With their own house or condominium, many couples fulfill a dream. But when the marriage breaks down, the question quickly arises as to what should now happen to the jointly owned residential property. Attorney Dr. Christina Schmidt ist Expertin für Scheidungsrecht und berät Sie umfassend und kompetent zum Thema Immobilien im Scheidungsfall.
These include the following questions:
- Who owned the property?
- Property and Separation
- Property and Divorce
- Divorce and Property Financing
- Homeownership in Questions of Equalization of Gains and Maintenance
- Prenuptial Agreement and Divorce Consequences Agreement
1. Wem gehört die Immobilie?
In many cases, married couples purchase their home together and both become owners. However, the property may also belong to only one of the partners, for example if they brought it into the marriage or inherited it during the marriage. Ultimately, what is decisive is who is registered as the owner in the land register.
2. Property and Separation
For the question of who may continue to use the marital home between separation and final divorce, the ownership relationships are not yet of decisive importance. Regardless of this, the right to use the home initially continues to belong to both spouses. Divorce weiter nutzen darf, sind die Eigentumsverhältnisse noch nicht von ausschlaggebender Bedeutung. Das Nutzungsrecht an der Wohnung steht unabhängig davon zunächst beiden Gatten weiter zu.
In practice, however, one of the partners usually moves out on the occasion of the separation. If the spouses cannot agree on who stays in the family home, either spouse can apply to the family court to have the marital home assigned to them for sole use. In this context, the welfare of joint children in particular, who should not be torn from their familiar environment, can play a decisive role. Kinder, die nicht aus dem gewohnten Umfeld gerissen werden sollen, eine entscheidende Rolle spielen.
If one spouse is the sole owner, this must be given special consideration in the decision. The other spouse would then need to present very serious reasons to be assigned the residence. The co-owner or sole owner may also demand compensation for use of the residence if they allow the other spouse to use it.
Dr. Christina Schmidt advises you comprehensively on all matters regarding the assignment of the marital residence after a separation and enforces your rights for you.
Property and Divorce
In the event of a divorce, it must be clarified how to proceed with a property that is jointly owned by the spouses.
There are different options for this.
- Sale: If the spouses can agree on the sale of the jointly owned property, an amicable sale is recommended. The proceeds can then be divided between both parties.
- Rental: Alternatively, the spouses can also agree to rent out the building or apartment jointly to a third party and share the income from it. However, this can be difficult with completely estranged couples, as they would have to act as landlords together and constantly reach agreements on tenant matters.
- Transfer to one of the spouses: Another option is for one spouse to take over the property as sole owner and pay out the ex-partner. The partner who keeps the house is then registered as the sole owner in the land register. With this solution, the spouses must agree on the compensation amount. In addition, the partner who takes over the house or apartment must have sufficient capital available to be able to pay out the other.
- Transfer to a child: The ex-spouses also have the option of transferring the property to a joint child. In the case of minors, the consent of the guardianship court must be obtained. Disadvantage of this option: With the house or apartment, the child not only takes on rights, but also owner obligations such as taxes and maintenance costs. The transfer of a house or condominium – whether to the ex-spouse or a child – requires notarial form. Dr. Christina Schmidt will be happy to advise you in detail before the notary appointment and will prepare the contract for the transfer of ownership for you.
- Division: Another solution option is the division of the property. In the so-called real division, the property is separated into two structurally separate residential units. The real division is carried out through a notarial declaration of division. Each of the ex-partners thereby becomes the sole owner of their residential unit and can dispose of it independently and without the consent of the other. For example, they can continue to live in it, sell it, or rent it out. A larger house with two floors and separate entrances can be divided into two condominiums, for example. Smaller properties, houses, or mere apartments are often not suitable for a real division.Important to know: The real division and any necessary renovations must comply with the specifications of the development plan and applicable building regulations. Properties to be divided must be re-surveyed.
- Partition Auction: If the spouses cannot agree on the fate of the jointly owned property, there is finally the option of the so-called partition auction. Each of the co-owners can apply for this at the competent local court. The building or apartment is then publicly auctioned. Disadvantage: The proceeds usually remain significantly below the value or a possible sales revenue of the property, and both spouses ultimately lose money. Partition auction should therefore always be the last resort.
Dr. Christina Schmidt has many years of experience in all matters concerning asset division and handling real estate in divorce cases. She knows the advantages and disadvantages of the various options precisely and advises you in detail on which solution is best suited and most advantageous for your individual case. Attorney Dr. Schmidt also prepares the necessary documents for you and represents you in case of disputes.
4. Divorce and Property Financing
If both spouses purchased a house or apartment together, a real estate loan was usually taken out for this purpose. Even after a divorce, the person who signed the corresponding contract must repay this loan. Usually both spouses are borrowers and are therefore initially both obligated to make the payments due to the bank. For the bank, it makes no difference whether the spouses are divorced or which of them still lives in the house.
However, the joint liability of a spouse can be considered immoral in exceptional cases, for example if a co-signing wife without income or assets would be completely financially overwhelmed by the loan and the bank was aware of this at the time of contract conclusion.
How to proceed with future installment payments depends on what happens to the property itself: If the house is sold, for example, the loan can be repaid from the proceeds. If, on the other hand, one of the ex-spouses takes over the property, it can be negotiated with the bank that only they continue to pay the installments. However, the bank is not obligated to agree to this. As a rule, a new loan agreement must also be concluded with the respective ex-spouse in this case. If the spouses are planning a real division, the financing bank must also be involved in this and its consent must be obtained.
Attention! For the early repayment of a loan – whether with or without concluding a new loan agreement – banks can generally demand a so-called prepayment penalty!
Dr. Christina Schmidt provides you with detailed information about what needs to be considered in divorce cases regarding real estate financing questions and how you can avoid expensive mistakes.
5. Homeownership in Questions of Equalization of Gains and Maintenance
In the case of divorce, homeownership also plays a role in maintenance questions and for the so-called equalization of gains. The latter refers to the equalization of the increase in assets of both spouses that occurred during the marriage, which must be carried out in the event of divorce. This happens when the spouses lived in the statutory matrimonial property regime of community of accrued gains, meaning they had not contractually agreed to a different property regime (separation of property or community of property).
What many people don't know: Even if only one spouse is the owner, the property can still be taken into account when calculating the equalization of gains! This applies at least in the case of increases in value, particularly through joint modernization measures by the couple. The sole owner of the house is also not allowed to sell their house without the consent of the other as long as the equalization of gains after the divorce has not been clarified!
The homeownership is also relevant for maintenance questions:
- For example, if a spouse obligated to pay maintenance transfers their ownership share to the other who continues to live in the house, this may need to be taken into account when calculating maintenance.
- A spouse obligated to pay maintenance who continues to co-finance the house after the divorce, even though only the ex-spouse lives in it, may be able to request that their installment payments be credited against the maintenance they owe.
- If a spouse uses the house alone while the other remains a (co-)owner, they usually have to pay compensation for use or rent. Such payments must also be taken into account when it comes to calculating appropriate maintenance.
Dr. Christina Schmidt provides you with detailed information on how jointly owned properties should be taken into account in matters of maintenance and equalization of gains. She develops the most favorable solution for you, negotiates in a goal-oriented manner, and represents you with commitment and assertiveness.
6. Ehevertrag und Scheidungsfolgenvereinbarung
As shown, real estate raises a variety of problems in divorce cases. This can be avoided if the handling of the property is clarified early in a marriage contract. If a separation is already emerging, the necessary agreements can also still be made in a divorce consequences agreement. Marriage contract geklärt wird. Zeichnet sich eine Trennung bereits ab, so können die notwendigen Vereinbarungen auch noch in einer Scheidungsfolgenvereinbarung getroffen werden.
Dr. Christina Schmidt is an expert in family law and advises you with expertise and experience on how you can make provisions for your real estate matters in a prenuptial agreement or a divorce consequences agreement. The timely amicable settlement of all related questions is usually the best choice. Scheidungsfolgenvereinbarung Vorsorge treffen können. Die rechtzeitige einvernehmliche Regelung aller diesbezüglichen Fragen ist meist die beste Wahl.
Are you a property owner and would like to make provisions for a divorce? Is a divorce perhaps already imminent? Dr. Christina Schmidt drafts and reviews prenuptial agreements or divorce consequences agreements with real estate relevance for you. She represents you in court and out of court in divorce proceedings where homeownership is involved: Whether it concerns asset division, consideration in maintenance issues, or problems with financed properties.
