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German Law/Divorce from US-American

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QUESTION: Hello, I am German and my husband is US-American who serves in the military. We got married '09 in Denmark and have been living in the U.S. since 2010 (we have one son together who is 3).
We've been thinking about divorce and my husband agrees on taking our son with me to move back to Germany.
My questions are:
Is it possible for me to travel back and file for divorce in Germany? If IT IS possible, I will have to hire a German attorney i assume, but does my husband have to hire one as well here in the States? (if we even agree on everything).
Do I have to travel back to the U.S. to appear in court etc. at some point?

A respond would be greatly appreciated, thank you!

Kathrin

ANSWER: Hello Kathrin,

if you all agree on everything (financial matters, alimony, child support, retirement benefits and so on), then you can file in either country and only the person who files will need an attorney. The respondent won't need to be represented by an attorney and also won't need to show up in person.

Let's hope it will stay that simple! It's the best way. Anything else just makes the lawyers rich.

I have put together some FAQ about the process of filing for divorce in Germany: http://andreasmoser.wordpress.com/2009/08/07/10-faq-on-divorce-in-germany/

Andreas Moser
www.moser-law.com
www.andreasmoser.wordpress.com

---------- FOLLOW-UP ----------

QUESTION: Thanks so much, that really helped!

One more question: Does the American divorce law apply in our case since we have been living longer in States than Germany after our wedding?

Thank you again!

Kathrin

Answer
Hello Kathrin,

the German court could apply the law of the US state where you last resided because it was your last joint residence. But then German courts often assume a so-called "renvoi" (a rather complicated instrument of international private law) which leads them to still apply German law in these cases.

The main difference in the two divorce laws is that German law requires one year of separation whereas most US states require much less separation time. But if you both agree on the divorce, you can just pretend that you have been separated for 1 year already. German law also accepts a separation within the same house or address.

The other difference is that US law does not provide for a separation of retirement benefits which makes an American divorce much quicker and easier. I have often successfully argued against a "renvoi" regarding retirement benefits splitting, so that the German courts applied German divorce law but did not require any information about both your retirement benefits.

Andreas Moser
www.moser-law.com
www.andreasmoser.wordpress.com

German Law

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Andreas Moser

Expertise

Extensive experience in international family law, especially international child abductions and child custody cases. All other areas of German law as well: constitutional law, criminal law, business and contract law, immigration law, inheritance law, and so on.

Experience

Lawyer in Germany from 2002 to 2009. Lawyer for US Army JAG Corps before. Bar-certified specialisation in family law and in administrative law. Articles and lectures about international and domestic family law.

Publications
www.andreasmoser.wordpress.com

Education/Credentials
2000 Law Degree from University of Regensburg, Germany 2002 admitted to the bar (until 2009) 2013 MA Philosophy at the Open University, UK

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