A life-altering process requiring careful legal guidance

Divorce is a major life-altering event that marks the end of a significant chapter for a couple. Every decision in a divorce will have long-lasting ramifications so it is essential and prudent to obtain sound legal advice for your specific situation.

Luxembourg divorce lawyer Karine Bicard explains that to file for divorce in the Grand Duchy, you must either be a habitual resident of Luxembourg, or one of the spouses must have been abroad for no longer than a year or be a Luxembourgish citizen.

She offers an overview of the four key areas to understand when considering divorce. They are: the place of residence of the child/children, the existence or not of a marriage contract, the personal situation of the spouses, especially for a non-EU resident, and the years of marriage. Below we take a look at each of these points.

The child's place of residence

This is important because it determines custody, child support, and parental rights. Luxembourg law prioritises the child's best interest when determining custody. The child's primary residence influences whether one parent has sole custody or if both parents share joint custody. Visitation and parental access may be established by the court, if one parent lives far away, to ensure the child maintains a bond with both parents.

Regarding custody, the court takes several factors into consideration, including the parents' previous living arrangements, their preferences, the child's best interests, the child's age, and if the child is able to express their wishes. Additionally, the distance between the parents' homes, their ability to provide for the child materially, and their overall parenting capacity are also important considerations.

In terms of child support, if the parents practice alternating residence (e.g., one week with each parent), no child support is required. However, if one parent has visitation and custody rights, they will be obligated to pay child support, which is calculated based on both parents' incomes and the child's needs, considering their age and any potential disabilities.

Additionally, both parents are responsible for covering extraordinary expenses, such as medical care, school trips, and costs related to extracurricular activities, provided that invoices are presented for reimbursement.

Also noteworthy is that the parent with primary residence may benefit from family allowances and tax deductions related to child-rearing expenses.

The existence, or not, of a marriage contract

In Luxembourg, the existence (or absence) of a marriage contract is crucial when divorcing because it determines how assets, debts, and financial responsibilities are divided between spouses.

If there is no marriage contract, the couple falls under the legal community of acquired property regime.

This means that assets acquired during the marriage (both movable, such as cars, furniture, and savings, and immovable, such as homes and land) are considered joint property and are divided equally upon divorce. Debts incurred during the marriage are also shared between spouses. Pre-marital property and inheritances remain the sole property of the original owner.

When a marriage contract exists, the division depends on which regime the couple opted for – separation of property or universal community of property. The former means that each spouse is responsible for their own debts and retains ownership of the property they acquired both before and during the marriage.

The universal community of property regime is where all debts, whether incurred before or during the marriage, are shared by both spouses, and all movable assets and immovable property, regardless of when it was acquired, belongs to both.
The latter regime may make the divorce process more complex as all assets and debts must be split equally.

The personal situation of each spouse

This matters in divorce proceedings when determining asset division, spousal support, child custody, and financial obligations. For example, if one spouse was a stay-at-home parent, putting their career on hold to raise children, they may receive temporary or permanent spousal support.

Another scenario is if one parent has health issues as this may affect financial support obligations. Also, residency rights may be impacted following divorce if one spouse is a non-EU national with a residency permit based on family reunification.

The length of the marriage

How long the couple was married is also a key consideration as it could mean there are stronger financial and legal ties between the spouses. A marriage that lasted a year may end quickly with limited financial obligations, while a 30-year union with common assets requires more intricate legal proceedings.
 

Do I need a lawyer when divorcing?

Ms Bicard states that for a mutual consent divorce, a lawyer is required to draft the agreement, but you may attend the hearing before the family judge without legal representation. In the case of an irretrievable breakdown of the marriage, a lawyer’s presence is mandatory in court. Without legal representation, the spouse will not have the right to speak during the hearing.

In terms of retaining a family law lawyer, she advises selecting one with experience in divorce cases. It’s useful to check online reviews, choose a lawyer near your place of residence, and confirm they speak the languages necessary for clear communication, she adds.

Cost of divorce

Legal fees for divorce vary depending on the type and complexity of the case, Ms Bicard outlines. A mutual consent divorce typically costs around €3,000. However, a divorce based on the irretrievable breakdown of the marriage can range from €6,000 to over €10,000, especially if the proceedings are lengthy or complex. Costs may also be higher if the lawyer is highly experienced and charges an hourly rate rather than a fixed fee.
 
Ms Bicard notes that some of the main reasons for divorces running into a long and expensive legal action are due to conflicts between the spouses concerning the residence or custody of children, or the division of community property.

In terms of alternatives, she advises that there are other dispute resolution mechanisms to getting a divorce. It is possible for spouses who do not want to divorce right away to go through a legal separation or to engage in family mediation, she adds.