Useful information about the divorce convention or divorce agreement
With a divorce agreement or settlement, you have the opportunity to make mutually agreed-upon arrangements with your partner regarding all ancillary consequences of your divorce. This includes the financial implications of the divorce and - in the case of a marriage with children - agreements on child support as well as custody and visitation rights. In this article, you will learn about the contents that a divorce agreement must address, the legal aspects to consider, and how the approval process unfolds.
What is a divorce agreement?
A divorce agreement or settlement is the mutually agreed-upon arrangement of a couple regarding the consequences of their divorce. According to Article 111 CC, you can submit this agreement with your divorce petition to the competent court - if the divorce is requested by mutual consent. If the divorce is at the request of one spouse, the court instead decides on the consequences of the divorce.
These consequences of divorce are regulated in a divorce agreement
A divorce always entails financial consequences for both partners and particularly affects the children. Therefore, both partners must agree on the following aspects in a divorce agreement:
- Division of marital assets (property settlement) according to Article 120 CC
- Post-marital alimony according to Article 125 CC
- Child support according to Article 277 CC
- Custody and visitation rights of the children according to Article 133 CC
- Residence of the family home according to Article 121 CC
- Equalization of occupational pension according to Article 122 et seq. CC
When and why is a divorce agreement recommended?
You can only submit a divorce agreement if you and your partner have mutually agreed to the divorce. Unlike the voluntary arrangements made in a divorce agreement, a unilateral divorce petition would result in the court deciding all ancillary consequences of the divorce. Rather than having these essential aspects of your life determined by third parties, a divorce agreement allows you to collaboratively find sustainable and forward-looking solutions for both of you.
A significant advantage of an amicable divorce is the considerable savings in time and costs. If you submit a complete and coherent divorce agreement at the initiation of the court proceedings, the court only needs to review it for fairness. Rarely does the court find contradictions, meaning you could potentially finalize the divorce within a month. However, the more decisions the court has to make, the higher the court and legal fees will be—not to mention the extended duration of the process.
Special Case: Partial Agreement
To initiate a divorce by mutual consent, you don't need to agree on every single consequence of the divorce. It is generally sufficient if both of you agree to the divorce. According to Article 112 CC, in such cases, you can submit a partial agreement specifying the points on which you couldn't reach an agreement. This is also known as an amicable divorce with partial settlement.
For a partial agreement, the court will propose solutions for the disputed points, which you can accept or reject. Even with this option, you typically save significantly more time and costs compared to a unilateral divorce petition.
How does the approval process for a divorce agreement work?
Even if you and your partner have agreed on all the consequences of the divorce, the divorce court must still review the agreement for fairness and compatibility with the child's or children's welfare (Art. 133 CC).
Ideally, you should submit your divorce agreement along with your divorce petition to the competent court. A joint court hearing will follow, where the judge will read through the agreement, review it point by point, and address any missing points (Art. 111 CC). If you have children, they will also be heard by the court, and the relevant points will be carefully examined for their compatibility with the child's welfare. The judge can approve the divorce agreement in its original form, approve it partially, or reject it. The divorce becomes legally binding with a favorable court ruling.
Reasons for Rejecting a Divorce Agreement
The most common reasons for rejecting a divorce agreement are:
- lllegal clauses or terms
- Significant inequality in the treatment of partners
- Provisions concerning the children are not in their best interest or welfare
However, the court has some discretion in these matters and evaluates each case individually, considering the specific circumstances. As long as your divorce agreement is legally compliant and equally represents the interests of both partners and the children, rejection is very unlikely. To minimize the risk of rejection, it is highly recommended to seek legal advice when drafting your divorce agreement.
Can I modify or revoke a divorce agreement?
Until the time of the hearing, you can request a change to your divorce agreement or revoke it entirely at any time and without giving reasons. A simple written statement to the competent court is sufficient for this. Under certain circumstances, changes may also be possible after the divorce agreement has been approved, such as the revision of maintenance payments according to Articles 129 and 286 CC.
What contents should be included in a divorce agreement?
By submitting a divorce petition, you and your partner declare your mutual intention to divorce. The purpose of the divorce agreement is to supplement this petition with specific regulations on the ancillary effects of the divorce. While you can generally customize and formulate divorce agreements according to your preferences, there are some essential points that should always be included:
- Personal details of both spouses: full names, dates of birth, addresses.
- Custody and visitation rights concerning children: Is there joint custody, or is sole custody granted to one parent? How are visitation times with the other parent arranged?
- Child support: Regulations on the maintenance costs to be borne by each parent and possible agreements on shared expenses.
- Post-marital maintenance: Regulations on post-marital maintenance payments to one partner.
- Division of assets: Legal division of marital assets and other material claims, depending on the marital property regime and individual agreements.
- Family home: Regulations on the retention or sale of the shared home or property.
- Pension equalization: Regulations on the division of occupational pension benefits between the spouses.
- Coverage of legal costs: Regulations on who will bear the legal costs of the divorce (for example, 50:50 or one partner covering all court costs).
What impact can legal counsel have on a divorce agreement?
A divorce agreement will not be automatically rejected just because you might have omitted a section. However, we always advise divorcing spouses to seek advice from a family law attorney before or during the entire process of drafting their divorce agreement. Reviewing your agreement before submission is also part of an attorney's services.
This has the obvious advantage of ensuring that you create a legally valid and compliant agreement, which can help keep the court hearing as brief as possible. Your chances of immediate approval also increase. Additionally, legal consultation ensures that the agreement is not drafted to your legal disadvantage.
FAQ: Divorce Agreement
A divorce agreement is a mutual declaration by both spouses regarding the ancillary effects of their divorce. It is usually submitted to the court along with the divorce petition.
You can only submit a divorce agreement if the divorce is initiated on a mutual basis. This is the sole condition. It is initially irrelevant whether you reach a comprehensive agreement on all divorce consequences or only a partial agreement.
After submitting the divorce agreement along with the petition to the court, a court hearing follows. During this hearing, the agreement is read, reviewed, and usually approved. If the agreement involves children, they are also heard by the court before the decision.
Generally, it is believed that voluntary and mutual decisions between divorcing spouses promise greater success for future implementation compared to court rulings. Additionally, a divorce agreement can save significant legal costs that would arise in a unilateral divorce petition. Usually, mutual divorces are also concluded quickly.
The only condition for a divorce agreement is the mutual intention to divorce. According to Article 112 CC, it is possible to submit a so-called partial agreement. In this case, you outline the aspects on which you could not agree. The court will then decide on these, as it would in a unilateral divorce petition.
A divorce agreement can be modified until the time of the court hearing. The same applies to a complete revocation of the divorce agreement. A simple written statement submitted to the court is sufficient for this.
To complete a divorce as quickly and smoothly as possible, it is advisable to seek family law advice from a lawyer before or during the drafting of your divorce agreement. Although not mandatory, this increases the likelihood that your application will be approved at the first hearing and that your interests will be adequately considered.