Vermögen: Getrennt, aber nicht geschieden – die unterschätzten Risiken

In Germany, approximately one million people live permanently separated from their spouses, according to the population census “Mikrozensus” by the Federal Statistical Office. Jens Göke, a Berlin-based family law attorney and mediator, explains that some couples prefer to live apart for longer than they are together, due to fear of conflict and satisfaction with their financial resources. However, this relationship model comes with several risks that couples should consider.

1. Tax-class change: Separated couples can file a joint tax return for the year of separation and continue to benefit from the tax advantage of the higher-earning spouse. Starting from the following year, they are obligated to switch to tax class I or II, depending on whether they are single parents with children. To maintain the tax-splitting advantage, the partners would need to seriously consider reconciliation for a certain period.

While a single day or a weekend might suffice legally, it is the overall circumstances that matter. The tax office considers whether the partners have lived together as a couple or made a genuine effort to reconcile, not just where they are registered. Providing false information to the tax office can lead to significant consequences, including financial and potentially criminal penalties.

2. Child support: Separated couples usually no longer live together and have different financial circumstances. In practice, both parties often reach an arrangement that satisfies both sides. Legally, the lower-earning spouse is entitled to maintenance payments. It is a common misconception that maintenance payments only apply for the first year.

These payments must continue until the divorce becomes legally enforceable, which typically occurs one month after the divorce decree is served and no further legal appeals are filed. Delayed divorce may result in the need for the separated partner to contribute to the other’s long-term care costs. However, there are exceptions: if the separation period is unusually long, there might be no entitlement to maintenance.

Additionally, maintenance payments may be considered if the maintenance-entitled spouse lives in a new marital-like relationship.

3. Increased wealth sharing: Unless otherwise agreed in a prenuptial agreement, couples are in a joint wealth-sharing community. This means that the spouse who has experienced a greater increase in assets (increase) must pay half the difference to the other spouse as compensation. The date that determines the calculation of the wealth-sharing contribution is the day the divorce petition is sent to the other spouse, not the day of separation.

Therefore, if either spouse wins the lottery or starts a successful business after the separation, they must share the gains with their ex-partner upon future divorce. However, there is a loophole: if the couple has been separated for at least three years, the paying spouse can make a premature wealth-sharing payment without meeting additional requirements.

Under certain circumstances, a premature wealth-sharing claim can even be requested before the separation, such as when a partner secretly accumulates wealth or intentionally wastes it, or when the other partner fails to provide timely information about their assets in response to a request.

4. Benefit-sharing differences: Upon divorce, the pension entitlements acquired during the marriage must be balanced between the partners. This assessment is automatically determined within a divorce proceeding and must be balanced accordingly. Consequently, the spouse with higher pension entitlements might prefer to avoid divorce.

Like in the wealth-sharing case, the date of the divorce petition delivery is the determining factor for calculating the benefit-sharing, not the day of separation. In cases of unusually long separation periods, the benefit-sharing may be reduced for fairness reasons, but this decision is made on a case-by-case basis. If both parties have legal representation, they might exclude or partially exclude the benefit-sharing during the divorce hearing. Alternatively, they can reach an individual agreement with a notary before the court proceedings.

5. Unintended heirs: A separation does not change the fact that spouses remain legal heirs to each other. Even if a couple expressly excludes each other in a will, they retain their legal rights as heirs.