Amicable divorce: we seek joint counsel – is that possible?

It is not uncommon for a lawyer to be confronted with the question of a joint attorney for the divorce. The understandable wish to keep the costs of a divorce as low as possible plays a role here, because one agrees on everything and jointly strives for an amicable (consensual) divorce.

An amicable divorce with a joint lawyer – it is not possible!

The lawyer is the representative of the interests of one of the parties in the proceedings, i.e. in the case of a divorce, the representative of the interests on the side of the petitioner or on the side of the respondent. This division of roles regulated by the legislator leads to the fact that a lawyer who in advance z.B. As a mediator has attempted to bring the interests of both parties together, is prevented from later representing one of those parties against the other in this matter, or even beyond it. In the case of a divorce or other family law matters, spouses have fundamentally conflicting interests, at least from a legal point of view. The higher maintenance claim of one leads to a higher burden on the other spouse. The renunciation may bring disadvantages to one, which the lawyer would have to inform about, and the other spouse would not be happy about it. The timing of filing for divorce may give one spouse an advantage, etc. The agreement in a divorce could therefore be based on the fact that one or both parties do not know their rights and therefore do not exercise them. Regardless of this, there is often the desire – with the argument of cost savings in the sense of a cheap divorce – to seek and hire a lawyer together. It is not certain whether this is always driven by the idea that the interests of both spouses are safeguarded by a commissioned lawyer. It can also be a feint to prevent the spouse from seeking his or her own advice. It should therefore be clear to you: The assigned lawyer is exclusively obligated to the spouse who has assigned him/her (signature on the power of attorney). If your partner insists on hiring only one lawyer, you hire the lawyer, then your protection of interests is secured.

An amicable divorce with one lawyer – it is possible?

  1. The marriage is short (less than three years of marriage) and childless, both parties have earned and accrued pension rights at about the same rate throughout the marriage, are young and healthy, in employment and able to support themselves, there is agreement on the division of household goods, there are no assets or they have developed equally for both parties. There is agreement on the repayment of any marital debts.
  2. The marriage period lasts longer than three years, during the marriage period the spouses earned different amounts of money and therefore acquired pension rights in different amounts, but since the separation the spouses have earned about the same amount, there is certainly no increase in assets for either party, any children are already out of the house and no longer have any maintenance claims against their parents. In addition, both parties are healthy, able to support themselves and are not permanently dependent on state assistance in the event of divorce. There is agreement on the repayment of any marital debts.
  3. Neither party wants to claim any rights from the other party in case of divorce of the childless marriage, even if such rights would be given. In addition, both parties are able to support themselves and are not permanently dependent on state assistance in the event of divorce. There is agreement on the repayment of any marital debts.
  4. The separation took place several years ago, the marital home has already been abandoned, each party provides for himself or herself, is not dependent on state support, and – even if there were still unknown claims – does not want to make a claim against the other party. There is agreement on the repayment of any marital debts.
  5. The spouses have already settled all legal consequences in the event of a divorce in a notarized separation and divorce agreement, and the agreement stands up to judicial review.

But even in these cases it can be disadvantageous not to be represented by a lawyer yourself. A lawyer versed in family law will always recommend applying for a divorce themselves if the other side applies for a divorce of the marriage. This prevents the other party from simply ending the ongoing divorce proceedings by withdrawing his or her petition. In fact, if the conditions for a divorce are met, this can be very important from various points of view. If you as a defendant are not represented by a lawyer, you cannot effectively make this request and thus cannot prevent a unilateral termination of the proceedings. By withdrawing the petition, z.B. The so-called cut-off dates for calculations for gain or pension equalization are manipulated.

In most other constellations, of course, you can consider together to save the cost of a lawyer. In any case, you should ask yourself at whose expense you are trying to save money. Make sure that the lawyer is instructed by you, and you can agree to it, because your interests will then be represented by a lawyer. The party not represented by an attorney should be aware that he or she is not, in fact, being advised or represented by an attorney. The lawyer hired by one spouse cannot and in any case must not (co-)represent the interests of the other spouse.

The reason for this can be briefly illustrated with just one example: According to the law, in the case of a marriage period of up to three years, pension equalization in the event of divorce only takes place if one spouse applies for it to be carried out, Section 3 VersAusglG. If the lawyer represents the person who has earned considerably more during this period and has therefore acquired considerably higher pension entitlements, he will recommend that he does not file an application for the implementation of the pension equalization. He will also recommend that the application for divorce be filed even quickly enough that the three years of marriage are not reached. Conversely, he will advise his client to apply for the implementation of the pension equalization if the latter is the one who earns considerably less and has therefore probably acquired considerably less in pension entitlements. The example shows that the lawyer can already get into a conflict of interest in a case that seems to be simple, i.e. objectively he cannot advise and act in the economic interest of both parties. Therefore the lawyer is a representative of one party and it is important that in case of doubt you are the one who is represented by a lawyer.

Conclusion: In any case, let yourself be represented by a lawyer!

Representation by an attorney gives you the security of being informed of your rights, being able to assert them, and being adequately represented when claims are alleged or asserted by the other side. As a rule, it is always advisable for the economically weaker spouse to be represented by a lawyer, if necessary by claiming legal aid.

Is the divorce cheaper with only one lawyer?

The divorce is cheaper only if both parties share the costs of the divorce proceedings (court costs) and the costs for the one lawyer (although the lawyer represents only one party). If the lawyer's fees are not shared, the divorce is cheaper only for the person who does not hire a lawyer. Whether the party not represented by a lawyer (with and without participation in the costs of the other party's lawyer) really gets off more favorably is then a question of whether and in what amount claims are given that were not asserted in this way.

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