Expatica's resident lawyer Csilla Ivanyi answers questions from readers assailed with legal woes - including a man whose ex-wife wants to burn down his house.

Not a course of action recommended by Expatica's resident lawyer

I enjoy reading your letters and hearing your advice.  My question involves my fiancé and his ex-wife.  While he is contacting a lawyer, I wanted a second opinion.

For three years, she has refused to sell the "paid for" house.  It sat vacant until two months ago when he returned to Germany for 6 months.  We figure why should he rent an apartment when he owns half the house?  We know we can take it to auction, but it's a EUR 200,000 house that would sell for a song!  So his plan is to fix it up, hope that the market improves and that somehow we can change his ex-wife's mind.

Our dilemma is that now she is furious that he is living there and is a little bit crazy.  She has made comments to friends that she would burn the house down and go to jail rather than let him have any money from it.  Is there some form of restraining order that can be placed on her to keep her away from him and/or the house?  And what would happen to the house if she did try to do damage to it and was caught by the police?  Can he go to the police and pre-warn them about her?  Any other advice would be greatly appreciated. 

Dear Susan,

This is definitely a case for the police and court. You can apply for a restraining order to protect you, your family, the house from being attacked by her. The most delicate aspect is always the question of what proof you have for her aggressiveness and her frightening behaviour. Would these friends you mentioned testify what they have heard?

If she damages the house she damages not only her own property, but also that of another person, your husband. So of course she could be indicted in the event that she vandalises the property.

You always have to consider that a bad relationship could suffer even more if you get third parties involved like the police, a judge etc., but on the other hand she might need a signal from an authority that she is overshooting the mark. It could also be helpful if such an authority tells her to get psychiatric therapy, because mostly friends and family are not able to convince such people. So in my opinion you should not hesitate to take action against her, but consider those high requirements for the evidence you have to present.

Best regards,
Csilla Iványi
attorney-at-law

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Jennifer writes:

I have a question about the legal limit for noise in your house. We live in Erding in Bavaria.

Our neighbour is constantly complaining that we play loud music all day and all night. She stopped us on the street last night and told us that Monday night we were playing loud music all evening. I was home alone on Monday, my husband was at work, and I watched television until 20:45 and then turned it off and went to bed. There was no stereo playing, no TV on and no radio on and I was sleeping before 21:30, my husband called me at 21:20 and I was already asleep.

She phoned last week and said that our music was too loud and again I was home by myself. It was 21:40 and I was upstairs in the house in the bathroom washing my face and again there wasn't any music playing. Then she said it sounds like some kind of machine.

She says that all our neighbours think we are noisy and trouble makers. She sounds to us like she's a little crazy! She has had a lawyer send letters to us to ask us to be quiet and tell us when the quiet times are, but honestly we aren't noisy and we don't listen to loud "boom boom" music (as she describes it). My husband works shift work and I work full time during the day. We spend most of our days off and holidays away from the house.

She wants to hire a sound engineer to test the sound proofing of the house, which she will pay for. We are worried that if the engineer says that the sound proofing is okay that she will sue us or something.

We were wondering if it could be because we are auslanders (sic)? We own our house so it is a little difficult to move, which we would do if we were renting it. We were the first people to live in it and moved in a few months before she did. We've been living there for three 1/2 years. Our son lived with us for the first year and she used to say it was only when he was home and that he was the cause of the problem. Now it is only my husband and I living there.

Is there a legal limit for a decibel reading for sound in a house in Erding? What can she legally do to us? Is it slander for her to talk about us to everyone that will listen? The whole situation is very stressful for us. We do have a right to a peaceful existence don't we?

If you have any questions or need more information please contact us.

Dear Jennifer,

What you describe sounds like a serious problem with a paranoid or slightly crazy woman. Actually, if you don't cause any noise, you shouldn't be worried at all - even if her attacks of course are tiresome and also distressing. I would recommend not to argue with her anymore. Next time she accuses you of making noise, tell her she has to call the police. The police will find out the truth then.

As to the legal situation: Of course there are decibel limits, and in an exclusively residential area they are lower than in an industrial area. There are also time frames: at night when you have to observe lower limits than during the daytime. You can ask for those limits and time regulations at the local authority; in Berlin it's the "Umweltamt", certainly also in Erding and Munich it will be some kind of environmental agency. This agency is also in charge of pursuing offences against these limits, usually when the police had been called by someone who felt disturbed. Then they let the agency know about the offence and impose a fine on the offender. The police are also entitled to seize the source of noise, for instance a stereo player, TV, radio etc.

If you feel seriously molested by this woman you should also think about taking steps against her, like a restraining order. But in order to be successful, you would have to present some documentation to court, like testimonies, police statements etc. Therefore it would be helpful if the woman had called the police a few times unnecessarily.

Best regards,
Csilla Iványi
attorney-at-law

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Charlene writes:

I am an American woman married to a German and living here in Germany.  We have 2 children ages 12 and 8 who have both  American and German passports. Our children were born here, and other than the occasional visit to the States, have spent their entire lives here in Germany. 

My understanding is that the children will be able to keep their American citizenship but, at the age of 23 must choose between German and American citizenship because of German law. 

Aren't they in a different category from those who take on a second nationality because they were dual nationals at birth?  Also, if they decide later never to live in the States but spend their lives here will they still have to file tax returns later to the U.S.?

Dear Charlene,

You don't have to worry: your children can keep both nationalities. The obligation to opt for one passport only exists for children who have obtained German nationality after 31 December 1999, according to a new law. This new law gives German citizenship also to children who are born after December 1999 and have non-German parents if at least one parents has lived here for at least eight years. These children are being assigned German citizenship, but have to choose their parents' nationality or German nationality before they reach the age of 23. 

Sorry, I can't tell now whether they will have to file tax returns later to the U.S. - maybe you should ask a U.S. tax lawyer.

Best regards,
Csilla

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Parag writes:

I am an Indian and have been working in Germany on a Green card for the last three years.

I have been paying my contributions towards the RV (Renten Versicherung), AV (Arbeitslos Versicherung) and other contributions which are part of the standard deductions from my monthly salary.

My question is: if I leave Germany, am I entitled to a refund on any of these contributions? How do I go about processing such a claim?

Many thanks.

Dear Parag,

In general it's possible for foreigners to demand a refund. In detail it is dependent on international treaties between Germany and the state of the applicant. As far as I know there is no such treaty between India and Germany, so there might be difficulties or restrictions. Please turn to the "Landesversicherungsanstalt" you are paying your contributions to and ask them about the procedure. They will certainly be able to help you. If not, please write again.

Best regards,
Csilla

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Anna writes:

I'm currently pregnant and the baby is due shortly. I would like to know what happens to the child should anything happen to the parents (we are married, my husband is German and I'm Finnish citizen and we live in Germany).

Does the immediate family (grandparents/aunt/uncle from either side) become automatically the legal guardian of the child or do we have to make a will stating specifically to whom we give the guardianship in case of both of the parents being deceased. Does the will need to be legalized by a notary, or is the will drawn by an attorney valid as well?

Thanks in advance.

Dear Anna,

 You need to fix these issues in a will. The right for child custody, to be a legal guardian for a child, will not automatically devolve to the grandparents. In case of a sudden accident involving the parents, the authorities will take care of the children and put them in a home until relatives, heirs etc. are found. Then in a lengthy procedure they try to find out what solution would be the best. If several relatives want to take care of the child/children and start arguing, psychologists have to write expert opinions... As you can see, it's easy to sketch a horrible scenario, so it's definitely wise to determine in advance what should happen in such case.

So you have to include this into a will, which does not necessarily have to be notarized, but has to obey the rules for a valid testament, of course. The more detailed it is and the more reasons you give for your decision the more convincing it will be for the authorities, and so it will be very likely that they follow your determination - but they don't have to follow your instructions, because all they are interested in is the best solution for the child. The decisive argument might be the closest relationship to a person, but they will also consider the possibility to remain in Germany, if the child has grown up here.

Best regards,
Csilla Iványi
attorney-at-law

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Nancy writes:

My husband and I are American citizens. We currently live in the UK as my husband is doing his PhD here. As his research requires, we will move to Germany for a year and hopefully go back to USA when he finishes his study. He already has a professor in Germany that he will work with and is waiting for the admission letter. (But eventually he is still getting his degree from the university in the UK.)

(1) In this case, I think he should apply for a student visa, right? Or a residence permit?

(2) What kind of visa should I apply for? Is there a spousal visa or should I apply for a residence permit? I learned German before and I want to take some more language courses when I am there. Will I be entitled to work? Do I need to apply for language courses before I go to Germany?  What kind of visa should I apply for so that I can take the language courses (and can work if I choose to)?

(3) Should we apply for visas here in London or when we get to Germany?(As far as I know, American citizens can enter Germany without a visa and  later apply for a visa after they arrived. Would it be more complicated seeing as every document has to translated in German?)

I know usually it takes a long time to get a visa in summer. I would like to prepare for our move to Germany as much as possible. Please advise us on these matters.

Thank you so much for your time and I look forward to hearing from you soon.

Dear Nancy,

First of all, as US citizens you in fact need no visa to enter Germany. So I don't think the embassy would accept visa applications. If you then apply for a residence permit, the authorities determine the legal basis for your special case. Since in the beginning of 2005 the law has been revised, there are no different terms any more for the different sorts of permits. Now they are all called "residence permit". The authorities decide according to the application whether you get one, two or three years and they usually also note the purpose of your stay in the passport as well. So your husband just has to submit the recommendation letter, the documentation about his PhD and the purpose for his studies in Germany and they will issue the permit accordingly.

As to your second question: spouses of students also have the right to come, but you have to give evidence that you have enough means to live on.

Best regards,
Csilla Iványi
attorney-at-law

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Send a question to Csilla Iványi at germany@expatica.com


28 June 2006

This article contains information of a general nature and should not be considered as legal advice.

Although the greatest care has been taken in drafting this article, it is possible that certain information may have become outdated or inaccurate since its publication.

Copyright Expatica 2006

Subject: Life in Germany, legal advice, ask our lawyer