It is common practice to assert the distribution of surplus within the framework of the divorce. This means that the family judge decides on the amount of the distribution of surplus during the divorce process.
This is advantageous because the judge can then take into account a possible interaction between maintenance and gain. In addition, this procedure is more cost-effective, because the process value of the divorce is added to the process value of the distribution of surplus. This approach is always advantageous when the legal force of the divorce is to be delayed for as long as possible, e.g. because there is only a claim to separation maintenance, but not to post-marital maintenance.
However, this procedure can also have major disadvantages. Once the claim for distribution of surplus has been asserted together with the divorce, it is almost impossible to separate them again. In the worst case, the divorce verdict can be blocked for years.
Especially when there is a dispute about the valuation of a property or the valuation of a company, it can take years before its value can be determined bindingly by an expert report. In these cases, it may be advisable to have the value of the asset clarified in advance by means of a so-called independent evidence procedure.
Furthermore, the delay in the divorce can result in significant interest damage. The compensation claim is only due when the divorce becomes final and is therefore only subject to interest from this point in time.
Example
Wife W has a compensation claim of 500,000 euros against her husband H, a dentist. She asserts this claim as part of a step application (information and payment) in the divorce.
If the legally binding divorce is delayed by two years because an expert opinion has to be carried out regarding the valuation of the practice, W’s interest of 5% above the basic discount rate of the ECB is lost. For a period of two years, that’s 51,250 euros.
This is why the advantages and disadvantages of this approach must be carefully considered before submitting the procedure of distribution of surplus in the divorce process.
We would be happy to advise you in detail on this matter.
