Equalisation of accrued gains and division of assets
If spouses have not concluded a marriage contract, they are subject to the statutory matrimonial property regime of the community of accrued gains. On divorce, the increase in assets achieved during the marriage is equalised. We determine the relevant asset values, calculate the equalisation and support the division of jointly held assets.
The key points at a glance
Basic principle
The accrued gain is the amount by which a spouse’s final assets exceed their initial assets (§§ 1373 ff. BGB). If the accrued gain of one spouse exceeds that of the other, the other is entitled to half of the difference as a monetary claim (§ 1378 Abs. 1 BGB). During the marriage, each spouse’s assets remain separate.
Initial and final assets
Initial assets are the assets at the time of marriage. Inheritances and gifts received during the marriage are generally added to them and are therefore ultimately not subject to equalisation. In the event of divorce, final assets are determined as at the date of service of the divorce petition (§ 1384 BGB). Debts are taken into account. Assets may also be negative.
Rights to information
Each spouse may demand information from the other about their assets at the time of separation, at the reference date for final assets and about their initial assets, and may request supporting documents (§ 1379 BGB). This information forms the basis of every calculation.
Jointly held assets
In addition to equalisation of accrued gains, jointly held property, accounts, loans and household effects must be divided. If no agreement can be reached, options include, for example, contribution between joint debtors or, for real estate, a partition auction. Claims to equalisation of accrued gains are subject to the standard three-year limitation period.
How we proceed
Together with you, we record your initial and final assets and request the necessary information and documents from the other party.
We review the information provided, clarify valuation issues – for example concerning real estate, business interests or life insurance policies – and involve experts where necessary. This results in a transparent calculation of the equalisation claim.
We negotiate an overall solution that also covers the distribution of jointly held assets and prepare the necessary notarial agreement. Otherwise, we assert the claim in combined proceedings or in separate proceedings.
Frequently asked questions
Is every asset divided?
No. It is not the assets themselves that are equalised, but only the increase in value during the marriage, as a sum of money. Anyone who brought a property into the marriage, for example, remains its owner. Only an increase in its value may be included in the calculation.
Can we settle the accrued gains ourselves?
Yes, spouses can reach agreement on the equalisation of accrued gains. However, such an agreement made before the divorce becomes final must be notarised or recorded in the court divorce proceedings (§ 1378 Abs. 3 BGB).
Your contact
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