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-   -   Divorce lawyer and advice (https://www.englishforum.ch/family-matters-health/295544-divorce-lawyer-advice.html)

Maleropo 04.12.2019 00:21

Divorce lawyer and advice
 
Hi there, I have been married for over 20 years and we are filing for divorce. I wonder if someone can recommend a good lawyer in Zurich

I am the mother and I work. My husband is my dependent on a B permit.. We moved to Switzerland 14 months ago. He stopped working on a middle life crisis 2 years ago. Do I have to pay him alimony even if he is less than 50 and able to have a solid job?

Any experience with working mothers and custody?

So far the conflict is relatively low. However, I didn’t want to file for divorce in Switzerland and he is requesting this with the court and he is trying to delay the hearing for a few months. I prefer the USA law as we own our property, savings, etc.. in the USA and we only rent and have a B permit here. I have one child. I filed in the USA and he is challenging the jurisdiction

For Switzerland to be the place of divorce you have to be here more than 12 months. If of the 14 months we are here, he took 3 months of vacation outside of the country, is this still aplicable? I know is rather specific question but my Swiss lawyer can’t answer so I al looking for a better lawyer and some advice

Any advice is welcome. Thank you!

Maleropo

Medea Fleecestealer 04.12.2019 07:00

Re: Divorce lawyer and advice
 
Welcome to the forum and sorry to hear it's for such a reason.

This gives some general info about custody, maintenance payments, etc.

https://www.ch.ch/en/divorce/

MsWorWoo 04.12.2019 07:03

Re: Divorce lawyer and advice
 
In Switzerland the rule of thumb is shared custody, 50/50.
As he is a dependent, yes, you will have to pay alimony, if he is the main child carer, you will have to pay him child maintenance too, he may get primary residency of the kids too.
You will have to share your pensions during marriage 50/50.
You will likely have to share property/savings during marriage 50/50 too (except if they are inheritance).
A good lawyer that works with international families, and custody, is Frau Crameri. She dealt with my complicated child custody issues (we divorced in the UK which only covered the dissolution, and separately the finances). She has also dealt with a friend’s divorce where she was the working mother and the father was stay at home, and got the mother custody... although there was abuse in that case).
Good luck, and I hope things stay amicable. No need to give lawyers all your saving....

Maleropo 04.12.2019 07:38

Re: Divorce lawyer and advice
 
Thank you. My daughter is cared by me and my mother primarily. She is an the international school she ends school late due to her activities 5-6 pm. I work from home twice a week. He doesn’t want to be a husband that takes cares of the family so he doesn’t do much at home. ( he is not a housewife, as he says)
Overall it seems Swiss law is not going to protect me. Thanks for the advice on the lawyer!! Maleropo

kri 04.12.2019 08:30

Re: Divorce lawyer and advice
 
If I understand you correctly, you were both always working and only recently your husband stopped working?

He is also not the primary carer or "stay at home" parent really, just currently unemployed?

I believe in this situation who will stay in main home and get alimony is not straight forward as he can be expected to continue working.

Typically the situation where alimony is almost an automatism is if one partner stopped working and cared for the children and supported the other career.

Not a lawyer though and sorry cannot help on the jurisdiction front but good luck, these situations are hard.

st2lemans 04.12.2019 08:39

Re: Divorce lawyer and advice
 
Vacation does not count, only residency does, so unless he de-registered for the three months of his vacation, he was resident the full 14 months.

Tom

Jim2007 04.12.2019 11:02

Re: Divorce lawyer and advice
 
Quote:

Originally Posted by Maleropo (Post 3126652)
I know is rather specific question but my Swiss lawyer can’t answer so I al looking for a better lawyer and some advice

A better lawyer or one that gives you the opinion you want to hear? There are many questions that a lawyer can’t answer because it depends on the decision of a judge in a certain set of circumstances, that does not make them a bad lawyer. They are not mind readers. Listen to reasons why he can’t give you an answer and try to understand the complexity.

People are entitled to take holidays, but if your partner’s overall behavior is acceptable is something that a court will have to decide, the lawyer can’t give you an answer on something like that.

Let me give you a kind of similar example, Irish law requires a person to be resident in the country for the final 12 months before they are granted citizenship. Now if you asked any lawyer in country up to a few weeks ago, if it was OK to go on holidays you’d be told of course, no problem. Well it turns out they were all wrong! A court recently ruled you cannot take holidays abroad. A lawyer can never be sure of the outcome of something that goes to court.

Maleropo 04.12.2019 11:31

Quote:

Originally Posted by st2lemans (Post 3126673)
Vacation does not count, only residency does, so unless he de-registered for the three months of his vacation, he was resident the full 14 months.

Tom

Thank you. Very helpful!!

Quote:

Originally Posted by Jim2007 (Post 3126711)
A better lawyer or one that gives you the opinion you want to hear? There are many questions that a lawyer can’t answer because it depends on the decision of a judge in a certain set of circumstances, that does not make them a bad lawyer. They are not mind readers. Listen to reasons why he can’t give you an answer and try to understand the complexity.

People are entitled to take holidays, but if your partner’s overall behavior is acceptable is something that a court will have to decide, the lawyer can’t give you an answer on something like that.

Let me give you a kind of similar example, Irish law requires a person to be resident in the country for the final 12 months before they are granted citizenship. Now if you asked any lawyer in country up to a few weeks ago, if it was OK to go on holidays you’d be told of course, no problem. Well it turns out they were all wrong! A court recently ruled you cannot take holidays abroad. A lawyer can never be sure of the outcome of something that goes to court.

I guess for me a good lawyer will have more experience with couples of different countries. The lawyer I got doesn’t have that experience. Thank you!

Quote:

Originally Posted by kri (Post 3126670)
If I understand you correctly, you were both always working and only recently your husband stopped working?

He is also not the primary carer or "stay at home" parent really, just currently unemployed?

I believe in this situation who will stay in main home and get alimony is not straight forward as he can be expected to continue working.

Typically the situation where alimony is almost an automatism is if one partner stopped working and cared for the children and supported the other career.

Not a lawyer though and sorry cannot help on the jurisdiction front but good luck, these situations are hard.

Thank you!!!

Jim2007 04.12.2019 11:58

Re: Divorce lawyer and advice
 
Quote:

Originally Posted by Maleropo (Post 3126726)
I guess for me a good lawyer will have more experience with couples of different countries. The lawyer I got doesn’t have that experience. Thank you!

But this is not going to change the law.

Rumcajs 08.12.2019 18:03

Re: Divorce lawyer and advice
 
Quick answers to the parts where I can be useful, from first and second -hand knowledge>

Quote:

Originally Posted by Maleropo (Post 3126652)
I am the mother and I work. My husband is my dependent on a B permit.. We moved to Switzerland 14 months ago. He stopped working on a middle life crisis 2 years ago. Do I have to pay him alimony even if he is less than 50 and able to have a solid job?

Maleropo

From what I have seen and read up, it would be really hard to imagine the court deciding that you should pay him alimony.

The general concept behind alimony, I think, is that it should compensate a party (very often, the wife) for economic opportunities said party has given up to take care of children and/ or create a home, whatever creating a home means. To order you to pay alimony, the court would have to believe that your husband gave up a career, or made some other serious economic sacrifice in a disproportionate degree relative to you. Obviously this could be true in your case but seems very unlikely from the outside.

Quote:

Originally Posted by Maleropo (Post 3126652)
So far the conflict is relatively low. However, I didn’t want to file for divorce in Switzerland and he is requesting this with the court and he is trying to delay the hearing for a few months. I prefer the USA law as we own our property, savings, etc.. in the USA and we only rent and have a B permit here. I have one child. I filed in the USA and he is challenging the jurisdiction

Maleropo

Keep conflict low would be my advice. The ultimate jurisdiction could also depend a lot on both your nationalities and the child. If you have disagreements over $ and custody, this could go more sour quickly.

A word of advice, for all it matters - if you could, get this over with quickly. I have seen divorces last short and long, and the ones that last long cost all parties more than they imagine at first.

doropfiz 08.12.2019 18:15

Re: Divorce lawyer and advice
 
Quote:

Originally Posted by Rumcajs (Post 3127854)
The general concept behind alimony, I think, is that it should compensate a party (very often, the wife) for economic opportunities said party has given up to take care of children and/ or create a home, whatever creating a home means. To order you to pay alimony, the court would have to believe that your husband gave up a career, or made some other serious economic sacrifice in a disproportionate degree relative to you.

Yes, that is my understanding, too. However, I reached - from my armchair general knowledge (am not a lawyer!) - the opposite conclusion from you.

Quote:

Originally Posted by Rumcajs (Post 3127854)
Obviously this could be true in your case but seems very unlikely from the outside.

As I understood OP, she, her husband and their child moved from abroad, where the husband used habitiually to work, to Switzerland, 14 months ago. She is working here. That makes it sound like he is what is known as a "trailing spouse" who gave up on his career/employment/prospects in Otherland, to come here because living here is what his wife chose, for her career, or her wife's wish to be near her mother.

Quote:

Originally Posted by Rumcajs (Post 3127854)
From what I have seen and read up, it would be really hard to imagine the court deciding that you should pay him alimony.

Under those circumstances, alimony payments from her to him may be seen by a Court as reasonable.

doropfiz 08.12.2019 18:31

Re: Divorce lawyer and advice
 
Quote:

Originally Posted by Maleropo (Post 3126652)
I didn’t want to file for divorce in Switzerland and he is requesting this with the court and he is trying to delay the hearing for a few months. I prefer the USA law as we own our property, savings, etc.. in the USA and we only rent and have a B permit here. I have one child. I filed in the USA and he is challenging the jurisdiction

For Switzerland to be the place of divorce you have to be here more than 12 months. If of the 14 months we are here, he took 3 months of vacation outside of the country, is this still aplicable? I know is rather specific question but my Swiss lawyer can’t answer so I al looking for a better lawyer and some advice

Any advice is welcome. Thank you!

Maleropo

Here is a site offering online divorces (but I don't know anything about this company, so I'm not endorsing it) which sets out very clearly that the jurisdiction is at the place of residence.
https://onlinescheidung.ch/alles-ube...t-der-gerichte
In your case, all three of you live in Switzerland so that, according to this link, settles the jurisdiction as Switzerland.

Das Zivilgericht am Wohnsitz des einen oder anderen Ehegatten ist zuständig, um über eine Scheidung oder Trennung zu entscheiden.

Die Staatsangehörigkeit der Ehegatten ist ohne Belang. Auch der Ort, wo die Hochzeit gefeiert wurde, ist nicht relevant.

Vielmehr entscheidet der Wohnsitz über die Zuständigkeit der Gerichte. Folglich kann ein Ausländer mit Wohnsitz in der Schweiz ein Scheidungsurteil vom Schweizer Gericht erhalten (oder ein Trennungsurteil oder ein Urteil über die ehelichen Schutzmassnahmen).

The Civil Court at the place of residence of one or the other spouse has jurisdiction to decide about a divorce or separation.

The citizenship of the spouses is of no significance. This is also true for the place where the marriage ceremony took place: it is not relevant.

It is the place of residence which determines the jurisdiction of the Courts.
Therefore, a foreign citizen with residence in Switzerland can obtain a divorce from the Swiss Courts (or a Decree of Separation or a Decree about Protection of the marriage).

doropfiz 08.12.2019 18:43

Re: Divorce lawyer and advice
 
Quote:

Originally Posted by Maleropo (Post 3126666)
Overall it seems Swiss law is not going to protect me.

That's right. The Swiss law on such matters underwent a major shift about a decade ago. Now, "protection" with regard to a spouse is deemed necessary only if there is abuse of some sort.

Other than that, both parents, and the divorce Court, are supposed to make every aspect of the decisions subject to the question of what protects not the adults but the children. Always, the focus is supposed to be: "What is in the best interests of the child?"

For example, the notion of a parent having "visitation rights" has been turned around to say that the child has a right to full and proper contact and access to both parents. It follows, therefore, that if the parent with whom the child does not reside is unable or unwilling to bring about the contact, the other parent as a parental responsibility to do what it takes to enable the child to enjoy that contact and maintain the relationship.

In this way, the law ends up meaning that divorced couples who have children continue to have quite a lot to do with each other, because they may, as MsWorWoo mentioned above, be granted joint custody (that's the default and very likely) and also because each parent has a duty to the child to ensure that the child can enjoy a relationship with the other parent, and to do/provide whatever else is in the best interests of the child. This is a further reason for the advice of several posters to steer the course which involves as little conflict and as few detours as possible.

Rumcajs 08.12.2019 21:05

Re: Divorce lawyer and advice
 
Quote:

Originally Posted by doropfiz (Post 3127859)
Yes, that is my understanding, too. However, I reached - from my armchair general knowledge (am not a lawyer!) - the opposite conclusion from you.


As I understood OP, she, her husband and their child moved from abroad, where the husband used habitiually to work, to Switzerland, 14 months ago. She is working here. That makes it sound like he is what is known as a "trailing spouse" who gave up on his career/employment/prospects in Otherland, to come here because living here is what his wife chose, for her career, or her wife's wish to be near her mother.


Under those circumstances, alimony payments from her to him may be seen by a Court as reasonable.

Aha yes, that would make more sense. I did not quite get the impression the husband is a *trailing spouse*. But if he is, then there is a plausible claim that he has indeed given up some economic opportunity. So an alimony could be justifies in the eyes of the court.

The details here would matter quite a lot really.

Rumcajs 08.12.2019 21:17

Re: Divorce lawyer and advice
 
Quote:

Originally Posted by Maleropo (Post 3126666)
He doesn’t want to be a husband that takes cares of the family so he doesn’t do much at home. ( he is not a housewife, as he says)
Overall it seems Swiss law is not going to protect me. ! Maleropo

Well, it is unclear to me from your post what exactly you expect protection from. If I understand your post correctly, your husband does not want do (any?) work around the house. Certainly a problem if true, and raises a lot of questions about him, but I can't imagine this will be important enough for the Court to spend any time on.

To repeat what the user before me, Doropfiz, has posted: the Court will try to *protect* you only in extreme cases, e.g. domestic abuse. Other than that, the Court will first, foremost, and by a long distance, concern itself with the interests of the children. Not yours and not your husband's.

Good luck anyway - I hope things work out.

doropfiz 08.12.2019 21:38

Re: Divorce lawyer and advice
 
Swiss divorce law also does not know any concept of blame. Therefore, if a spouse has had an affair, or become lazy around the house, or had arguments with the inlaws, etc., these matters have no influence at all upon the "favourability" of a divorce settlement for the other spouse.

Again, the exception is domestic violence, sexual abuse, threats and possibly also verbal abuse, towards the spouse or the child, in which case it is possible to get a protection order. The arrangements with regard to the child's rights to a relationship with each parent will be modified, for example that the child has a right to an accompanying social worker. I hope that's not your situation, but if it is, there are resources to be had, starting with phoning the Helping Hand at 143, or going straight to the police.

LedZeppelin 11.12.2019 11:41

Re: Divorce lawyer and advice
 
Get yourself a lawyer who knows the Swiss and US jurisdiction. Your questions depend on your income etc. I had a good experience with Richard Chlup, he is a multi jurisdiction lawyer, speaks excellent English and doesn't charge for every call, his fees are reasonable. Good luck

Lynnsie 17.01.2020 22:31

Re: Divorce lawyer and advice
 
So although I understand your frustration... do you really feel like custody should not be 50.50? Maybe quickly reading I missed a topic of abuse or something like that but it just sounds like he's lazy and a terrible husband... maybe not the worlds best father either. If he is that lazy and so much about living his best single lazy life why are you worried? You will end up with primary custody anyway because he won't want the child around. Plus he will be forced to become unemployed.

It's possible he will try and claim you here for spousal support which he is entitled to. At which point you can refute he became unemployed recently while being emotionally negligent. The US courts will look at it the same. However, you need to make a decision fast because he could file a separation which will assess your income as stands and push divorce further down the line. At least if you file now, no matter where he cannot claim more... as you will earn more expectedly. His lawyers will tell him to sit on the issue as long as possible so he meets the requirements.


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