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How do we agree on who will stay in the property after the divorce?

Posted by Angelo Arboscello on 27. October 2018
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Wie einigen wir uns, wer nach der Scheidung in der Immobilie bleibt?

Couples who divorce and own their own home are always faced with the question: What do we do with our property? Because there are many options. But which one is the right one? Because an exact answer depends on many factors: Does the couple have children? Would a partner like to stay in the property? How can couples decide that?

Real estate and legal experts make it clear: In principle, the ownership of the property must be distinguished from its use. In the case of separation and divorce, this is also regulated.

If two partners separate, one of them usually moves out. The other partner continues to live with the minor children in their own house or apartment. If the partner who is moving out wants to take one or all of the children with him to his new home, he must of course come to an agreement with the other.

If more than six months have elapsed since moving out, a return to the previous shared home is usually no longer legally enforceable. If none of the spouses wishes to move out in the event of separation, a court must decide who may use the shared property and who must move out. The judges base their decision on the welfare of the child. Because their goal is that the children can remain if possible in their used surrounding field, thus with the partner, who remains in the past dwelling.

If the husband moves out and the wife and the children stay in the same apartment – which is the most common case – she has to pay the separated partner a usage fee, i.e. rent. Unless the couple can agree that this housing value advantage is taken into account in the equalisation of gains.

This rent may initially be lower than the local rent. However, if the living conditions also survive the divorce, the man acquires the house and rents it out to his ex-wife, she then has to pay a regular rent.

The sale of the property does not have to be waited until the divorce, both can already sell the property in the separation year and divide the proceeds among themselves.

This reduces the time pressure when selling the property and has the advantage that in the event of a divorce there are funds available with which one partner can pay the other. This way should be gone however only if both are sure to get divorced and neither wants to remain in the real estate.

Are you facing a divorce and don’t know which of the options is the right one for your individual situation? Contact us now. We will be happy to advise you.

Photo: © vchalup

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