Childcare & Rights of Access In The Case Of Separated Parents

Strengthens change model

After an uncontested divorce Las Vegas or separation, custody often remains with both parents. Nevertheless, it is the rule that care is provided according to the so-called residence model. This means the child lives with one parent and visits the other parent regularly. In its decision of February 1, 2017, the Federal Court of Justice made it clear that the so-called change model can also be enforced – even if one parent rejects it. With the change model, the child lives with both parents to a comparable extent despite separation or divorce. In other words: the place of residence is changed regularly.

The case of the Federal Board of Justice: one week with the father, one week with the mother

On the case decided by the Federal Court of Justice, decision of February 1st, 2017 – XII ZB 601/15. The father of a son wanted to see the child more often than at the agreed visiting times and pursued this goal in court. The BGH has now decided in the last instance that the switch model is a good option in this case. The change model is not excluded by the law and even a rejection of this model by a parent does not fundamentally prevent this regulation. The decisive criterion is the best interests of the child, which must be determined on a case-by-case basis.

However, an equal change model for visitation rights requires “the parents to be able to communicate and cooperate”. Therefore, a change model should not serve as a vehicle to create the parents’ ability to cooperate.

Therefore, the family court is obliged to clarify comprehensively “which form of contact best corresponds to the best interests of the child”. With this declaration, the matter was referred back to the responsible Higher Regional Court for further treatment and decision.

Visitation rights: exchange model yes, but…

The BGH points out that such a changeover model places significantly higher demands on the organization of all those involved. If the ex-partners are very much at odds, such a model will hardly be in the child’s interest. In addition, a change model for kindergarten or school children is only practicable if the parents live in the same city. In addition to parents and school, the circle of friends is also one of the most important environmental conditions for the well-being of a child.

According to this decision, the decisive factor is how the child would like to live. With increasing age, his wishes and ideas became more and more important. The court must therefore always hear the child personally.

The Federal Constitutional Court decides on a rejected change model

It’s not easy, because in the end the parents have to be able to clarify all the details with each other on a regular basis. And the constitutional complaint of another father, which is to be heard before the Federal Constitutional Court in 2017, shows that the issue of changing models for childcare is not finally off the table even with this judgment. He was previously denied the exchange model by a court.

Compensation of Gains: Honesty Is a Must

Divorce: Calculation of equalization of accrued gains only with comprehensive information

If married couples get divorced, the equalization of accrued gains for the marriage period is usually to be calculated. Since most marriages in the US are concluded with the statutory matrimonial property regime of the community of accrued gains. In order to calculate a fair distribution of assets in the end, it is naturally crucial that all relevant data and figures are disclosed. The Hamm Higher Regional Court states that the spouses have a corresponding obligation to provide information.

Each of the spouses can apply for the equalization of gains in the event of a divorce if the marriage was concluded according to the statutory matrimonial property regime – i.e. without a marriage contract. This regulates § 1363 Abs. 1 BGB. However, the compensation is only regulated by a court upon application. Since there may be high amounts in dispute (and thus legal and court costs), it is advisable to reach an amicable agreement before the divorce if possible.

Compensation of gains: what is it?

As a rule, the wealth of the spouses increases during the marriage period. It is irrelevant whether it is about bank balances, real estate, securities, your own company or insurance. Even reduced debt counts. In general, the gain for each spouse is defined as the difference between their final wealth at the time of the divorce and their initial wealth at the time of marriage. Now the law provides for the marital property regime of the community of gains stipulates that each spouse should share in half of the partner’s increase in assets. Since not all assets can be divided, the claim for equalization of gains is always based on a monetary payment. The two conflicting claims are offset in the process. The total assets must always be included in the calculation.

On the equalization of gains case of the OLG Hamm

In the present case, a couple had built a house on a plot of land. The husband was the owner of the associated property through a heritable building right. When the two spouses divorced after 13 years, both assumed in the accrued gains equalization procedure that the house – or its current value – would be taken into account equally for both of them. Based on the remaining wealth difference, an agreement was reached and the husband paid the wife $15,000 in compensation.

Only after the process was completed did the woman find out that the man was always the sole owner of the heritable building right – and thus of the house. The husband became aware of this during the ongoing divorce proceedings, but did not communicate this. On the basis of this change in ownership, the woman wanted the accrual equalization procedure to be continued with an increased equalization payment. The family court denied this. The Higher Regional Court of Hamm was subsequently asked to appeal.

Conclusion on gain compensation

The OLG Hamm (Az: 3 UF 47/15) found in its decision that the husband was obliged to disclose this new knowledge about the actual ownership structure without being asked, because he was aware that by concealing his ex-wife financially disadvantaged.

Such problems can be avoided by those who conclude a marriage contract at the time of marriage or choose the separation of property as their property regime.