Partition auction and equalization of gains
June 26, 2009 | 50,00 EUR | answered by Dr. Dr. Danjel-Philippe Newerla
As part of a divorce proceeding at the District Court Offenbach a.M. since January 2005, the issue of equalization of gains must also be decided. The last hearing on this matter was on 11.12.2008. The responsible judge has not yet announced a court decision, citing court overload.
In the meantime, my wife initiated the partition sale of our shared house and successfully bid for it on 17.06. for 133,000 euros. The distribution date is 30.07.2009.
Since I was already the owner of this house at the time of marriage in 1974 (having acquired half from my divorced wife), a claim for equalization of gains in the amount of 78,000 euros (determined by the court appraiser) is calculated in my favor.
Question: What should I do in order to object to the distribution of the surplus proceeds at the distribution date? My wife's lawyer has threatened to file a lawsuit immediately if I refuse my consent, and I could potentially face significant claims for damages since I do not yet have a court-ordered claim against my wife from the divorce proceedings. However, I believe that the ongoing proceeding is close to conclusion and the outcome should be awaited, with reservations.
There is a risk that I may not receive the equalization of gains that I am entitled to. Should I perhaps file a corresponding application with the Family Court Offenbach to have the equalization of gains officially recognized for the necessary reasons?
Dear seeker of advice,
Thank you for your inquiry!
I would like to address your questions in consideration of the situation you have described as follows:
I understand your problem very well, and unfortunately, the objection raised by your colleague is not entirely unfounded.
The issue is indeed that you are not yet legally divorced at the current time, and therefore the proceeds of the auction, as well as any potential surplus, should be divided equally between the two of you, so that each receives 50%.
Based on your description, you likely have a claim for equalization of gains against your wife, meaning that your wife will have to pay you something. This claim exists regardless of how the auction proceeds.
Therefore, your legal position is not necessarily worsened by the forced auction, as even if the surplus is distributed equally, you would still have your claim for equalization of gains.
You could also inform the court that due to this situation, a swift titling of the equalization of gains claim is desired.
However, as mentioned before, your claim exists regardless. If your wife were to waste or hide the auction proceeds, which are significant, you could still hold her accountable under the principle of creditor disadvantage according to § 242 BGB.
Since it is a joint property, and you both are co-owners, it is generally lawful for each of you to receive half of the surplus. Therefore, in my opinion, a contradiction would not have a sufficient chance of success.
I would like to conclude by pointing out the following:
The legal advice I have provided is based solely on the information you have provided. My response is only an initial legal assessment of the situation and cannot replace a comprehensive examination of the circumstances.
Adding or omitting relevant information can lead to a completely different legal assessment.
I hope that my explanations have been helpful to you.
Feel free to contact me through the follow-up option on this platform or via my email address for further questions.
I am also available to represent your interests further if needed.
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Wishing you a pleasant Friday afternoon!
Kind regards,
Dipl.-jur. Danjel-Philippe Newerla, Attorney at Law
Heilsbergerstr. 16
27580 Bremerhaven
kanzlei.newerla@web.de
Tel. 0471/3088132
