Divorce & Separation

Condominium units are valued in the equalization of accrued gains like other properties as of the dates of marriage and litispendence, usually using the sales comparison approach, supplemented by property-specific factors such as maintenance reserves or rights of exclusive use.

Jointly owned commercial properties are valued using the income approach and treated like other properties in the equalization of accrued gains. If the property is used for business purposes by one spouse, additional corporate law aspects must also be considered.

A loan taken out before the marriage and still outstanding at the date of the marriage is treated as a liability in the initial assets and correspondingly reduces the starting value to be applied.

The registration in the land register initially only determines civil-law ownership. For the equalization of accrued gains, the increase in value during the marriage must be equalized independently of this, regardless of who is listed as owner in the land register.

Where minor children are involved, the family court may grant the parent with custody a temporary right of use of the family home, regardless of the ownership situation. The financial compensation is handled separately within the equalization of accrued gains.

The housing benefit (Wohnvorteil) reflects the economic advantage that a spouse derives from living rent-free in the jointly owned property after the separation. It is calculated on the basis of the local comparative rent and taken into account in maintenance calculations.

In a foreclosure auction, a lower proceeds amount is often achieved than in a voluntary sale, as bidders factor in the risk of a court proceeding as well as the lack of comprehensive viewing opportunities.

In the case of a community of property (Gütergemeinschaft), the property belongs to both spouses jointly from the outset, so that in the event of divorce there is no calculation of accrued gains, but rather a regular division of joint assets according to the rules of the community of property.

A property inherited during the marriage is added to the initial assets as a privileged acquisition at its value at that time. Only the increase in value that has occurred since then is subject to the equalization of accrued gains.

Foreign properties are in principle also included in the equalization of accrued gains. For rented properties, it must additionally be clarified which national law governs the tenancy relationship and the determination of income.

Without marriage, there is no statutory equalization of accrued gains. The division of jointly acquired property is instead governed by the civil-law co-ownership shares as well as any existing agreements between the partners.

A land charge registered in favour of third parties, for example to secure a family loan, is taken into account as an existing encumbrance in the valuation and reduces the net asset value to be applied accordingly.

The total value of the property is first determined uniformly and then allocated computationally between both partners according to the co-ownership shares registered in the land register, for example 60 to 40 percent.

Remaining in the property alone does not change the fundamental valuation for the equalization of accrued gains, but it additionally leads to the imputation of a residential benefit as well as, where applicable, a proportional share of costs for the other partner.

In the case of an early equalisation of accrued gains under § 1385 BGB, for example in the event of a prolonged separation without divorce, the property is already valued as of an earlier reference date, regardless of the later conclusion of the divorce proceedings.

In addition to the actual valuation by a local valuer, holiday properties abroad often require consideration of differing forms of ownership, tax regulations, and sales restrictions for foreign owners.

Increases in value that occur only after the relevant cut-off date of litispendence generally remain disregarded for the equalization of accrued gains and remain entirely with the respective owner of the property.

Existing loans are deducted from the determined market value, so that only the actual asset value – the so-called equity in the property – is included in the calculation of the equalization of accrued gains.

Yes, in principle each spouse can commission their own private appraisal report. In court proceedings, however, it is usually a court-appointed, neutral valuer who ultimately determines the relevant value.

The value of the property at the time of marriage is set as this partner's initial assets. Only the increase in value that occurred during the marriage is included in the equalization of accrued gains.

Value-enhancing modernizations during the marriage increase the final assets and thus, in principle, the equalizable accrued gains (Zugewinn) – regardless of which spouse predominantly bore the costs.

The initial assets comprise the property value on the date of marriage, and the final assets the value on the date the divorce petition was served. The difference between the two values constitutes the equalizable accrued gain.

Foreign properties are generally also included in the equalization of accrued gains. The valuation is usually carried out by a qualified local appraiser according to local standards, translated and prepared for the German proceedings.

The Matrimonial Property Register documents marital property regimes such as separation of property or modified community of accrued gains vis-à-vis third parties. For the real estate valuation itself, it does not provide any value data, but it does clarify whether a compensation claim exists at all.

A valuation appraisal report always refers to a fixed valuation date and loses relevance over time. For an ongoing divorce proceeding, it should generally not be older than six to twelve months.

The date generally decisive for the final assets is the date the divorce petition is served (commencement of litigation). For the initial assets, however, the date of marriage applies.

There are three common approaches: sale and division of proceeds, takeover by one partner in exchange for payment to the other, or – if no agreement is reached – a court-ordered partition auction.

If the partner wishing to take over the property cannot finance the payout, the usual options remaining are to sell the property on the open market or, as a last resort, a court-ordered partition auction.

A prenuptial agreement can fully or partially exclude or modify the statutory equalization of accrued gains (Zugewinnausgleich). If separation of property has been agreed, the equalization of accrued gains for the property is entirely eliminated, regardless of its increase in value.

The partition auction is a court-ordered forced sale procedure used to convert jointly owned property into money when co-owners – for example after a divorce – cannot agree on how to dispose of it.

Owner-occupied properties are generally valued using the sales comparison approach or cost approach, since no rental income exists in this case. The condition and market value as of the relevant valuation date are decisive.

Yes, rented properties are typically valued using the income approach, since the achievable rental income is the determining factor for value, whereas the sales comparison approach or cost approach is applied for owner-occupied properties.

Only the increase in value of a property achieved during the marriage is included in the equalization of accrued gains. Increases in value that already existed before the marriage remain with the respective owner and are not taken into account.

As a general rule, whoever commissions the appraisal report bears the costs. In a court case concerning equalization of accrued gains or division of assets, the court may also apportion the costs between both parties or assign them to the party that loses the case.