Step by step to divorce – separation year, procedure and joint children

A divorce takes place through the application of one or both spouses and through a court order. For this, among other things, a divorce petition must be filed with the family court, the separation year must be gone through and important issues must be clarified. The exact course of the divorce is determined by how the spouses deal with each other.

The most important at a glance

• The separation year is intended as a period of reflection for the couple. The shortening of the separation year is only permitted in special cases
• Amicable divorces take less time and cost less. Contentious divorces often drag on for a long time and can be very nerve-wracking
• The petition for divorce is filed by the petitioner, i.e. the spouse wishing to divorce. With the help of a notary, the equalisation of pensions can be excluded or made more specific.
• 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.
• A divorce should be openly communicated with children in order to give them clarity. A conflict of loaylity for the child should be avoided at all costs.
• The law no longer requires grounds for divorce since 1977. The most common grounds for divorce include infidelity, violence in the relationship or quarrels

The separation year – the legal requirements

Marriage and the family are regarded as one of the most important social institutions in the legal system. The separation year is therefore intended to act as a preventive measure against possibly wrong, purely emotional and only temporary decisions that could be regretted afterwards. Even if the separation year is seen by many married couples as harassment or pure burden, the intention behind the regulation is clear. The decision should be able to be reviewed and possibly revised in the given time. In addition, the time is useful to take care of some things that are important for the further course of the divorce, such as the divorce settlement agreement.

Although there is an obligation to prove that the separation year has been completed, it is not possible to apply to the court for the beginning of the year or to have it notarised. It therefore makes sense to record the beginning in writing. A shortening or even a complete omission of the separation year can only be brought about by a hardship decision of the court according to § 1565 paragraph 2. An example for such a decision can be extreme domestic violence, which the court classifies as undue hardship.

• The separation year should be considered as a reflection period for the couple
• Shortening the separation year is only permissible in special cases

Contentious or amicable divorce – the initial question before divorce

The family court generally decides whether a divorce is amicable or contested. If a divorce is amicable between the two spouses, the divorce proceedings are very simple. If the separation year is completed, only the divorce and the pension equalization, which is usually carried out ex officio, must be decided. In such a case, one lawyer is sufficient for both spouses, which saves enormous divorce costs. Often even an online divorce for the spouses offers itself, whereby the time expenditure is enormously minimized and the costs are kept low. An amicable divorce can be greatly favoured by a divorce settlement agreement, which is already drawn up by the spouses during the separation year.

If there is a contested divorce, both spouses are required to be represented by their own attorneys. This increases the divorce costs for both parties enormously. The proceedings in contested divorces usually take longer than in amicable divorces and involve higher costs.

• Amicable divorces last shorter and cost less
• Contentious divorces often drag on for long periods of time and can be very nerve-wracking

The procedure – divorce petition and pension rights adjustment

Regardless of whether a divorce is amicable or contested, the petitioner, i.e. the spouse seeking a divorce or his or her law firm, files the petition for divorce with the competent family court after the end of the separation year. This petition shows whether the divorce is contentious or amicable. If it is disputed due to consequential matters (with the exception of pension equalisation), further applications concerning, for example, maintenance, are also submitted with the divorce petition.

In the next step, the court formally serves the other spouse, i.e. the respondent, with the divorce petition and, if applicable, the petitions on the subsequent matters. In the case of amicable divorces, it is now up to the respondent to inform the court that the information in the petition is correct and to declare that he or she will consent to the separation. In contested divorces, it is usually the respondent’s solicitor who takes a position on the divorce petition and the consequential matters.

In most divorces, the equalisation of pensions must be carried out by the family courts. This regulates the entitlements and prospects of a pension due to old age or reduced earning capacity that the spouses have acquired during the marriage. Marriages of up to three years must apply for pension equalisation, all others can exclude it before the notary or structure it more closely. If such equalisation is carried out, the spouses must fill in the forms required by the court, sign them and send them to the family court within a time limit. The court then sends these forms to the pension providers in order to clarify the claims to a pension that arose during the marriage.

In the case of amicable divorces, the divorce date is agreed after the forms have been received. Disputed divorces must clarify the subsequent matters in advance, otherwise the divorce date may be postponed further and further.

• The petition for divorce is filed by the petitioner, i.e. the spouse who wishes to divorce.
• With the help of a notary, the pension equalization can be excluded or more closely structured.

The divorce settlement agreement – the content and the regulations

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.

Divorce with children – communication and the conflict of loyalties

The divorce should be openly communicated by the parents with the children. This is best done in an open conversation before the divorce, where the children have the opportunity to ask questions and have enough time to adjust to the situation. Presenting children with a fait accompli only leads to lasting confusion and lots of unanswered questions. Such a conversation is also necessary for children who are already old enough to suspect a separation through previous behaviour, as otherwise unanswered questions remain and loyalty conflicts may arise. Openness is very important in this situation to avoid disputes and ambiguities.

No matter how much the parents quarrel or how great the resentment towards the ex-partner is, the children must not get these disputes. If the children are dragged into the argument, it often leads to a conflict of loyalty for the child. However, there are many things that parents do unknowingly during a divorce that can lead to such conflict for children. Secrecy about what to do, pushing for decisions, or defaming the other in their absence can have disastrous effects on the child’s emotional well-being. Both parents should therefore remain neutral towards the child and avoid statements against the other partner in any case.

• Divorce should be communicated openly with children to give them clarity
• A conflict of loaylity for the child should be avoided at all costs.

The grounds for divorce – not required by law

The law specifies many things when it comes to divorce. However, since 1977 married couples no longer have to state a reason for divorce in order to be able to divorce. The principle of guilt was replaced here by the principle of disruption. However, the legislator specifies a separation year. Before married couples can get divorced, they must go through a separation year, during which the couple is separated but still remains married. This year is to protect against hasty decisions and purely emotional whims and to preserve the principle of marriage. Only in cases of special hardship, the separation year can be omitted.

There are many different reasons to end a marriage. In each case, the reasons are different and the individual situation of the couple plays a huge role. For some, certain reasons are cause for separation while for others they are not really a reason. However, in most cases it boils down to similar problems. The most common reasons for separation include infidelity, violence in the relationship, arguments or lack of commitment.

• The law no longer requires a reason for divorce since 1977
• The most common reasons for divorce include infidelity, violence in the relationship or quarrels.

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

What does fraudulent misrepresentation in real estate purchase mean legally?

Legally, fraudulent misrepresentation is anchored in § 123 BGB (repeal) and § 444 BGB (exclusion of warranty exclusion in case of fraud). Simplified: whoever knows or at least considers possible a disclosure obligation defect and conceals it from the buyer cannot hide behind the usual “as seen” clause.

• Intent — Seller knows or considers the defect possible
• Duty of disclosure — Buyer would not have been able to recognize the defect on their own
• Causality — without deception, the contract would have been concluded differently
• Legal consequence — rescission, reduction or damages
• Time limit — 1 year from knowledge (§ 124 BGB), maximum 10 years
• § 444 BGB — warranty exclusion does not apply in cases of fraudulent misrepresentation

Important for investors: Unlike normal product liability (2 years), claims arising from fraudulent misrepresentation expire only after 3 years from knowledge (§ 438 Abs. 3 BGB). Anyone who wants to Buy an apartment building has a significantly longer time window for follow-up claims.

Typical cases: What courts classify as fraudulent misrepresentation

The case law of the Federal Court of Justice is extensive, but the line is clear: it is not about cosmetic defects, but about defects that affect the value and that an average buyer would not be able to recognize during a normal inspection. The following situations are particularly relevant in practice:

• Moisture/Mold — covered walls, concealed basements
• Roof damage — known leaks without indication
• House fungus — real fungus is always disclosure-obligatory
• Asbestos, KMF — hazardous substances in roof, facade, floor
• Encumbrances — unregistered right-of-way, setback areas
• Rent arrears — concealed payment defaults in investment properties
• Illegal constructions — lack of building permit for additions/renovations
• Previous damage — former water, fire or settlement damage

Especially risky for buyers of investment properties: concealed rent arrears or invalid rental agreements. These reduce the net cold rent and thus directly the net return calculation as well as the real purchase price factor calculation.

Burden of proof: Why 70 % of lawsuits fail

The biggest hurdle is not the law, but the proof. The buyer must prove that the seller knew of the defect or at least considered it possible — and this years after handover. Pure suspicions are not enough.

BGH, Judgment V ZR 30/19: “Fraud requires actual knowledge or a consideration of the possibility of the defect in conjunction with the awareness that the buyer does not know about the defect and would not or would not have entered into the contract in that knowledge.”

Practical tip: Secure written statements about critical points before notarization (moisture damage, rental arrears, known repairs). A specific question and a consciously false answer are clearly easier to prove than a general “he should have mentioned it”.

Economic damage: Calculation example for investors

How large the actual financial damage is, is often underestimated. The following scenario shows a rented condominium in a B-location, purchase price 450,000 €, cold rent 1,500 €/month — the seller conceals a water damage with renovation costs of 65,000 €.

The return loss amounts to about 20 % — at the same time with a significantly higher capital investment. Whoever does not legally follow up here, finances the seller’s debt over the entire holding period. As described in the Guide to real estate as an Investment, the quality of due diligence often decides the return more than the location itself.

What specific claims does the buyer have?

If fraudulent intent is proven, the buyer has a choice — he must strategically decide, as not every option is economically sensible. The choice depends on the extent of the defect, market development, and financing status.

Caution regarding revocation: The buyer bears the risk of calculating the prepayment compensation towards the bank, if the financing is terminated. With a loan of 350,000 € and 8 years remaining term, this can quickly amount to 25,000–40,000 € — although these are part of the damages, they must first be claimed.

Tax consequences: Speculation tax and depreciation upon revocation

If the purchase contract is revoked, tax-wise the economic reversal applies — the acquisition is treated as if it had never taken place. Already claimed depreciation must be corrected, and paid land transfer tax can be reclaimed under § 16 GrEStG (application strictly within 2 years).

• Land transfer tax — Refund possible under § 16 GrEStG
• Notary fees — Part of the damages claim
• Depreciation correction — previously used depreciation retroactively adjusted
• Speculation period — the 10-year period continues even with reduction
• Compensation for damages — generally not subject to income tax

For calculating the ongoing holding period, the original purchase date is decisive — details on this in the calculator for calculating the speculation period. Anyone who sells the property after a reduction should calculate the real estate speculation tax using the reduced purchase price as new acquisition costs.

Action Recommendation: 6-Step Plan if Fraud is Suspected

Anyone who discovers a concealed defect after handover should act quickly and systematically — the one-year right of revocation (§ 124 BGB) expires upon knowledge and cannot be extended.

• Step 1 — Immediately document the defect photographically
• Step 2 — Commission an expert opinion (1,500–4,000 €)
• Step 3 — Set a deadline for the seller in writing (2 weeks)
• Step 4 — Involve a specialist lawyer for real estate law
• Step 5 — formally explain rejection or reduction
• Step 6 — file a lawsuit within the statute of limitations

Never act hastily before the renovation — whoever removes the defect themselves without giving the seller an opportunity to remedy it often loses the right to claim damages. For ongoing purchase processes, it’s worth looking at our guide to buying real estate as well as the checklist for evaluating real estate — both significantly reduce the risk of fraudulent misrepresentation.

Frequently asked questions about fraudulent misrepresentation

Does the warranty exclusion “as seen, as bought” also apply in cases of fraudulent misrepresentation?

No. § 444 BGB explicitly excludes the possibility of appealing to the warranty exclusion if the seller has deliberately concealed the defect. Even the strictest contractual exclusion does not protect against claims arising from deliberate deception. This very fact makes this provision the most important buyer protection in German real estate law — it cannot be waived contractually because it would violate good faith.

Is the real estate agent just as liable as the seller?

Generally yes, as soon as the agent has their own knowledge of the defect or deliberately makes false statements. The agent will then be held liable under § 280 BGB from the agency contract or from c.i.c. (§ 311 Abs. 3 BGB) as a fiduciary. In practice, this means: buyers can claim against both the seller and the agent — which is particularly interesting if the seller is insolvent or based abroad. A serious professional liability insurance of the agent usually covers such cases.

What is the realistic success rate in court?

Statistics from the OLG case law show that only about 30–35 % of claims for fraudulent misrepresentation are fully successful. The main reason: The proof of intent fails. With expert opinions, documented written seller statements, and witnesses (e.g., craftsmen who were previously commissioned), the success rate increases to 60–70 %. Investors should therefore archive all conversations, exposé content, and email correspondence from the beginning — these will become decisive evidence in the event of a dispute.

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