In the divorce of an entrepreneurial marriage, a lot is at stake. The valuation of a GmbH share and the equalization of accrued gains can also become an issue for the company.
If there is no prenuptial agreement, a couple is automatically under the regime of community of accrued gains. Particularly the equalization of accrued gains is often problematic in entrepreneurial divorces when, for example, one spouse holds shares in a GmbH, explains the law firm MTR Legal Rechtsanwälte.
In the equalization of accrued gains, the financial position of the partners at the time of marriage and at the time of the divorce application is determined separately. The difference between these two assets represents the accrued gain. If one spouse has achieved a higher accrued gain than the other, it is balanced, and half of the accrued gain achieved is due 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 cash payment for their share of the shareholders’ accrued gain. This can significantly burden the business assets and potentially also the private assets. Alternatively, the divorced partner could become a GmbH shareholder, which is often not possible for corporate reasons and is seldom desired.
A common point of contention is also the valuation of company shares to determine the accrued gain. There are different calculation methods that 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 equalization in the divorce of an entrepreneurial marriage also carries potential for conflict.
To avoid disputes over the equalization of accrued gains or pension equalization, a prenuptial agreement can be made. In a prenuptial agreement, arrangements regarding accrued gain equalization, pension equalization, and other points can be individually and divergently from statutory regulations made. It should always be noted that one partner must not be inappropriately disadvantaged; any such clauses are invalid.
If there is no prenuptial agreement, the couple can also make a divorce settlement agreement. Here too, essential regulations can be made. A divorce settlement agreement is still possible when the divorce proceedings are already underway.
Im Family law Experienced lawyers at MTR Legal Rechtsanwälte provide advice on matters regarding prenuptial agreements and divorce.
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