Planning a Divorce: Keeping an Eye on the Process, Assets, and Real Estate A

Separation often raises personal, financial, and legal questions all at once. By gathering information early on, keeping track of key deadlines, and avoiding a narrow focus on financial issues alone, you can often better navigate and resolve future conflicts in a more sustainable way.

1. What You Should Secure First During a Separation

The more information you have at the start of a separation, the easier it will be to address maintenance issues, asset division, and a potential future settlement. The goal isn’t to resolve every issue conclusively right away. The first step is to systematically gather and organize existing documents and information.

Documents regarding both parties’ income and financial circumstances—ideally accompanied by supporting evidence—are particularly helpful. These include, in particular:

  • Pay stubs;
  • Income tax returns and income tax assessment notices;
  • Bank account details and, if available, account balances;
  • Loan agreements and details on current loan balances;
  • Lease agreements and documents related to real estate;
  • insurance documents and other contract documents relevant to assets.

Such information can be of considerable value later on. It facilitates the determination of income, assets, and ongoing obligations and helps to clearly document the actual financial situation at the time of the separation.

2. The Separation Year and the Breakdown of the Marriage

The date of separation is often a point of dispute between spouses. There is no specific documentation procedure or legal obligation to document the start of living apart. Nevertheless, it makes sense to clarify a specific date and the actual circumstances as early as possible.

If one spouse has moved out of the marital home or family residence, it is often easier to determine the start of the separation. The situation is more difficult when the spouses initially continue to live under the same roof but use separate rooms. The separate use of rooms alone does not necessarily mean that a separation in the legal sense has already occurred.

The actual living arrangements are decisive. Factors to consider may include, for example:

  • whether meals are eaten together;
  • whether groceries are still purchased together or paid for from a joint account;
  • whether laundry is handled jointly;
  • whether they engage in joint activities or spend weekends together;
  • how daily life and the care of shared children are organized.

The better the actual routines can be reconstructed later, the easier it will be to assess any conflicting account provided by the other spouse.

3. Petition for Divorce and Legal Representation

The petition for divorce generally becomes relevant in connection with the expiration of the one-year separation period. Separate requirements apply in special exceptional cases.

The petition must be filed by a lawyer. The decision on when to file a petition for divorce should not be made based on a rigid formula, but rather on the spouses’ personal and financial goals.

The timing of the court’s service of the petition for divorce on the other spouse is particularly important. This establishes key time points for central ancillary matters. This applies in particular to the end of the marriage for the purpose of pension rights equalization and the relevant date for calculating marital gains or the amount of a potential equalization claim.

4. What Is Addressed in a Joint Divorce Proceeding

In addition to the divorce itself, other ancillary matters can be resolved as part of the divorce proceedings. However, with the exception of pension rights equalization, this is not automatically the case.

Pension rights equalization is generally carried out ex officio; a separate petition by a spouse is usually not required for this. A contractual exclusion may affect the process.

Other ancillary matters may include, in particular:

  • equalization of accrued assets;
  • post-marital support;
  • child support under certain conditions;
  • matters concerning the marital home and household;
  • certain matters of filiation.

Equalization of accrued assets is only handled as part of the divorce proceedings if one party brings the matter before the court. Post-marital support and, under certain circumstances, child support may also be handled as part of the divorce proceedings.

Separation support, however, is not handled as a ancillary matter in a divorce proceeding. It can be claimed in a separate proceeding before the family court—either concurrently with the divorce proceedings or even prior to them.

5. Support

5.1 Separation Support

After a separation, the question of separation maintenance often arises. It is particularly relevant when there is a significant disparity in income or when one spouse was not employed during the marriage and immediately prior to the separation.

The claim must be actively pursued. Maintenance for past periods can generally be claimed starting from the month in which information was requested to assert the claim, default occurred, or the maintenance claim became pending. The claim must have existed on its merits; exceptions must be examined on a case-by-case basis. To preserve evidence, it is advisable to make the claim in writing.

The starting point is the determination of both parties’ adjusted net incomes. Liabilities relevant under maintenance law may also be taken into account, such as marriage-related loans, child support obligations, and costs for health insurance and retirement savings. These items may reduce the income relevant for maintenance purposes. Therefore, the calculation of potential spousal support claims is based not solely on nominal net income, but on adjusted income.

Determining income is often complex. This is particularly true in cases of self-employment, multiple sources of income, or income from renting and leasing property, as well as investment income.

5.2 Post-marital support

Post-divorce spousal maintenance applies to the period beginning when the divorce becomes final and generally has different requirements than separation spousal maintenance. The specific living and employment circumstances during the marriage and at the time the divorce becomes final are decisive. In particular, it must be determined whether the individual is currently employed or can reasonably be expected to be employed.

The starting point is the principle of personal responsibility: After the divorce, each spouse is generally expected to provide for their own support. A claim for support is only considered if the divorced spouse cannot cover their own support needs and a statutory basis for the claim is met.

Legally recognized grounds for post-marital support may include, in particular:

  • the care of a child of the marriage;
  • maintenance due to old age, if gainful employment can no longer be expected;
  • maintenance due to illness or other health limitations;
  • unemployment, if no suitable gainful employment can be found;
  • Supplementary support when income from reasonable gainful employment does not cover the full support needs;
  • Maintenance during reasonable education, continuing education, or retraining;
  • maintenance based on equitable considerations.

Factors that are therefore relevant include, among others, the care of minor children of the marriage, health limitations, age, and the duration of the marriage, as well as marriage-related disadvantages in career development. Such disadvantages may exist, for example, if a spouse has limited their gainful employment for the sake of the family, has not pursued their own career development, or has not completed an education.

Post-marital support must also be actively claimed by the spouse seeking it. The court will only address the matter if a corresponding petition is filed and supported by clear and reasonable grounds. The court does not review or decide the matter on its own initiative. The necessary factual circumstances—in particular regarding one’s own financial needs, employment status, and respective income levels—must therefore be presented in a timely manner and substantiated with appropriate documentation.

5.3 Child Support

Child support is governed by its own rules. It does not require that the parents be married or that a petition for divorce have already been filed.

It is not the separation itself, but rather the division of care and financial support that serves as the decisive connecting factor. The parents’ separation is the typical, but not mandatory, scenario in this regard.

Even a minor child of unmarried parents generally has a claim for child support against both parents. As long as both parents actually meet the child’s needs within the shared household and care is provided as part of a shared family household, there is generally no basis for a separate claim for payment. However, a claim for cash child support may also be considered if there is no separation under marriage or domestic partnership law, such as in the case of parents who have never lived together or who actually maintain separate households.

In principle, the parent who cares for the minor child fulfills their child support obligation through that care. The other parent is generally obligated to pay cash child support. The amount of child support depends in particular on that parent’s income. Determining this income can require considerable effort, especially in the case of self-employed individuals or those with multiple sources of income. For this reason as well, it is advantageous to have reliable information on income available before or, at the latest, at the time of separation.

The distinction between primary custody, extended visitation, and a nearly equal shared custody arrangement is significant in practice. Extensive shared custody does not automatically result in a 50- 50 split of the cash child support obligation. However, it can be taken into account when determining the amount of child support.

The parent who cares for the minor child can seek advice and support from the Youth Welfare Office in claiming child support. No guardianship needs to be established for this purpose.

The parent obligated to pay cash child support may also voluntarily submit income documentation to the Youth Welfare Office and request an amicable determination of the support amount. For employees, this may include recent pay stubs; for self-employed individuals, it typically includes tax assessment notices and profit statements from previous years. The Youth Welfare Office can determine the child support needs based on the Düsseldorf Table.

A guardianship is also not required for the certification of a child support obligation. The parent obligated to pay child support may voluntarily have a child support obligation in favor of the minor child certified by the Youth Welfare Office. Upon submission for enforcement, the certificate may become an enforceable child support order. However, the Youth Welfare Office does not issue an enforceable title for the maintenance claim on its own initiative; rather, it certifies the maintenance-obligor’s voluntary declaration of obligation. Without such a declaration, an enforceable title can only be obtained through family court proceedings.

6. Pension Rights Equalization

In simple terms, pension rights equalization refers to the division of pension rights acquired during the marriage. If one spouse has acquired higher pension entitlements during the marriage—for example, through contributions to the statutory pension insurance, an employer-sponsored pension plan, a civil service pension, a professional pension fund, or a private retirement and disability plan—the other spouse may be entitled to a share of those entitlements.

Therefore, the spouse who has accrued fewer or no pension entitlements of their own during the marriage may benefit from pension rights equalization. In principle, the respective entitlements of both spouses are taken into account. The necessary information is obtained from the relevant pension providers, in particular the statutory pension insurance system and providers of occupational or private retirement plans.

In the case of private insurance policies and capital investments, a precise classification is required. The decisive factor is whether the product in question is intended to provide for retirement or disability. Not every lump-sum payment is therefore automatically excluded from pension rights equalization: Entitlements from occupational pension plans and from certified retirement savings contracts must be included in pension rights equalization regardless of their form of payment. Pure capital investments or insurance policies that do not constitute pension benefits subject to equalization, on the other hand, may be relevant to the equalization of accrued gains. The classification should be verified based on the specific contract documents.

Unless pension rights equalization is effectively excluded—for example, by a notarized agreement—it is generally carried out ex officio. A separate application by a spouse is generally not required for this. If the marriage lasted up to three years, pension rights equalization takes place only upon application by a spouse. The court arranges for information to be obtained from the pension providers and performs the calculation on this basis. The effects of pension rights equalization take effect when the divorce becomes final.

7. Family Home: Separating Ownership, Use, and Mortgages

If the spouses jointly own a property in which they live or have lived together, the question of its continued use and a financially viable solution regularly arises upon separation. A key factor here is whether the property is still financed by a loan and whether the current financing must continue. Possible options include continued sole use by one spouse, assumption of the property by one spouse, a sale, or an interim arrangement pending a final agreement.

If one spouse remains alone in the shared property, the question of compensation for use may arise. During separation, Section 1361b(3) of the German Civil Code (BGB) serves as the primary legal basis for a claim when the marital home is made available for use. Compensation for use is not an automatic consequence of co-ownership but is subject to the principle of equity.

According to the wording of the law, a written claim is not a required element. However, it is strongly recommended in order to establish, with evidentiary certainty, the basis, timing, and amount of the claim. Anyone demanding compensation for use as of a specific date should therefore clearly state the effective date and, if possible, the amount of the payment being claimed.

Once the divorce becomes final or outside the context of a specific agreement granting the right of use, the basis for the claim must be examined separately. In cases of co-ownership, the joint ownership provision of Section 745(2) of the German Civil Code (BGB) often applies.

If there is a joint loan with the bank, both spouses generally remain liable to the bank unless the bank accepts a different agreement. If, after the separation, one spouse pays the joint loan installments alone, a joint and several liability settlement may be considered in the relationship between the spouses. The default statutory rule is liability in equal shares, unless another provision or deviating arrangement exists.

This is precisely why the date of separation is also significant in the context of loan financing. Whether and from when an internal settlement can be demanded, however, depends on the previous division of responsibilities and cost-sharing to date, any agreements made, the use of the property, and other circumstances. Prior to the separation, the fact that the spouses were living together may preclude an isolated claim for equalization.

8. Assets, Cut-off Dates, and Documentation

First, it must be clarified which matrimonial property law applies and which matrimonial property regime is in effect. If German matrimonial property law does not apply, no calculation of equalization of accrued gains is made in accordance with the statutory provisions of German matrimonial law.

In the second step, it must be determined whether, and if so, to what extent assets exist and how their composition and value can be determined as of the relevant dates.

Two key calculation dates are particularly relevant for the equalization of accrued gains:

  • the entry into the matrimonial property regime—in the case of the statutory community of accrued gains, generally the date of marriage—for the initial assets;
  • the service of the petition for divorce on the other spouse for the calculation of the marital gains and the amount of the equalization claim, i.e., for the final assets.

The date of separation is also significant in practice. Although it is not the general calculation date for marital gains, it can be important for providing information about the assets and for classifying subsequent changes in asset value.

Therefore, bank accounts, brokerage accounts, real estate, equity interests in companies, vehicles, insurance policies, loans, and other liabilities should be fully recorded as early as possible and documented with appropriate supporting documents.

Calculating the marital gain and any resulting equalization payment to the other spouse can be very complex in individual cases. Spouses should therefore determine early on whether property issues can be resolved amicably or whether, with legal counsel, a viable and conflict-avoiding divorce settlement agreement can be developed.

A thorough out-of-court resolution can often save time, money, and significant personal stress, as it may help avoid protracted legal disputes over assets, valuations, and compensation claims.

9. Agreements and Formality Requirements

A divorce settlement agreement generally requires a specific form if it is intended to bindingly regulate, exclude, or modify the statutory matrimonial property regime. In this case, notarization is required.

It is generally recommended that each spouse seek legal counsel beforehand. This lays the groundwork for properly drafting the terms of an agreement—for example, regarding marital gains, spousal support, pension rights equalization, real estate, and outstanding loans. Joint discussions or mediation may be helpful in this process. The negotiated outcome can then be notarized.

A sound agreement on the consequences of divorce can significantly simplify the court divorce proceedings. It can substantially reduce time, costs, and personal stress because contentious individual issues do not need to be resolved in court, or only to a limited extent. Under certain circumstances, a divorce by mutual consent can be fully finalized within a few months.

10. Factors Affecting Duration and Costs

The duration of divorce proceedings depends largely on whether the spouses can reach a mutual agreement on the divorce and any related matters or whether contentious proceedings are necessary.

In contested proceedings, the issue is often not limited to the divorce itself. Additional disputes may arise, such as those regarding marital gains, post-marital spousal support, the marital home, compensation for use, or the division of jointly owned real estate or similar assets.

Asset valuations can be particularly time-consuming—for example, in the case of real estate, business interests, or other assets that are difficult to value. If expert opinions are required, proceedings can last several years. Expert opinions can incur significant costs, which are typically advanced by the spouses and—depending on the outcome and the cost ruling of the respective proceeding—must ultimately be borne by them.

An uncontested divorce is possible if the parties resolve the relevant issues early on and in a sustainable manner, for example through a divorce settlement agreement. In the best-case scenario, the court divorce proceedings can then be concluded within a few months, at which point the judgment becomes final.

It would not be reasonable to make a blanket statement regarding duration and costs. The value of the claim is typically determined by taking into account the spouses’ income and financial circumstances, as well as the scope and significance of the proceedings. For matrimonial matters, the net income of both spouses earned over a three-month period must generally be included.

Pension rights equalization is subject to its own valuation rules: For each entitlement to be addressed in the pension rights equalization, the value of the proceedings increases by 10 percent of the combined net income of both spouses over a three-month period. This is not one-tenth of the value of the proceedings previously determined for the divorce.

If additional ancillary matters are being handled jointly—such as marital gains or post-marital support— their values are also taken into account.

During an initial consultation with a lawyer, the essential groundwork for an appropriate timeframe and cost estimate can already be laid. However, an amicable settlement always requires the cooperation of both spouses. This is precisely why objective communication, realistic expectations, and a diplomatic approach are often crucial.

Three people are discussing documents in a seating area.
Organize existing documents together—as preparation for the next steps.

11. Documents and Next Steps

If documents are already available, it is very helpful to bring them to the initial consultation with a lawyer. Which additional documents are needed in the specific case can be clarified afterward; missing documents can be submitted later.

If there are no documents or sufficient information regarding the other spouse’s income and assets, there may be legal rights to request such information—depending on the basis for the claim. As a first step, the other spouse can be requested in writing to provide information about their income and assets and to submit appropriate supporting documents.

Depending on the circumstances, the following may be required in particular:

  • current pay stubs;
  • income tax returns and income tax assessment notices;
  • employment contracts and supplementary agreements;
  • pension information and documents regarding other pension entitlements;
  • loan, real estate, and other financial documents;
  • an overview of existing maintenance obligations and other dependents.

12. FAQ

Do I have to live apart for a year to get a divorce?

As a general rule, a one-year separation is required. The decisive factor is when the marital relationship actually ended. Under certain circumstances, this may also be the case even if the couple is living separately within the same residence; however, living in separate rooms alone is not necessarily sufficient.

Does the start of the separation have to be documented in writing?

There is no legal requirement to document this. Nevertheless, it makes sense to clearly record the date and the actual circumstances of the separation. This can be helpful if there are later disagreements about when the separation began.

Can only one spouse file for divorce?

The petition for divorce can be filed with the family court by one spouse who is represented by a lawyer. The other spouse does not need to file a separate petition. It is sufficient for them to consent to the divorce. If they wish to file their own petitions, they must also retain their own lawyer for this purpose.

Does the court automatically calculate spousal support?

No. Separation support and post-marital support must be actively claimed. The court does not examine a potential claim for post-marital support on its own initiative. A specific clarification and assertion of the claim is also required for child support.

Can child support be arranged before a divorce?

A claim for child support exists regardless of whether the parents of the minor child are married to each other. The parents can settle this by mutual agreement before a separation, during the separation, or independently of divorce proceedings. Counseling and support from the Youth Welfare Office are available.

What happens to pension credits in the event of a divorce?

As part of pension rights equalization, the pension entitlements accrued by both spouses during the marriage are generally considered, calculated, and equalized. The court generally conducts the proceedings ex officio unless there is a valid exclusion. If the marriage lasted three years or less, pension rights equalization takes place only upon the request of one spouse.

Does a jointly owned property have to be divided immediately?

No. Depending on the financial situation and personal goals, a temporary arrangement for use, assumption of ownership by one spouse, or a later sale may be considered. Ownership structures, outstanding loans, and the financial viability of the respective solution are particularly important.

Am I still liable for a joint loan if I move out?

As far as the bank is concerned, yes, as long as the bank does not agree to a discharge of debt or any other change. In the relationship between the spouses, a claim for compensation may arise if one spouse pays the joint installments alone after the separation.

Does a divorce settlement agreement always have to be notarized?

Not every provision is subject to the same formal requirements. However, if the matrimonial property regime or the equalization of accrued gains is to be bindingly regulated, excluded, or modified, notarization is generally required. For agreements on other matters, the formal requirements should be reviewed on a case-by-case basis.

How long does a divorce by mutual consent take?

There is no general rule for this. If the spouses are in agreement, all necessary documents are available promptly, and the pension rights equalization does not cause any delays, the proceedings may, under certain circumstances, be completed within a few months. Disputed matters and complex asset valuations can significantly prolong the proceedings.

Why should I secure documents even before the separation?

Documents regarding income, assets, loans, insurance, and retirement savings make it easier to assess the financial situation later on. The more complete the information is, the better maintenance, asset, and real estate issues can be handled objectively.

What happens if I don’t have any information about my spouse’s income and assets at the time of separation?

If information or documents regarding the other spouse’s income and assets are missing, statutory rights to information may exist—depending on the basis for the claim. As a first step, during a consultation with a lawyer, it may be decided to request in writing that the other spouse provide information and submit appropriate supporting documents.

Depending on the specific issue, you may request pay stubs, income tax returns, and tax assessment notices from the other spouse, as well as—if applicable—employment contracts, pension information, loan and real estate documents, and evidence of other assets. The scope of the request for information depends on the specific case.

13. Legal Basis

Note: This article provides general information. The legal assessment and appropriate course of action depend on the circumstances of the individual case.

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About the Author

Beate Marten

Lawyer · Founding Partner
· Certified Specialist Lawyer in Family Law ·
Certified Specialist Lawyer in Employment Law

Beate Marten has been admitted to the bar since 1997. A key focus of her family law practice is separation and divorce, with particular expertise in assets and real estate.

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