The joint account on separation: withdraw, freeze, divide

Who owns the money in the joint account?

The balance belongs to each of you in equal halves, unless you have agreed otherwise § 430 BGB. This applies even if, while you lived together, only one of you had their salary paid into the account BGH FamRZ 1990, 370. Whoever paid in more does not automatically get more.

Most joint accounts in Germany are either-or accounts (Oder-Konto). Toward the bank, each holder may dispose of the account alone, withdrawing and transferring money without asking the other § 428 BGB. With a joint-signature account (Und-Konto), both have to agree. Which type you have is set out in the account agreement.

May the other spouse empty the account?

Toward the bank, the other spouse may do so; between the two of you, they may not. If one of you withdraws more than their share after the separation, the other can demand the excess back. What usually matters is the balance on the day of separation: each of you is entitled to half of it.

You only have to show that the other received more than their share. If they claim you agreed otherwise, they have to prove it BGH, judgment of September 23, 1992, XII ZR 66/91. That they paid in more is not enough.

Withdrawals during the marriage are a different matter. As long as you lived together, courts usually assume that you waived any settlement between you. If one of you spent more on themselves years ago, that does not have to be made up after the separation. It is different if someone abused that trust, for example by moving larger sums into an account of their own shortly before the separation.

What to do in the first few days

First, record the balance on the day of separation, with a statement or a screenshot. This balance counts for the settlement between you. In the Zugewinnausgleich (equalization of accrued gains), it is the benchmark that shows whether assets have disappeared. From the separation onward, each spouse can demand information from the other about their assets on the day of separation § 1379 (2) BGB.

Then it is about access:

• Revoke individual authority. Many banks allow each account holder to revoke the other’s authority to act alone, with effect for the future. The account then becomes a joint-signature account, and every transaction needs both.
• Check standing payments. Find out beforehand which standing orders and direct debits run from the account, so that rent, loan installments and insurance continue to be paid.
• Redirect your salary. Have your salary paid into an account of your own from now on and transfer shared costs from there.
• Revoke powers of attorney. You can revoke a power of attorney over your own account at any time § 168 sentence 2 BGB. Tell the bank in writing and have online banking access blocked.

If you withdraw money yourself, take no more than half and record the amount and date in writing. Whoever withdraws everything first does not create facts. They create a claim against themselves.

Who is liable for the overdraft

Toward the bank, both of you are usually liable for the overdraft. Under the usual account agreements, holders of an overdrawn joint account are jointly and severally liable. The bank can therefore demand the full amount from either of you, including the spouse who did not spend the money.

Between the two of you, you bear the debt in equal shares as a rule § 426 (1) BGB. If one of you overdrew the account for their own purposes after the separation, they have to bear it alone. So revoke individual authority even if there is hardly any balance in the account. How joint loans are handled is covered in Debts in the divorce: who is liable for the joint loan?

An account in one name only

An account in the name of only one of you belongs, as a rule, to that spouse. The other has no access and cannot demand information from the bank. Such balances are dealt with in the Zugewinnausgleich (equalization of accrued gains), not through the account itself.

There is an exception for joint saving. If you both saved in an account held in one name and you intended the money to belong to both of you, the balance may belong to you jointly, even without an express agreement BGH, judgment of April 19, 2000, XII ZR 62/98. Do not rely on that without evidence, such as joint deposits or purchases for both of you from the balance.

How the account counts in the equalization of gains

On the cut-off date, the day the Scheidungsantrag (divorce petition) is served, the balance of an either-or account counts half toward each of your final assets § 1384 BGB. A claim for excessive withdrawals counts as a receivable for one of you and as a debt for the other.

In the Zugewinnausgleich (equalization of accrued gains), this often evens out, because the money withdrawn also sits in the final assets of the spouse who took it. The claim matters on its own if you agreed on Gütertrennung (separation of property) or if the Zugewinnausgleich (equalization of accrued gains) is excluded. The same applies if the money was withdrawn only after the Scheidungsantrag (divorce petition) was served, or if you need it before the divorce. If the assets on the cut-off date are lower than stated in the disclosure for the day of separation, the spouse who owns them also bears a burden of proof. They have to show that they did not give them away, squander them or set them aside to the other’s detriment § 1375 (2) sentence 2 BGB. More on this in Disclosure of your spouse’s assets: what you are entitled to.

The next step

At our office, attorney Dietrich Karcher handles questions about the Zugewinnausgleich (equalization of accrued gains), and attorney Mieke Karcher handles maintenance during the separation. The first consultation costs up to €190 plus VAT, at most €226.10 in total. If we take on your case, this fee does not apply. How the further fees are calculated is set out under Costs. What else applies as soon as you separate is described in Separation before the divorce: what applies at once.