Division of Business Assets in German Divorce Cases

German Family Lawyers

Division of Business Assets in German Divorce Cases

German Family Lawyers

If a married couple runs a German company, the liquidity of the company may be at risk in the event of a divorce. The division of the joint assets and, thus, of the company shares can possibly lead to the break-up and insolvency of the company. Therefore, efficient preventive measures that protect the company are of enormous importance. The prenuptial agreement is considered one of the most proven means in this regard.

The German law firm Schlun & Elseven Rechtsanwälte offers entrepreneurs comprehensive support in all divorce law matters – especially in connection with the division of joint business assets. Our German family law attorneys have in-depth expertise and many years of experience to enforce your interests quickly and effectively and to protect your business from damage in the best possible way.

In addition, as a preventive measure, we offer expert drafting and preparation of prenuptial and partnership agreements.

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Legal assistance in German Divorce Law

Clarification and Enforcement of Claims
  • Advice on all relevant asset issues

  • Business valuation for equalisation of gains

  • Tax-optimised asset division

  • Enforcement of family law claims and demands

Expertise
  • Assets: Duty and right to provide and receive information

  • Prenuptial agreement | Divorce settlement agreement

  • Division of property and equalisation of gains

  • Out-of-court settlement
  • Equalisation of gains: Valuation of debts | Insolvency law aspects

  • Equalisation of purchasing power in the case of additional profit

  • Relevant aspects of German inheritance law

The Importance of the Prenuptial Agreement in Germany

The prenuptial agreement is the surest way of protecting business assets following a divorce in Germany. The marriage contract (prenuptial agreement) is provided for under German law by § 1408 BGB. All married couples should consider it as it allows for certainty in the event of a divorce.

A prenuptial agreement designed and agreed upon at the right time can prevent bitter disputes between the pair from arising. In addition, the contract will provide clear guidance on gains made during the marriage, spousal maintenance and pension equalisation rights. It is the best time to draft the prenuptial agreement before the marriage (during the engagement) and in the early stages of the marriage. The best arrangements are prepared when the parties do not have a reason to believe the marriage will end soon.

Although a marriage contract should be considered by all couples, for entrepreneurial partners, it is vital. In Germany, the assets obtained during the course of a marriage are seen as the accrued gains of the spouses and thus will be divided equally in the event of a marriage ending. Although assets gained pre-marriage are not counted, this leaves you open to significant losses.
This statutory requirement for accrued gains is provided for under § 1363 BGB and states that this is the statutory requirement if there has not been an agreement:
(§ 1363 BGB) Community of accrued gains

  1. The spouses live under the property regime of community of accrued gains if they do not by marriage contract agree otherwise.
  2. The property of the husband and the property of the wife do not become the common property of the spouses; the same applies to property that one spouse acquires after marriage. The accrued gains that the spouses acquire in the marriage, however, are equalised if the community of accrued gains ends.

Without the prenuptial agreement limiting what the other spouse is entitled to in the event of a divorce, the entrepreneur leaves themselves open to significant disruption, potentially losing their business. Working alongside an expert family lawyer is crucial in drafting and assessing the prenuptial agreement.

Finally, it is noteworthy that the parties can alter prenuptial agreements in the future. It is advisable to consult with legal experts when making such changes to ensure that they remain in line with the requirements of German law. Improper actions can leave the individual open to legal conflicts in the future.