Law

Division Auction in The Event of Separation / Divorce and Communities of Heirs

In connection with a separation from spouses, a common property of the spouses must also be regularly dealt with. If there is a disagreement about a sale or takeover by a spouse and the price for the takeover, there is a legal route: the division auction.

The division auction is not only an effective means of dealing with spouses who have to deal with real estate assets in connection with their separation, but also with a community of heirs. If the members of a community of heirs disagree about what should happen to the jointly inherited property, the division auction also remains.

The property is forcibly auctioned. Something indivisible, namely the house, is converted into something divisible, namely money. The spouses / heirs can then divide the proceeds among themselves. However, any spouse / heir can also participate in the auction to become the sole owner of the property.

The contact point for the application for a division auction is the auction court, a department of the local district court. In a first step, the court will commission an expert to draw up an expert opinion and determine the auction value. The spouses / community of heirs can use the time in which the application is pending before the court to come to an agreement. Often an application for a division auction is a door opener in stalled negotiations. The application for a division auction can be withdrawn at any time. If the spouses / heirs cannot come to an agreement, the court sets the date after the decision has become public.

Risk in division auction in relationship

One of the biggest risks with a division auction is that the property will be auctioned below its value. The applicant should therefore be present at the auction. If he stays away from the auction, a bidder can win the bid at the first appointment, even if he bids less than 70 percent of the estimated value. If the applicant is present, he can apply to the court that such a bid be rejected. If there is a second appointment, the court must reject a bid that does not correspond to at least 50% of the value. There is no limit to a third auction date.

On average, a process for a division auction takes one and a half years.

In order to facilitate a dispute among heirs, the testator has the opportunity to take precautions. He can rule out the dispute between the heirs in his will. The testator can also appoint an executor so that his will is implemented. Of course, he can also exclude a community of heirs from the outset by bequeathing the property to an heir and the other heirs receiving something of equal value.

Married couples have the option of stipulating their future property dispute in marriage contracts so that the division auction does not take place in the first place. Divorce lawyer Las Vegas can help in stipulate the matter.

Joint account – holders are jointly and severally liable

If (married) couples set up a joint checking account, they often opt for a so-called OR account. In the case of a so-called OR account, each account holder can in principle dispose of the account without the involvement of the other. It is important here: The co-owners of a joint account are jointly and severally liable to the bank. In other words, if the account is overdrawn by a co-owner, the bank can also request the other co-owner to settle the account in full. But there is also an “emergency brake”: Each account holder can revoke the other’s individual power of disposal at any time for the future. However, this does not apply to the past. Here you only have the option of reclaiming the compensation from the co-owner if the bank has made a claim.

If you have different spending behavior, you should in any case not grant individual power of disposal and set up a so-called and account from the outset, which you can only dispose of jointly.

Calculation of child support with mutual parity childcare

The classic division of childcare after separation of the child’s parents with one parent focusing on food is nowadays increasingly in favor of mutual, equal care (alternation model) of the children due to the employment of both parents and the desire of many fathers to care for their children to the same extent replaced both parents.

In this context, the case law had to deal with the question of how child maintenance is to be regulated in cases of mutual care. The legal regulation concerns the so-called residence model and the associated traditional division of employment and childcare. In such cases, it releases the child caring parent from cash maintenance. Childcare provided as part of a switching model, on the other hand, cannot lead to an exemption from cash maintenance in accordance with Section 1606 III sentence 2 BGB, because otherwise only the child’s care needs would be covered, but not the so-called standard need according to the rates in the state table.

According to the rulings of the Federal Court of Justice, the maintenance needs of a child in the change model are based on the parents’ mutual income and include, in addition to the resulting standard requirement according to the state table, in particular the additional costs of the change model. Both parents are liable for the needs of the child proportionally according to their respective income and financial situation (§ 1606 III S. 1 Civil Code).

Half of the child benefit is to be offset against the needs of the minor child, which means that each parent benefits from this half of the child benefit in accordance with their income-related share of the cash maintenance for the child; the other half of the child benefit is due to each of the two caring parents. As a result, the non-recipient of child benefit can request the parent entitled to receive a quarter of the statutory child benefit for the children themselves.

Example:

Father and mother practice equal care for their 10-year-old child. Father pays after-school care costs of $ 70.00 and travel costs of $ 45.00 per month. The mother receives the child benefit. She pays the music school from $ 90.00 per month. The mother has an income of $ 1,600.00 relevant to maintenance law, the father of $ 2,400.00.

The combined income of the parents of $4,000.00 results in the child’s regular needs according to the 2nd age group and 7th income group in the state table (as of January 1, 2021) of $ 543.00 per month. This includes the cost of clothing and meal allowances. Half of the child benefit must be deducted from this ($ 97.00), Section 1612 b I S. 1 No. 2 Civil Code. The standard requirement is accordingly $ 446.00.

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