Separation of spouses

Amicable separation:

The simplest and most cost-effective option is to settle the separation by mutual agreement as part of a separation agreement. If the spouses not only agree to go their separate ways, but also agree on the individual consequences of living apart, they can dissolve the joint household without court proceedings.

The spouses must agree on the following points in particular as part of a separation agreement:

• Allocation of the family home and household effects
• Determination of monetary contributions between the spouses (spousal maintenance)
• Child matters (custody, visiting rights, child maintenance)

Disputed separation (matrimonial protection):

If the spouses are unable to agree on how to live apart or if one spouse refuses to find a solution, matrimonial protection proceedings must be initiated. Matrimonial protection proceedings are court proceedings in which the consequences of separation are settled at the request of one spouse, with the following measures being the main focus:

Allocation of the family home and household effects

If the spouses cannot agree on who should leave the home, the court will decide on the allocation of the home. The decisive factor is which spouse benefits more from the allocation of the home and which spouse can be expected to move out sooner. Normally, the spouse who is obliged to move out is given a short period of time (a few weeks or months).

Determination of monetary contributions between the spouses (spousal maintenance)

When the joint household is dissolved, the spouse who has no or only limited income often no longer has direct access to financial resources. The spouse who is exclusively or predominantly responsible for the household is therefore dependent on a sum of money.

The maintenance obligation is limited by the debtor's minimum subsistence level under debt enforcement law and the standard of living maintained during cohabitation. If the spouses were able to build up savings during the marriage, the extent to which the savings quota is covered by the additional costs incurred as a result of the separation must be examined. Although the previous division of tasks between the spouses is decisive in the initial phase, the court examines whether the spouse entitled to maintenance can take up or expand reasonable gainful employment after a reasonable transitional period.

Child matters (custody, visiting rights, child maintenance)

Custody:

The same criteria apply to the allocation of custody to a parent in matrimonial proceedings as in divorce proceedings.

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.

The dispute over which parent is awarded custody of the child has intensified in recent years. In order to protect the child from a conflict of loyalty between the parents, it is best to decide jointly on the issue of custody. If no agreement can be reached, the court decides on the custody arrangement, whereby the court bases its discretionary decision on the best interests of the child. The court takes into account criteria such as Parents' ability to raise the child; personal relationship with the child; continuity and stability; will of the child; ability to cooperate with the other parent; avoidance of separation of siblings, etc.).

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