Equalization of gains - this is what you have to pay attention to in the divorce process

If couples divorce, the question "Who gets what?" is of essential importance. Especially when it comes to a jointly occupied property, which must now be divided, is often fought with hard bands. With the equalization of gains, the legislator has tried to create a fair solution for the separation of property after a divorce. Unfortunately, the regulations in practice are usually anything but easy to implement.

Most marriages are concluded in Germany without a marriage contract. Many see a prenuptial agreement as an unnecessary bureaucratic act and consider it a bad sign if you are already dealing with the divorce before the wedding. Without a prenuptial agreement, the marriage is in any case considered to be a so-called community of gains. This legal definition means that in the event of divorce, each of the partners is entitled not only to half of the joint assets, but also to an equalization of gains - that is, a 50 percent share of the amount by which their spouse's assets have grown during the years of the marriage. The equalization of gains often causes particular difficulties when it comes to the division of a property. There are at least three significantly different cases.

Case 1: The property belongs to both spouses together in equal parts

If both spouses are registered in the land register as owners and the property is their joint property, there is no equalization of gains. The property is therefore simply - and this is often difficult enough - divided equally between both spouses. If one of the partners wants to remain living in the property, he must pay the other half of the value in the form of money, in the case of a sale, both receive half of the sales proceeds.

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

If one of the spouses is the sole owner and has already bought or inherited the property before the marriage, it remains in principle his sole property even after the divorce. However, any increase in the value of the property during the years of the marriage constitutes (capital) gains, and this means that the divorced spouse must be paid equalization of gains. An example: At the time of the marriage, the value of the property was 300,000 euros. 25 years later there is a divorce and the value has risen to 500,000 euros. Due to the gain of 200,000 euros, the owner of the property must pay his divorced spouse a gain equalization of 100,000 euros.

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

It looks quite different if the property was acquired or inherited by one of the spouses only after the marriage. The entire value of the property is then to be considered as Zugewinn in assets during the marriage. So, for example, in the case of an inherited property that was worth 300,000 euros at the time of inheritance and is now worth 500,000 euros, one spouse's assets have increased by the total amount of 500,000 euros - all within the duration of his or her marriage. In the event of divorce, the other partner is now entitled to an equalization of gains of 250,000 euros - half of the total value of the property, although he is not a co-owner.

In practice, the situation is often even more complicated, namely 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 living in the property after the divorce often fails because he can not pay off his divorced ex-partner. The equalization of gains ensures that even single owners often find themselves in this situation. As a way out then only the sale of the property remains.

You are not sure whether the house sale after separation is the best solution for you? Contact us! We will be happy to advise you.

VON POLL IMMOBILIEN Bayreuth officewww.von-poll.com/bayreuthTel.: 0921 - 730 45 53

Legal notice:This article does not constitute tax or legal advice in individual cases. Please have the facts in your specific individual case clarified by a lawyer and/or tax advisor.

Photo: © mitay20/Depositphotos.com