Divorce property and marital property regime

What happens to jointly owned property is usually one of the most difficult questions in a divorce. A crucial factor is who owns the property and what marital property regime both future ex-partners had.

If one partner owns the property alone, the decisive factors are when it was purchased and who paid for it. For example, if it was acquired and paid off before the marriage, it is only relevant for the purposes of calculating marital property gains if its value increased during the marriage.

Property acquired during the marriage

If the property was purchased during the marriage, the decisive factor is who paid for it. If both spouses are subject to the statutory property regime of community of accrued gains and both paid for the property, even though only one is registered as the owner, the non-owner is entitled to compensation through the equalization of accrued gains. However, if both parties have agreed to a separation of property, the equalization is based on so-called "unnamed" (or "marital") contributions.

The simplest solution

Many couples acquire a property during their marriage. They live under the statutory property regime of community of accrued gains. Both are listed as owners in the land register. And they financed the property with a loan. In the event of a divorce, many prefer to sell, as money is generally easier to divide than real estate. The proceeds from the sale can be used to pay off the remaining debt, and whatever is left over is divided. This way, neither spouse has any further legal ties regarding the property.

The most expensive solution

If one ex-partner wishes to remain in the property and neither is entitled to maintenance from the other, the departing ex-partner is entitled to compensation. The partner keeping the property can buy out the other and thus cover all the property's expenses. Alternatively, they can pay the departing partner compensation for use of the property.

The most complicated solution

If the person remaining in the property is entitled to maintenance, things become complicated. Then precise calculations are necessary: ​​What are the incomes of both parties? Is spousal maintenance or child support payable? What is the imputed rental value of the property? To what extent can the mortgage payments be claimed by the partner who is moving out?

In such complex cases, you should definitely consult a legal expert. A local, reputable real estate agent can advise you on the options available to you regarding your property.

Are you unsure what the best solution is for your property after a divorce? Contact us! We'd be happy to advise you.

Notes

For the sake of readability, this text uses the generic masculine form. Female and other gender identities are explicitly included where relevant to the statement.

Legal notice: This article does not constitute tax or legal advice for any specific case. Please consult a lawyer and/or tax advisor to clarify the facts of your individual situation.

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