What does a common house look like

The home in the event of separation and divorce

All people dream of eternal love at their wedding. Nevertheless, roughly every third marriage in Germany ends in divorce. According to statistics, marriages in this country break up after around 14.9 years (as of 2015). Attorney Holger Schiller gives tips on what homeowners should look out for in the event of a divorce.

For many young families, their own house or apartment is still the big goal. However, joint ownership of a property carries additional risks. So a divorce is not just a personal crisis, it can have profound financial consequences. Those affected must therefore ask themselves what to do with the property they share if the marriage breaks up.

Since the ownership structure is different in every family, many questions arise from the separation, at the latest from the divorce:
  • Which partner is moving out of the shared apartment / property?

  • Which parent do the children stay with?

  • Who bears the house loads? The one who lives in the common home or maybe the financially better off partner who has moved out?

  • Can a spouse request that the marital home be assigned to him by the family court for his sole use, even though he has no or only half ownership of the property?

  • How is the debt burden taken into account in the maintenance calculation?

  • How can a spouse be released from the jointly concluded loan agreement with the bank?

  • What if a spouse refuses to sell the property?

This selection of the most important questions shows that a strict distinction must be made between separation and divorce.

The decision of who will stay in the same house after the separation, for example, has a significant influence on the amount of separation and child support. Both the dependent with the children and the dependent can remain in the property they use themselves during the separation phase and after the divorce, as far as this is possible. However, this has an impact on the maintenance to be paid, as this can increase or decrease due to the so-called residential value.

The spouse who lives in the property must have living in their own property counted as an income advantage, as they save the rent. Depending on the income situation, this can mean, for example, that the dependent spouse, who lives in the house and pays the loan installments, has to pay higher maintenance than he can actually afford. Because the living advantage is added to his income with a fictitious value, although he does not have it "in his wallet". This maintenance constellation usually means that the house has to be sold.

Residential advantage

The advantage of rent-free living in one's own house or in the condominium is referred to as the residential advantage. As an economic use of wealth, it is treated like income. In the case of spousal maintenance, the residential value of the remaining spouse according to the only limited use with the so-called reasonable during the separation period until the final property dispute (the so-called gain adjustment) or until the final failure of the marriage (usually from the delivery of the divorce petition to the other partner) Housing value is set, which is usually lower than the local rental value. The case law assumes that the apartment is too big for the person left in the house after one of the spouses has moved out. Therefore, only the appropriate housing advantage is used. The yardstick during the first year of separation is therefore what rent a spouse would otherwise pay for a suitable apartment.

The situation is different if the spouses have already discussed the common house and, for example, one of the spouses has taken over the co-ownership share of the other spouse - which is possible during the first year of separation.

From this point onwards, too, the full residential advantage is to be taken into account in the amount of the local rent. This also applies if the requirements for a divorce are not yet met and the so-called separation year has not yet expired.

The full residential value must be taken as a basis at the latest when the application for divorce is pending. If the spouse who remains living in the house pays the house charges, he can deduct them, reducing the living value. The apportionable costs that would normally also be charged to a tenant cannot be deducted. These are in particular the usage-dependent additional costs.

Who stays in the house?

With the complete separation, the question arises who will stay in the same house and who will move into another apartment. Important: As a result of a separation, neither spouse is entitled to the move-out of the other. The law assumes that the spouses can live separately within the shared home. This is the case when they no longer manage, sleep and eat together. If one of the spouses wants to use the house alone, but the other does not want to move out, an application can be made to the family court for the allocation of the house - but only if this is necessary to avoid undue hardship.

To avoid misunderstandings: If a spouse has moved out of their own free will to avoid further arguments and has left their personal belongings in the house, they are still entitled to return to the common house. Leaving does not constitute an actual move-out or move. However, if a spouse has moved out with all his belongings, he can only move in again against the will of the other if he has his will within six months of moving out
to return and the return is reasonable for the other spouse. Otherwise, a return is not possible, even if the spouse who moved out is the sole owner of the house.

If both spouses are owners of the house, the law assumes that the person who leaves the house can demand remuneration from the other, provided that this is fair, i.e. creates an appropriate balance with regard to the different interests. So whoever stays in the same house pays a kind of rent to the other. However, this requires a clear request for payment, nothing can be requested retrospectively. A usage fee or usage fee does not apply, for example, if the income-free spouse stays in the house and looks after their children.

The final use of the marital home by a spouse after the divorce is regulated by Section 1568a of the German Civil Code (BGB). According to this, one spouse can demand that the other spouse let him or her share the apartment after the divorce if he is more dependent on it than the other spouse for the good of the children living in the household and because of his or her own living conditions, or if the transfer is due to other reasons Equivalence.

Take ownership

If a spouse wants to take over the co-ownership share of the other - regardless of the right of residence - then he has to buy his share in the amount of the market value. If the value cannot be determined by comparison objects, information from banks or brokers, an expert must often be called in in the event of a dispute. If the house is already debt free, the purchase price may need to be financed by the spouse in order to pay off the other spouse. If there are joint debts on the home, it must be clarified who will bear the debt burden in the future.

If the spouses only agree among themselves that one spouse will pay the loan installments, the other spouse continues to bear the risk that the bank will also take action against him as the borrower in an external relationship in the event of default in the installments, even though he no longer has any property himself. It is therefore urgently advisable to also remove the paid spouse from the loan agreement. However, for this you need the express consent of the bank. Their approval often depends on whether the alimony payments between the spouses and any claims for profit equalization have already been clarified in order to ensure the solvency of the
to be able to judge the paying spouse.

However, what can one spouse do if the other spouse absolutely does not want to sell to him and rejects any purchase price offer, arguing that the price is too low? In this case, the other spouse can only force the property to be auctioned for division in a lawsuit. Both spouses can bid in the division auction. However, this solution is economically disadvantageous for both spouses, since the highest bid in the division auction usually does not reach the real value of the property as in a private sale. In the case of a very high financing share due to a lack of equity, it could even happen that the bid does not cover the debts and both spouses are liable for the remaining house debts - without any real estate security. If the spouse who has moved out has acquired the property, he can demand the customary rent from the other, who has a right of residence.

Expert tip: Every family therefore needs a case-by-case solution after separation, especially if there is co-ownership of a property. Legally, it is also possible for both spouses to remain owners of the property and only make a regulation about use and costs. However, practice shows that a clear legal and financial line in all matters is a better choice for both spouses.