In the divorce of an entrepreneurial marriage, a lot is at stake. For instance, the valuation of a GmbH share and equalization of accrued gains can also become an issue for the business.
If there is no prenuptial agreement, a couple automatically lives in the marital property regime of community of accrued gains. In this context, the equalization of accrued gains in entrepreneurial divorces is often problematic, especially if one spouse holds shares in a GmbH, explains the corporate law firm MTR Legal Rechtsanwälte.
In the equalization of accrued gains, the assets of the partners at the time of the marriage and at the time of the divorce application are determined separately. The difference between these two asset values represents the gain. If one spouse achieves a higher gain than the other, it is balanced, and half of the gained assets due is granted to the partner as compensation. In the equalization of accrued gains, shares in a GmbH, whose value may have increased during the marriage, are also considered.
The partner is then typically entitled to a monetary payment for their share in the gain of the shareholder shares. This can severely strain the business assets and possibly even the private assets. Alternatively, the divorced partner could also become a GmbH shareholder, which often is not possible due to corporate legal reasons and is only rarely desired.
A regular point of contention is also the valuation of the company shares to determine the gain. There are various methods of calculation here, which must be determined by the court in case of dispute. The so-called entrepreneur’s salary is also a frequent point of contention.
In addition to the equalization of accrued gains, the pension adjustment during the divorce of an entrepreneurial marriage also harbors conflict potential.
To avoid disputes regarding the equalization of accrued gains or pension adjustment, a prenuptial agreement can be made. In a prenuptial agreement, agreements on the equalization of accrued gains, pension adjustment, and other points can be made individually and deviating from statutory regulations. It must always be ensured that a partner is not unfairly disadvantaged, as corresponding clauses are invalid.
If there is no prenuptial agreement, the couple can also make a divorce settlement agreement. Essential regulations can also be made here. A divorce settlement agreement is still possible even if the divorce proceedings are already underway.
Im Family Law experienced lawyers advise on questions regarding prenuptial agreement and divorce at MTR Legal Rechtsanwälte.
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