, as both can be used as evidence in the event of a dispute.

The pros and cons – a divorce by agreement

The advantages of a divorce settlement agreement are obvious. The law gives spouses a great deal of leeway in these agreements to settle all issues related to the divorce amicably among themselves. In this way, it is possible to divide the assets between them as fairly as possible, to determine the maintenance claim or even the custody itself and thus to pave the way for a tension-free and as factual as possible dealings with each other. This is especially important for joint children, who often find themselves in a conflict of loyalties during contentious divorces, which often leads to tension in the family. The advantage of an amicable divorce is also the low court and attorney fees. Contentious divorces require more time, more lawyers, and therefore more costs. To avoid this and avoid unpleasant disputes with your spouse, a divorce settlement agreement can make divorce by mutual consent simple and straightforward.

There are hardly any disadvantages with a divorce settlement agreement. However, one should always bear in mind that disputes and disagreements can arise even when drawing up a divorce settlement agreement. Especially in marriages that break up unhappily or only one party wants a divorce, a divorce settlement agreement can often not help. These agreements require that both partners are willing to discuss divorce issues by mutual agreement and are not only willing to take, but also to make concessions.

• The advantages can be used especially by couples who want an amicable divorce
• Through the divorce settlement agreement, all issues related to a divorce can be clarified privately
• However, divorce settlement agreements are not suitable for contested divorces or divorces that are desired by only one spouse

The limits – unreasonable disadvantage to one spouse

Even a divorce settlement agreement has limits. Although it may regulate everything connected with the divorce, it may not unreasonably disadvantage either of the spouses. The agreement is therefore subject to a judicial review of its content and can be declared invalid in the event of inappropriate provisions. Which provisions are ineffective is determined by the court in each individual case. An unreasonable disadvantage of a spouse is assumed, for example, if he or she will foreseeably be dependent on social welfare as a result of the agreement, or if, for example, parental custody and access rights are commercialised, i.e. access rights would be made dependent on financial benefits. With regard to these limits, there is no precise guideline as to which scenarios could lead to an ineffective agreement, as these always depend on the respective situation and are decided by the respective competent court.

• The agreement on the consequences of divorce must not unreasonably disadvantage either spouse.
• Such provisions may be declared invalid by the court
• The divorce settlement agreement is subject to a judicial review of its content

Divorce: guide, help and tips

Divorce is complex, it’s true. But you are not alone! Many let themselves separate and in fact, a large part always finds a good solution. Only a small part ends in a quarrel. So that you can prepare well, you will find here our small guides and tips on divorce, family, money and real estate.

• Divorce: Guide