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March 4, 2012 | 30,00 EUR | answered by Michael Herrmann

I, as the wife of my husband, am in the process of filing for personal bankruptcy (debts only concern me from the past). Is it better to file jointly or separately? What can be seized, only mine or also my husband's? I request assistance.

Michael Herrmann

Dear questioner,

First of all, thank you very much for your inquiry, which I would like to answer based on the information provided and in the context of your commitment to an initial consultation. The response is based on the description of the situation. Missing or incorrect information about the actual circumstances can affect the legal outcome.

In principle, spouses are jointly liable for tax debts. However, you can apply for a splitting decision according to § 279 AO. This breaks the joint liability. After the splitting decision, each spouse only owes the tax that is allocated to them according to the decision. The other spouse does not need to agree, nor can they veto – the tax office must split upon request.

When it comes to seizure, the situation is not as clear-cut. According to § 739 paragraph 1 ZPO, the enforcement officer can rely on the presumption of ownership according to § 1362 of the Civil Code and transfer it accordingly to possession: He may assume that the items in the marital home belong to the debtor. The same applies to registered items. Items that are obviously only used by the other spouse, such as clothing or jewelry, are exempt.

If items owned solely or jointly by the other spouse or partner are seized, they can file a so-called third-party objection lawsuit according to § 771 ZPO against the enforcement.

I hope that this information provides you with a sufficient overview of the situation in the context of your commitment and this initial consultation.

Yours sincerely,

Michael Herrmann
Tax Advisor
Diploma in Finance (FH)