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FAQ - Frequently Asked Questions
I have noticed that I receive many e-mails with the same questions, so I have started to post the most frequent questions - and of course the answers to them - for everyone to read for free. As this section might already answer many of your questions, I invite you to browse these FAQ before you contact me (or any other lawyer) about your case.FAQ on international child abduction
FAQ on working with me as your lawyer
These FAQ are copyrighted. However, you are free to send them to a friend, family member or colleague if you think that they might be of help or interest to somebody. Actually, I have put all these FAQ on one long page, so that you can easily print them out as one file and read them on the train or at the beach or pass them on to somebody who might benefit from them. If you have a website or another publication and would like to publish part of these FAQ, please ask me before.
CAVEAT: In a complicated legal field like international family law, there are thousands of possible constellations. It would be impossible to word these FAQ in a way that they would fit for all scenarios. These FAQ were written with "standard" cases in mind that constitute the large part of requests that I receive. They might not be applicable in unusually complex cases.
To find out where your case is on the complexity scale, some common sense will help: If you are two foreign nationals who moved to Germany, or you are a foreign national married to a German citizen, these FAQ should give you some pretty good guidance. If on the other hand, you are a dual citizen of Ecuador and the USA and got married in Cyprus to a dual citizen of Germany and Israel after you signed a prenuptial agreement in Switzerland which also governs the fate of your corporations in Russia and Turkmenistan and you have two children in school in Australia plus an adopted child from Zambia, you know that these FAQ cannot possibly address your case.
1. We did not get married in Germany. Can we get a divorce in Germany or do we need to return to the country of marriage?
As long as you have some ties to Germany, whether it be residence or citizenship, you can file for divorce in Germany. You do NOT need to return to Las Vegas, Denmark or wherever you might have gotten married. - Although it might of course be a good excuse to do so if you got married in Fiji, for example.
2. We are both non-German citizens. Can we get a divorce in Germany?
Yes. As long as one of you has residence in Germany for at least a year, or both of you have residence in Germany at the moment, the German court will accept your divorce case.
However, if you are both foreigners, the German court might apply the divorce law of your home country. This is actually often quite an interesting option, because you can use your home country's law without having to go back or having to undergo the court process in your home country.3. Will my home country recognize the German divorce?
That depends on your home country of course. But if minimum requirements of due process are kept (such as giving the other party time to respond and letting them know of the court date in due time), most countries do fully recognize German divorces and other court orders.
4. What are the requirements to get a divorce in Germany?
If the court applies German law, you only need to show that you have been separated for one year. You do not need to explain why the marriage broke up or why you separated. This one year separation requirement can also be met if you still live at the same address. You are just not supposed to sleep in the same bed or engage in too many joint activities.
This also enables a couple who both want a quicker divorce to file way before the one year of separation is fulfilled by just claiming that they have been separated for one year. If both spouses stick to the story, the court is not going to find out about it and will grant the divorce.5. I am not yet separated for one year and my spouse won't cooperate, but I still want a quicker divorce. Any chance?
There might be a chance, but it's not easy: We could either try to convince the German court to use the law of your home country or the country of your last residence, which might not have the one year separation requirement. Or you could try to argue that remaining married poses an undue hardship on you. The courts only accept this argument if your spouse has committed criminal acts against you or is constantly harassing or cheating on you. Usually then, these cases become so messy that the court process takes over a year and you might as well have waited.
6. How long does a divorce proceeding take in Germany?
If both of you live in Germany and you have only the divorce (no custody, no financial claims), it usually takes between 4 and 6 months. If you argue about custody and visitation for your children, about child support and alimony, about your house and your retirement, it might easily take a few years.
If your spouse lives in another country, getting him or her served is the things that drags it out. This could mean another one or two months if we need to get somebody served in the EU or in North America, or up to a year if you need to get somebody served in Kazakhstan.7. Do we both need an attorney?
No, only the filing party needs an attorney. The respondent does not necessarily need an attorney if it's an amicable divorce.
Sometimes, spouses even come in together to see me to take care of their amicable divorce. No other attorney is needed in these scenarios and you save quite some money.8. Can I file for divorce without knowing where my spouse lives?
Yes, but we would need to show to the court that we have done everything reasonable in our power to locate him or her, e.g. by researching public records, by calling or e-mailing relatives, friends, former co-workers of your spouse. If all of this will yield no result, you can still get a divorce.
9. I would like to have an annulment instead of a divorce.
You would need to have a very good reason for that: Either you found out that your spouse is already married to somebody else. Or you can prove that your spouse lied to you or failed to disclose important things that would have prevented you from getting married to him or her, had you known about them (e.g. your spouse has a lethal sexually transmittable disease and did not tell you).
Without very good reasons (and the evidence to support them), it's virtually impossible to get an annulment from a German court.10. How soon after a divorce can I get married again?
Whenever I hear that question, I would like to ask "Didn't you learn a thing from the last relationship? Why don't you enjoy single life for a while?". But the client is king, and no question remains unanswered: After the court grants the divorce, both spouses still have one month to appeal. Unless both of you waive their right to an appeal at the divorce hearing, you will have to wait this one month before you can get married again.
FAQ on international child abduction
1. What is an international child abduction?
The removal of a minor child from one country to another country without the (other) parent's consent constitutes an international child abduction. It usually happens when parents who are from different countries split up and one parent wants to go back to his/her home country and takes the child with him/her.
It also constitutes an international child abduction if the other parent allows you to take the child to another country (usually for a holiday) and you then decide to not return the child to the country of the last residence after the agreed stay is over.2. What is the remedy against an international child abduction?
If both countries are member states of the Hague Convention on Civil Aspects of International Child Abduction, then you can request the return of the abducted child within one year of the abduction or retention.
3. What do I need to prove for a successful return of my child?
You need to prove that (1) you have at least shared custody for the child, (2) that you have been exercising that custody, e.g. by living in the same house with the child, or also by having regular visitation with the child if you live separated from it, (3) your child had established residence in your country by living there for at least a few months, (4) the other parent either abducted the child to another country or overstayed an agreed visit to another country without your consent.
4. Should I get the police involved?
In a regular case, I would recommend against it. Law enforcement won't bring your child back without a court order and if you know where your child is staying there is nothing what you need law enforcement for. It usually only adds to the tensions between the parents, which is the last thing that you need.
5. How should I react once I find out that my (ex-)partner abducted our child to another country?
Find a lawyer in that specific country who has experience with child abductions. In Germany, you can of course contact me. For other countries, you can either look at the website of www.reunite.org or contact your Central Authority under the Hague Convention.
You should file for the return of your child as soon as possible to prevent any impression that you are giving consent to the abduction by tolerating it. You should also avoid any other behavior that could be construed or interpreted as consent, e.g. helping the other parent to get settled in the other country, sending money or personal items, working out a visitation schedule for contacts with the child in the other country, discussing which school the child should attend in the other country, etc.
At any step, you should make clear that you won't accept the retention of the child in the other country.6. Once I file for the return of my child, how long will it take?
Germany has vowed that child abduction proceedings in its courts should not take longer than 6 weeks, and that timeline is usually met.
7. Will I need to submit evidence about who is the better parent?
No. The child abduction proceeding under the Hague Convention is NO child custody proceeding. It does not matter who is the better parent or who spends more time with the child or anything like this. It is just a dispute about the country in which the child should live. The courts of this country will subsequently have to deal with any arguments about custody, visitation, child support, etc.
One exception to this is if there is a severe physical threat to the child if it were returned to its home country. This is a very rare exception however, which is only met if the parent asking for the return of the child is a homeless alcoholic or something of similar gravity.
8. What happens after I win the return of my child?
As the decision is not a custody decision, the abducting parent is free to return to your country with the child that he/she had abducted. You therefore do not necessarily win physical custody for your child.
All of this needs to be sorted out in a court in your country. Most abduction cases are actually followed by cases for child custody and visitation very swiftly after the return of the child.9. How do I prevent a child abduction if I fear that one will happen?
If a passport is needed for the child to travel (which is not the case between many European countries), then you could of course try to hold on to the passport.
If you have very specific reasons to believe that a child abduction is upcoming (e.g. you found one-way tickets that your spouse booked, or your spouse transferred all his/her money to another country and quit his/her job), you could also get a court order in your country that specifically does not allow any travel with the child, that requires the deposit of any passports with the court or police, or that alarms the border and airport authorities that this child should not be allowed to travel.10. Which countries are member states of the Hague Convention?
A current list can be found here: www.hcch.net/index_en.php?act=conventions.status&cid=24
FAQ on citizenship law in Germany
1. Does Germany have a system of ius sanguinis or ius soli?
Germany has traditionally always been a ius sanguinis country, meaning that citizenship is passed on to the next generation by birth, irrespective of the place of birth. Only recently (1999) has the law been amended to incorporate ius soli, giving German citizenship to a child born in Germany to two parents of foreign citizenship. I will explain these different ways of obtaining citizenship in more detail below.
2. Does ius sanguinis mean that I am entitled to German citizenship if I have German great-great-grandparents, even if they left Germany generations ago?
Possibly, but not automatically. You are a German citizen under ius sanguinis if your ancestors had German citizenship at the time of the birth of the next generation and passed on this citizenship respectively. It is therefore necessary to find out the exact timeline of events to determine if your ancestors might have lost their German citizenship (e.g. by giving it up voluntarily, or by accepting a foreign citizenship) or if they still had it and could thus pass it on. You see that this requires a lot of research into your family history and into the respective laws of the relevant points in time. But if you are lucky, you might have German citizenship even if your parents never knew about it and neither you or them have ever been to Germany or even have a German passport.
3. Is there any chance to obtain German citizenship for someone without German ancestors?
Yes. You can become a German citizen trough the ius soli option (more about this below), through adoption by a German citizen and through naturalization. Please note that German citizenship cannot be obtained through marriage with a German citizen, although this does increase your chances of naturalization.
4. So what is the ius soli component of German citizenship law?
Ius soli means the acquiring of a citizenship based on being born in a country's territory. Germany's ius soli law is much less far-reaching than that of the USA for example. Since 2000, a child born to foreign parents in Germany is born a German citizen if at least one of its parents has been a legal resident of Germany for at least 8 years and has a permanent residence status (§ 4 III StAG). Because these children usually also receive the citizenship(s) of their parents, they will have dual or triple citizenship. German law requires these children to decide which citizenship they want to keep after they turn 18 and before they turn 23 (§ 29 StAG). I doubt if this is in accordance with rights bestowed by the Constitution, but these cases have not reached the Supreme Court yet.
5. Does German law allow dual citizenship?
Germany disapproves of dual citizenship, but cannot completely prevent it, especially in cases where only one parent is German and the child receives two different citizenships at the moment of its birth. In these cases, both citizenships are of equal standing and nobody could be forced to give up one of them. In cases of naturalization however, Germany requires the foreigner to give up his or her original citizenship in order to obtain a German passport (§§ 9 I Nr. 1; 10 I Nr. 4 StAG). There are quite a number of exceptions to this requirement (§ 12 StAG), for example if your home country does not allow you to renounce citizenship, or if the loss of your original citizenship would result in the loss of economic rights in your home country, and for all citizens of another EU country.
6. How long do I have to live in Germany before I can get a German passport?
There is no mininum residency requirement. However, as integration into German society is one of the requirements for naturalization, most immigration authorities demand that you have lived in Germany for a few years. For the spouse of a German citizen, this requirement is usually 3 years (of which you need to have been married for the last 2 years). For other foreigners, it is anything between 3 and 8 years. After 8 years of residence, a German passport can no longer be denied, you have acquired an entitlement to it (if you fulfill the other requirements, e.g. German language skills, no criminal record, no dependency on welfare).
7. Is it possible to obtain German citizenship although I don't live in Germany?
Yes. § 14 StAG opens this possibility if you can show that you have close ties to Germany despite your residence in another country.
8. How do you lose German citizenship?
There are several ways how German citizenship can be lost (§ 17 StAG): The main cases are applying for another citizenship, renouncing German citizenship if this does not render you stateless (§ 26 StAG) and adoption by a foreign parent (§ 27 StAG).
9. Are there special rules for victims of the Nazi-regime and descendants of these victims?
Yes, and this is fair because the Nazis stripped a number of Germans of their citizenship for political, racist and anti-Semitic reasons. These former German citizens or their descendants have a right to have their German citizenship reinstated (Art. 116 II GG).
10. If I don't fulfil any of the legal requirements, is there still a chance for me to get a German passport?
Do you play football very well?
1. Which law applies in international cases?
Germany applies the law of the citizenship of the deceased (Art. 25 I EGBGB), does however allow you to choose German law for real estate within Germany (Art. 25 II EGBGB).
2. Who inherits under German law if I have no will?
That depends on your family situation. If you have one surviving spouse and two children for example, the spouse will receive 50 % and the children will receive 25 % each. If you are single without children, your parents will inherit 50 % each. The more complicated your family situation, the more complicated the distribution.
3. I don’t like these quotas. Can I determine who gets the house, the car, my books and the dog?
Yes, you can. You will need to write a will for this purpose.
4. And how do I write a will?
The two main forms are the notarized will (which requires a notary public of course) and the privately written will. They have equal validity.
The privately written testament has to be written by hand (no typing), signed and dated (§ 2247 BGB).5. Can I change my will later?
Of course. You do this either by destroying it (if there is only one copy) or by writing a new one in which you include the explicit remark that this new will supersedes the old one. If you have filed your will with a notary public, you need to ask him to hand you the original testament back.
6. Can I disinherit my children / can my parents disinherit me?
German law has a system of “forced heirship” (§ 2303 BGB) which means that children, parents and the spouse are entitled to a certain minimum of the estate even if they are disinherited. So yes, you can express your wish to disinherit someone in your will, but he/she will still receive a legal minimum. Only in cases of gross misconduct on the part of the potential heir towards the deceased is it possible to exclude them completely (§ 2333 BGB).
7. If I have been disinherited, can I contest the will?
Yes, you can (§ 2078 BGB).
8. What if I don’t want to inherit?
If you don’t want to inherit (for example if the estate includes more debts than assets), you can refuse to accept the inheritance. However, you need to explicitly declare that you reject the inheritance within 6 weeks of your knowledge of the inheritance (§ 1944 I, II BGB). If you live outside of Germany, this limitation period is 6 months (§ 1944 III BGB).
9. Does Germany tax inheritance?
You bet. The tax rate depends on the amount inherited and on how closely related you were to the deceased. As a child, for example, 400.000 EUR are tax free. Above this threshold, the tax rate progresses from 7 % to 30 %. The maximum tax rate (for non-related heirs) is 50 %.
10. Who inherits if there are no relatives at all and no will has been made?
Guess who? Exactly: the state in which the deceased had his last residence will inherit everything (§ 1936 BGB).
1. Is it true that you are on sabbatical?
Yes. I took a break from lawyering in August 2009 after having worked as a lawyer for 7 years. I wanted to pursue some of my other interests and to lead a more relaxed life, so I returned to university to study Philosophy and Development & Economics.
2. When will you be back?
Initially I had planned to take a break of a year. But now I really enjoy studying and I don't miss the stress of work at all, so I don't know when I will be back.
3. Is there no chance you can help me with my question?
Honestly, the chance is small. With studying for two degrees and trying to enjoy life, I just have to ignore most e-mails and calls that I receive (there are still dozens every week). So you'll be very lucky if you hear from me!
There are two ways you can try to tap my knowledge: I answer some questions for free on All Experts (see question no. 4) and sometimes, very rarely, I might do some extra work for really nice people (see question no. 6 et seq.)
4. What do I have to do to get my question answered for free?
I am one of the experts for German Law on All Experts. You go to this website: www.allexperts.com/ep/1364-118581/German-Law/Andreas-Moser.htm and click on "Ask a Question".
Please note that I answer a maximum of one question per day. If you fail to read through these FAQs or my previously answered questions on All Experts and ask a very basic or repetitive question, I might decline to answer your question. I also won't answer questions marked as "private" because the purpose of that website is to educate the public and others who might be in a similar situation to yours.
5. How can I thank you adequately for this free service?
I have a wishlist of books: www.andreasmoser.wordpress.com/books-my-wishlist/ . Cigars are also much appreciated.
6. Would you also be available for more individual questions or more legal help?
I might. My priorities are on my studies, so I don't have much spare time. But from time to time, I will accept a case on a freelance basis.
Please note that I am currently not admitted to the bar as an attorney, so I cannot officially represent you in most court cases. I can of course give general advice, strategic advice, draft letters and briefs, perform legal research and legal translations.
7. Do you charge for this?
Of course. For an initial consultation, whether by phone, e-mail or in person, I charge 150 € or the equivalent in your currency. The easiest way to pay is through PayPal.
The consultation will be thorough and in-depth. It will draw not only on my legal knowledge but also on my vast trial and strategic experience. I will take a few hours of my time to answer all of your questions.
If we decide to proceed together after the initial consultation, we will agree on the fees for that.
8. How can I contact you?
The best way is to send an e-mail to moser@moser-law.com and provide a detailed account of your situation, preferably pointing out that you have already read these FAQ and haven't found the answer therein. You can also contact me on skype at "andreas_lawyer".
9. Can you recommend any other lawyer in Germany?
No, unfortunately not.
(C) Andreas Moser. www-moser-law.com. moser@moser-law.com.