A basic idea of how a division of assets and marital savings after a divorce after divorce happen, many people have that things that were earned during the marriage are to be divided in a divorce. Again and again, one experiences that people want what they are “legally entitled to”, but then are surprised about applicable law. In general, it can be said that no one particularly likes to share their “own” money. Especially not with a person from whom one will have nothing in the future. That is human nature. The law tries to strike a balance and make fair solutions possible.
What is the legal situation with a division of assets and marital savings after a divorce after a divorce? What is to be divided?
If nothing else has been agreed, the principle of separation of property applies during the marriage. In simplified terms, this means that each person owns his or her own property. If the wife earns an above-average income and can save some of it away, it is her property during the marriage. However, this situation of separation of property changes in the case of divorce. This is when there is a division of property. This means that marital property (savings and marital property) is suddenly divided. The idea is that the marital achievements, i.e. “what you have built up together”, should be divided. The specific ownership of property is not relevant in the division.
If one person worked outside the home and one person took care of the household and the children (more), it is irrelevant in the division whether the savings were fed only by the income of one person. After all, the other person made his or her contribution through household and child care. In marriage, the money has no mascherl. Unless there is a gross imbalance, courts normally assume that the spouses’ contributions are equal and divide assets 50/50. If one person earns alone and the other is a homemaker or housewife, equal contributions are usually assumed. Sometimes sole earners think that the other person should get nothing in the event of a divorce because he or she “earned nothing”. But this is incorrect. Debts related to marital property or savings are to be deducted before the division (e.g. loan for the joint house).
What is not to be divided?
Assets created during the marriage are to be divided. Assets brought into the marriage are not to be divided. Contributed assets are, for example, things that one spouse already had before the marriage, e.g. a (paid-off) condominium or a building society savings account. Also not to be divided are things that were inherited (even during the marriage) or given by a third party. Things that serve the personal use or the professional practice of one of the partners or belong to a company are also excluded from division. Companies as such as well as company shares (except for mere investments) are also not to be divided.
How do (court) proceedings work?
If people divorce by mutual consent, they must agree on the main consequences of the divorce. This also includes how the marital assets, i.e. marital savings, marital property or debts are to be divided. If no agreement can be reached here, a divorce by mutual consent cannot take place. If the marriage is not dissolved by mutual consent but, for example, by a final court decision following a divorce petition, each (ex-)spouse may file a petition for judicial division. Judicial partition proceedings only take place after the divorce. As a rule, the court responsible for the division proceedings is the court where the divorce proceedings were also conducted.
It is important to note that you do not have forever to apply for the division. Specifically, you have one year after the divorce. If you miss this deadline and do not file an application within one year after the divorce has become final, everything will remain as it is and the ownership structure will continue to exist. By the way, division proceedings can also take place if there are no assets, but there are joint debts. If a court has to decide on the division, it will first clarify whether an agreement between the parties is possible.
What happens next?
If an agreement cannot be reached, the judge will take evidence, e.g. documents, photos, witnesses, hearings of the parties. Again and again, experts must be called in to determine the value of certain objects or properties. The court finally decides by order. If you do not agree with the decision, you have the right to appeal.
In summary, assets are divided in a divorce either because the parties agree on it (in the context of a divorce by mutual consent) or if one person files a corresponding court petition after the divorce.
Read more about the position of the marital home in a divorce here.
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