Divorce Contract: The Child Does Not Want To Go To the Mother

The Higher Regional Court has ruled on a case in which a child does not want to spend the night with its mother who is living separately (Ref.: 9 UF 8/15). Ultimately, the child’s wish is paramount.

Child does not want to go to mother

The present case concerned a separated couple from whose relationship a son was born. Shortly after the child was born in 2007, the parents separated. The son has lived with his father since 2012 and rarely saw his mother. In 2014 there was no longer any contact with the mother, who, however, wanted to enforce a contact arrangement again the following year, under which the child should also spend the night with her. Although the now eight-year-old son was generally interested in meeting his mother again, he definitely didn’t want to spend the night with her.

Courts also have to deal with cases that tend to shake heads. After the longer phase in which the mother did not see her son and probably did not really want to, she applied to the court for regular weekend visits with a frequency of two weeks. However, the child refused, saying that it did not want to stay overnight with its mother. The Higher Regional Court now agreed with the child in the second instance. The wishes of the child must always be listened to and taken into account. This already regulates § 159. According to this, children under the age of 14 must also be heard “… if the inclinations, ties or the will of the child are important for the decision or if a personal hearing is indicated for other reasons.”

A contact regulation without overnight stay must be justified. Because a right of contact without an overnight stay also excludes contact or a trip during the holidays.

Decision of the Higher Regional Court on the right of contact with children

The Higher Regional Court rejected the mother’s complaint and justified the decision by saying that the child had refused the overnight stay for a long time and at the hearing. So far, the child has only stayed with the mother once and the contact was even broken off in 2014.

The child does not want to go to its mother

When hearing (small) children, it is not always easy for a court to determine what the child’s actual wishes are, because it is not uncommon for children to be overwhelmed and sometimes influenced in this situation. Therefore, what a child says is not always what it wants to say. The guiding principle of another judgment concludes: “If a child has verbally expressed that it does not want to have contact with the child’s father, but there are indications of a conflicting will, the family court must investigate the true will of the child and obtain an expert opinion.”

In order to avoid such unspeakable quarrels, the parents concerned should think twice about whom they are taking such decisions – against the will of the child! Harm and who will benefit from it. The court is concerned with the best interests of the child. And so should parents!

Separation: Dissolve Joint Contracts

Canceling joint contracts during a separation or divorce is a complicated matter. Separation is usually a difficult step for those involved and an emotionally charged time. Nevertheless, the spouses should not forget that a large number of contracts and liabilities have to be reorganized. From insurance to bank power of attorney to rental contracts, there are numerous “construction sites” that should be processed quickly.

The year of separation is not just the time of physical separation to confirm that a marriage has broken down. It also allows the spouses to arrange many things in advance of the divorce. The more things are clarified in advance, the easier and faster the divorce can be. Important information first: All contracts that the spouses have concluded together continue to apply unchanged. This also means that they must be observed unconditionally!

It is best if the spouses – possibly with the support of a lawyer – manage to clarify all these obligations together and decide how these things should be regulated in the future. A notarized separation and divorce uncontested agreement is helpful.

Cancel shared living quarters

The end of a marriage is usually associated with a physical separation. If both partners have signed the rental contract, the following applies: Even if one of the partners moves out of the apartment, he remains the contractual tenant. He is therefore still liable for rent and any claims for damages. Therefore, the partner remaining in the marital home can claim the proportionate rent payment from the partner who has moved out. If the divorce is final at a later date, the spouse who has moved out is no longer obliged to pay (Hamm Higher Regional Court (Az.: 12 F 170/15).

If there was only one main tenant and if he leaves the apartment after the separation, the other partner can usually only take it over if he has a sufficiently high income. If this is not the case, it is advisable to include the new life partner or possibly a parent as the second main tenant in the changed rental agreement.

Cancel Joint Insurance

Very important: All insurances, regardless of whether they are only for one name or for both partners, should be checked so that you don’t end up with a partner without insurance cover. This applies in particular to all types of family or co-insurance with the partner (e.g. liability insurance, health insurance). Life insurance and annuity insurance should be checked to see who should be the beneficiary in the event of an insured event. The former spouse should then be removed from these contracts. Terminations are not recommended as they are almost always associated with financial losses.

Separation with joint current account

If there is a joint checking account, this should be closed. However, it is advisable to let this continue at least until both partners have diverted their incoming and outgoing payments to a new, separate account. If there is a balance on old checking accounts or savings accounts, each is entitled to half of this. Both partners are also fully liable for outstanding debts. Therefore, the spouses should, if possible, agree on who pays them. Because if one of the two is insolvent, the bank can and will hold the other party liable.

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