A divorce inevitably leads those involved to the responsible family court. Before this, in turn, all applicants are required to have a lawyer. As part of an amicable divorce case, however, is often enough only one spouse the divorce petitions a while the other agrees to this. As a result, it is usually sufficient to hire just one lawyer for divorce uncontested. But can he then act as a joint divorce lawyer for the spouses?
The most important things in a nutshell: Joint lawyer possible in the event of divorce?
- A joint lawyer is usually not possible in the event of separation or divorce.
- Lawyers may only legally represent one of the spouses involved, otherwise conflicts of interest would arise.
- Since no joint lawyer can be hired in the event of a divorce, it is also advisable for the defendant to seek their own legal advisor, at least for out-of-court advice.
Conflicting interests in the event of a divorce: Joint lawyer not possible!
Professional code of conduct for lawyers prohibits representation of competing parties
The professional code of every lawyer is based on the professional code of conduct for lawyers. In § 3, a general regulation is made which basically prevents a lawyer from acting for both parties in the event of a divorce:
“The lawyer may not take action if he has already advised or represented another party in the same legal matter in a conflicting interest or was involved in this legal matter in any other professionally.”
In the context of a divorce, the conflicting interests arise in particular from the numerous property disputes. Since a lawyer always works to obtain the best possible conditions for his own client, an objective representation of both parties willing to divorce is prevented. Only one of the spouses can appoint the divorce lawyer to represent, so that no joint lawyer can be appointed in the event of a divorce.
In the case of a mutual divorce, a lawyer is sufficient
From a legal point of view, it is de facto not possible for a joint lawyer to represent both spouses in the event of a divorce. The costs for the lawyer hired by one of the two can still be shared within the framework of a mutual divorce. To this end, the spouses usually make a cost-sharing agreement.
The advantage is that this can significantly reduce the costs of the divorce proceedings. However, there is no obligation to share costs, as the client has to pay for legal fees in family proceedings.
Nonetheless, the defendant should seek out-of-court legal advice even if there is mutual consent if he is unsure about his claims in the course of the divorce. The representation can then be limited to an advisory mandate, which usually causes lower costs than the judicial representation.
In case of separation, seek advice from a lawyer together
On the other hand, it can look different if the spouses concerned only take advantage of general advice, which in particular has information about the rights, obligations and claims that must be taken into account in the course of a divorce. At the latest, however, when it comes to essential content and detailed claims, only one spouse can appoint the lawyer to represent you in the divorce.
Prepare for divorce properly: structured entry into turbulent times
Separation and divorce can lead to chaotic ups and downs, and not just emotionally. The division of the previously closely linked lives can also demand a lot from the spouse. The regulations to be met are often difficult to understand for laypeople. In order to bring structure into the separation and divorce process, it is therefore always advisable to aim at a conscientious preparation for the divorce. But how exactly is that possible?
How can you properly prepare for divorce?
First step for legal laypersons: Legal advice
Family law contains numerous regulations, but also individual decisions that are difficult for a legal layperson to overlook. What are the entitlements in the context of the divorce? How can the property dispute be organized? What influence does the property regime have? Do both spouses need a lawyer? How long will the divorce proceedings take?
Questions after questions patter on the affected spouses, who neither the Internet nor the advice of friends and acquaintances can sufficiently clarify. For this reason, it is always advisable that both spouses seek appropriate preparation for the upcoming divorce from a divorce lawyer. This can initially explain in a very general way which claims to maintenance, profit, pension compensation, household effects etc. can arise in individual cases. This general information can then guide the further process of preparing for divorce, e.g.:
- List of common household items
- Clarification of the allocation of the marital home
- Questionnaire Versorgungsausgleich fill
- List of the gains acquired during the marriage
- Determination and evaluation of the possible maintenance claims
- Collection of personal documents
The spouses can make amicable decisions about most of the consequences of divorce, for example within the framework of a divorce consequences agreement. However, an overly one-sided burden on a spouse should be avoided in order not to impair the effectiveness of the relevant contracts.
Separation of table and bed as a condition for divorce
An important prerequisite for the divorce petition to be able to be filed is the breakdown of the marriage. A separation of the spouses for at least one year should provide proof of this. The spouses can prepare for the divorce during this period of separation.
The decisive factor for the beginning of the year of separation is the “separation of table and bed”,i.e., the dissolution of the marital union in economic and personal terms. The year of separation can also take place in the same house or apartment as long as the spouses live and sleep separately.
Since the separation is only possible if both spouses are informed about it, neither of the spouses can usually prepare for the divorce in secret. Corresponding divorce advice can be given by a lawyer before the official separation, but sooner or later the other spouse must be informed about the project in order to meet the requirements for divorce.
