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Equitable distribution of marital assets – what you need to consider when getting divorced

When couples get divorced, the most important question is: "Who gets what?" When it comes to jointly owned property that now has to be divided, the battle is often fierce. With the equalization of accrued gains, the legislature has attempted to create a fair solution for the division of property after a divorce. Unfortunately, in practice, the regulations are usually anything but easy to implement.

Most marriages in Germany are entered into without a prenuptial agreement. Many see a prenuptial agreement as an unnecessary bureaucratic act and consider it a bad sign to be thinking about divorce before getting married. Without a prenuptial agreement, the marriage is always considered a so-called community of accrued gains. This legal definition means that in the event of a divorce, each partner is entitled not only to half of the joint assets, but also to a compensation for accrued gains— i.e. a 50 percent share of the amount by which their spouse's assets have increased during the years of marriage. The equalization of accrued gains often causes particular difficulties when it comes to dividing real estate. There are at least three significantly different cases.

Case 1: The property belongs to both spouses in equal shares

If both spouses are listed as owners in the land register and the property is jointly owned, there is no equalization of gains. The property is therefore simply divided equally between the two spouses, which is often difficult enough. If one of the partners wants to continue living in the property, they must pay the other half of the value in cash; if the property is sold, both receive half of the proceeds.

Case 2: One of the spouses is the sole owner and brought the property into the marriage

If one of the spouses is the sole owner and purchased or inherited the property before the marriage, it generally remains their sole property even after the divorce. However, any increase in the value of the property during the years of marriage constitutes a (capital) gain, which means that the divorced spouse must be paid compensation for the gain. An example: At the time of marriage, the value of the property was $300,000. twenty-five years later, the couple divorces and the value has risen to $500,000. Due to the gain of $200,000, the owner of the property must pay his divorced spouse a gain equalization of $100,000.

Case 3: One of the spouses is the sole owner and acquired the property during the marriage

The situation is completely different if the property was acquired or inherited by one of the spouses after the marriage. The entire value of the property is then considered to be an increase in assets during the marriage. For example, if one spouse inherited a property that was worth $300,000 at the time of inheritance and is now worth $500,000, the total value of that spouse's assets has increased by $500,000—all within the duration of the marriage. In the event of a divorce, the other partner is now entitled to a gain equalization of $250,000—half of the total value of the property—even though they are not a co-owner.

In practice, the situation is often even more complicated if loans have not yet been paid off or the property is encumbered with a mortgage. The desire of one of the partners to remain in the property after the divorce often fails because they cannot pay off their divorced ex-partner. The equalization of gains ensures that even sole owners often find themselves in this situation. The only way out is then to sell the property.

Not sure whether selling your house after separation is the best solution for you? Contact us! We will be happy to advise you.

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Legal notice: This article does not constitute tax or legal advice in individual cases. Please consult a lawyer and/or tax advisor to clarify the facts of your specific case.

Photo: © mitay20/Depositphotos.com
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