Questions and Answers on on matrimonial property law
What is the gains compensation about?
Spouses to whom the German matrimonial property law applies and who have not effectively made a different agreement live in the legal matrimonial property regime of the community of gain compensation. In connection with the divorce, the Family Court, upon application by one of the spouses, carries out the equalization of gains, in which the (positive) changes in assets of both spouses during the marriage period are compared and the one with the lower increase in assets receives a compensation of half.
How do I protect myself if my spouse transfers or wastes assets during the separation period?
The result of a gain equalization procedure can vary greatly depending on the assets to be included and their value.
If, during the separation phase, there are indications that assets may have shifted, an application can be made for compensation for gains or for securing the right to compensation in provisional legal protection even before the divorce.
What is the difference between equalization of gains and distribution of assets?
If both spouses were employed and jointly pursued asset formation, e.g. built a house, or if one of them set up a company or practice with the cooperation of the other, the compensation for gain is regularly unsuitable for the division of their assets. The distribution of assets is then carried out outside of the divorce proceedings before the family court in separate legal proceedings before the civil court. Since the other party's attorney's fees are to be paid in the event of defeat, which can be very high depending on the amount in dispute, the prospects of success should first be carefully examined.
Here, too, it is in the nature of things that the spouse entitled to equalization has liquidity problems before the equalization of gains/distribution of assets. I would therefore be pleased to check for you in advance whether you are entitled to counselling assistance for legal advice and legal aid for the judicial enforcement of your claim for compensation.