Contested divorce (divorce by petition)

If mediation or attempts at mediation do not lead to an agreement and the interests of both parties prove to be irreconcilable, the only option is to go to court. We will assist you throughout the entire process, represent you effectively in court and stand up for your interests in all disputed matters.

Allocation of the family home

The spouse who is dependent on the home (e.g. because of the children) can apply for the court to transfer the rights and obligations arising from the tenancy agreement to him or her alone, provided this can be reasonably expected of the other spouse. It is irrelevant which of the spouses is the tenant of the apartment. If the apartment is owned by one of the spouses, the judge can grant the spouse a temporary right of residence under the same conditions.

Child matters (custody, care, visiting rights, child maintenance)

Custody

In almost every second divorce, minor children are involved, for whom a divorce of the parents not only leads to the loss of the previous family structure, but often to a great emotional burden and far-reaching changes. For this reason, the children's interests are not merely a private matter for the parents, but the court is obliged to investigate the matter ex officio. The first issue to be settled is parental custody:  

Parental care is the right and duty to make decisions for the child where they are not yet able to do so themselves. Whoever has parental custody decides, for example, on the child's choice of school and profession, religious upbringing and medical interventions. Parental custody also includes the right to determine the child's place of residence or to move with the child to another location. After divorce, parents generally retain joint parental custody of their minor children. Only if it is necessary to safeguard the best interests of the child is one parent given sole parental custody. For example, if one parent is unable or unwilling to take serious care of the child.

Fact sheet on joint parental custody:

Fact-sheet-introduction-of-joint-parental-care-as-a-rule-case.pdf

Custody

Custody is about the day-to-day care of the child and the associated care and upbringing as well as the right to live with the child. Different care models are conceivable:

• sole custody: if the child lives predominantly in the household of one parent, the other parent is only entitled to visitation and vacation rights;
• Alternating/shared custody: in the case of alternating custody, the parents are significantly involved in the care of the child, although it is not necessary for the child to spend exactly half of the time with each parent.

Since 2017, it has been enshrined in law that the court examines the possibility of alternating custody if the mother and father share parental custody and one parent or the child requests it.

Disputes over the allocation of custody have increased in recent years. This makes it all the more important that parents do not lose sight of the child's welfare, despite possible mental and emotional disruption.

For more information on the difference between parental care and custody:

https://www.gerichte-zh.ch/themen/ehe-und-familie/kinder/elternrechte-pflichten/elterliche-obhut.html

Visiting rights

Maintaining the relationship between the child and the parents is of great importance for the child's development. The Federal Supreme Court has repeatedly emphasized the value of the child's relationship with both parents and their role in the child's identity development. The courts and authorities therefore encourage contact wherever this is in the child's best interests.

The parent concerned not only has the right to personal contact with their child, but also the duty to exercise this right.

The best interests of the child are the yardstick for the question of how visiting rights are structured. Various elements are taken into account: The relationship between the child and the parent with visitation rights, the personality and needs of the child and the parent with visitation rights, the age and wishes of the child, the distance between the parents' places of residence, the working hours of the parent with visitation rights, the relationship between the parents, reasons for excluding a risk to the child's welfare, etc.

Child maintenance

Depending on their financial means, the parents are responsible for the maintenance of the minor child. In principle, both parents contribute to the care, upbringing and financial support of the child, each to the best of their ability.

As soon as the parents are separated, it becomes relevant which parent has to pay which amount of money to the other parent for the child.  

Cash maintenance is based on the child's needs as well as the parents' position in life and ability to pay. This not only covers basic needs such as food, clothing, housing and health insurance, but the child also participates in the parents' ability to pay and their position in life.

For the calculation of cash maintenance, the decisive factor is which share of care is assumed by which parent, whereby the following applies in principle:

In the case of sole custody, the parent entitled to custody already pays their maintenance contribution in kind by looking after the child, which means that the other parent is responsible for the cash maintenance.

In the case of alternating custody and equal shares of care, the maintenance contribution is based on the parents' ability to pay.

Childcare maintenance is also part of child maintenance. Childcare maintenance covers the (indirect) costs that a parent incurs as a result of not being able to earn a living by personally caring for the child.

For more information on child maintenance, see our magazine

post-marital maintenance

A spouse is entitled to post-marital maintenance if he or she cannot reasonably be expected to provide for his or her own reasonable maintenance, including adequate retirement provision.

The following criteria in particular must be taken into account when determining whether a maintenance contribution is to be paid and, if so, in what amount and for how long: the division of responsibilities during the marriage; the duration of the marriage; the marital status during the marriage; the age and health of the spouses; the income and assets of the spouses; the extent and duration of childcare to be provided by the spouses; the professional training and employment prospects of the spouses as well as the presumed costs for the professional integration of the entitled person; entitlements under the AHV or occupational pension scheme.

In recent years, maintenance law has been very much characterized by dynamic developments and is still associated with a certain degree of legal uncertainty for potential maintenance claimants, as there is still no established court practice. What is certain is that a long marriage or joint children do not automatically give rise to a claim for post-marital maintenance.  

In order to determine post-marital maintenance, it must first be examined whether the marriage is to be classified as life-defining. If this is the case, both parties are entitled to the continuation of their previous standard of living after the divorce. If the marriage was not life-defining, the spouses are placed in the same financial position as if the marriage had never existed.

Until recently, a marriage was considered to have a life imprint if children were born of the marriage or if the marriage lasted more than ten years. Today, however, the question of whether a marriage is life-shaping is examined on a case-by-case basis. The marriage is considered to have shaped the life of the spouse if the marriage has had a lasting influence on the economic situation of the spouse entitled to maintenance. In other words, the decisive factor is whether gainful employment and thus economic independence has been given up in favor of running the household and caring for the joint children and whether it is no longer possible for the spouse, after many years of marriage, to resume their previous professional position or pursue similar gainful employment.  

The affirmation of a life-defining marriage does not automatically lead to an entitlement to post-marital maintenance. Rather, the spouse is obliged to integrate into the labor market or to expand existing gainful employment. A spouse is only entitled to post-marital maintenance if he or she is unable to provide for his or her own reasonable maintenance despite his or her best efforts. However, even if an entitlement exists, the duration of maintenance may be limited.

Division of assets (property settlement)

In the context of the property settlement to be carried out upon dissolution of the marriage, it is essential whether the spouses have concluded a marriage contract. Today, the participation in acquired property applies to the vast majority of married couples and applies if the spouses have not agreed a different matrimonial property regime by means of a marriage contract or if the extraordinary matrimonial property regime of separation of property has not occurred.

In the case of participation in acquired property, the marital property must be divided. A distinction must be made between separate property and acquired property. Own property is property that is not to be divided with the other spouse. Own property includes all assets that are exclusively for the personal use of one spouse, assets that one spouse has brought into the marriage or that have subsequently accrued to him or her by inheritance or otherwise free of charge, as well as replacement purchases for own property. However, unless otherwise agreed, the income from personal property is included in the marital estate and must be taken into account in the event of divorce. Inheritance includes those assets that a spouse acquires against payment during the marriage. Assets that do not qualify as separate property under the law or marriage contract are deemed to be acquired property.

Property (real estate) acquired during the marriage often presents a particular challenge. Just because both spouses own the property does not mean that they are entitled to half of the profit in the event of divorce. Rather, the question depends on the form of ownership, the matrimonial property regime and the means with which the property was acquired. The spouses must also consider whether they wish to keep the property jointly, transfer it to one spouse or sell it. In this context, the market value of the property must also be determined and, in the event of disagreement, the market value must be determined by means of a court appraisal.

The situation is also complex if one spouse has a business. Among other things, it must be examined to which asset class the company, the salary and the company profit are to be allocated and to which asset class the increase in value (industrial, economic added value) is to be allocated.

For more information on the company in a divorce, see our magazine.

Occupational benefits

Most divorces take place at a time when no insured event has yet occurred, which means that each spouse is entitled to half of the other spouse's termination benefits to be determined for the duration of the marriage. This only concerns the second pillar and not the first or third pillar. The capital accumulated in the third pillar is divided in accordance with the provisions of matrimonial property law. Under limited conditions, the division of half of the vested benefits may be waived.