Divorce when a greatdeal is at stake

Under the statutory matrimonial property regime your assets are not divided at all. Divided is only the growth during the marriage, and of that only half the difference between what each spouse gained (§§ 1373, 1378 BGB). What sounds like a great deal at first often shrinks considerably in the calculation, once initial assets, latent tax burden and the margins of valuation have been entered correctly.

A company is as a rule valued by the modified capitalized earnings method, usually through a court-appointed expert. What counts is the value on the day the divorce petition is served (§ 1384 BGB). With fluctuating business results the moment of filing therefore belongs to the strategy and is not left to chance. How that works in detail is set out under Valuing a business in the equalization.

One distinction defuses a great deal of the worry. What is equalized is the value of the business, not the business. The equalization of accrued gains is a claim for money and transfers no shares in a company.

For business owners and executives a separation is never only private. What reaches the courtroom can touch business partners, fellow shareholders and your own standing.

Three things work against that, and none of them is a promise. They are either the law as it stands or a question of the route taken. First, everything you entrust to us falls under the attorney's duty of confidentiality, from the first conversation onwards, even where no mandate follows from it. Second, family matters are not heard in public. Third, an out-of-court settlement keeps sensitive figures out of the proceedings from the start, and where that serves your interests we work towards it.

What cannot be prevented altogether is the flow of information to the other side. In the equalization of accrued gains there is a right to disclosure, and it reaches into business assets as well (§ 1379 BGB). Anyone who expects that can prepare for it.

The costs follow the Verfahrenswert (value of the proceedings), which the court assesses from the income and assets of both spouses (§ 43 FamGKG). Court and attorneys bill under the statutory schedules (FamGKG, RVG), so the figures can be checked and are not freely negotiated.

With larger assets the value of the proceedings turns out correspondingly higher. For the fees only that value counts, not how hard the fight is. An amicable, discreet solution is therefore often not merely the quieter route but also the cheaper one. The basics are set out under What does a divorce cost?

Mandates of this kind are the reason the practice is set up the way it is. The asset side is with Dietrich Karcher, attorney at law, more than 30 years in civil law, law degree from Ludwig Maximilian University of Munich, offices in Munich, Frankfurt and Granada. What matters most for this work are the years outside the profession, self-employed in real estate and as head of the real estate division at a Landesbank. He therefore reads a valuation report not only as a lawyer but also against the question whether a bank would later finance the solution. The family court proceedings are conducted by Mieke Karcher, attorney at law, admitted since 2010 and a member of the Rechtsanwaltskammer Frankfurt am Main. New enquiries come to her as well.

In practice the work begins with a confidential inventory. Company, real estate, capital, income, any prenuptial agreement. After that the initial and final assets are prepared, an expert is brought in where needed and every component of income is examined. Only then comes the decision about the route. Where a discreet Scheidungsfolgenvereinbarung, a divorce settlement agreement, protects your interests better, we aim for it; where enforcement is necessary, we represent you through to the court order.

The first conversation takes place at the Frankenallee in Frankfurt-Gallus or by video, in German, English or Spanish as you prefer. What it costs we tell you beforehand; if a mandate grows out of it, the amount is credited against the total bill. To a written enquiry we usually reply within one working day.

The outward course is the ordinary one. Year of separation, divorce petition, hearing, court order. The real work lies before that. At the beginning stands the confidential inventory of company, real estate, capital and income, and depending on how complete the documents are it takes a few weeks. Then the initial and final assets are prepared and, where a business is involved, an expert is brought in. An earnings value report takes several months in practice and usually sets the timetable for the entire proceedings. Alongside that, every component of income is examined and the pension rights adjustment prepared. Only once the figures hold does the negotiating begin, either towards an agreement that keeps sensitive figures out of the proceedings or, where that does not carry, through to the order of the court.

The basics of the asset calculation are explained on our page on assets and accrued gains, the pension entitlements on pension rights adjustment. For real estate two separate levels apply, the matrimonial home, property and household goods for use and ownership, Property in the equalization for the value.

Where the question is how to raise an equalization claim without touching the business, read Paying the equalization without breaking up the business. If assets lie abroad, the question of the applicable matrimonial property law comes first, see Foreign assets in the equalization. And if you would rather arrange things in advance than negotiate later, there are prenuptial agreements and Excluding the equalization of accrued gains by prenuptial agreement.