Assets

In the event of a divorce, the property relations must be clarified. This depends on the matrimonial property regime: joint ownership, separation of property, community of property or old-law matrimonial property regime. Real estate can be in sole, co- or joint ownership.

In the case of investments over several years, profit or loss must be calculated for each phase. If both spouses have a financial interest in a property, an accounting must be made between them. They may transfer assets and debts to each other upon divorce, or one may have to make a settlement payment to the other.

Purpose

The purpose of the property settlement is to clarify the financial situation of the spouses with assets and liabilities in the event of a divorce and to leave each spouse his or her share or, if necessary, to allocate it. The spouses' joint ownership of assets is dissolved unless they wish to retain joint ownership beyond the divorce.

Scope of services

FairDivorce123 handles the following issues:

• Recording of assets and liabilities in personal property, acquired property or joint property
• Calculations for community of acquired property and general community of property
• Sole ownership, co-ownership, joint ownership (marital partnership)
• Initial financing of real estate through own and borrowed funds
• Phase calculations for real estate (acquisition, investments/irregular amortization payments, disinheritance of WEF payments, divorce)
• regular amortization payments
• Consideration of claims from ZGB 206 and ZGB 209 or ZGB 238 f.
• profit and loss distribution for real estate
• WEF payments with profit distribution and settlement in case of loss
• Global settlement in the case of several properties with gratuitous contributions
• Profit distribution in the case of regular, long-term payment of mortgage interest from other property/owner estates
• Treatment of lump-sum settlements, cash disbursements and disinherited WEF payments (inheritance, capitalization, own property), with 2 variants
• Sales of real estate already during the marriage
• Presentation of assets and liabilities according to assets and spouses
• Calculation of a possible equalization payment
• Possibility of allocating assets to the other spouse, with automatic consideration of the effects on equalization payments
• Calculation of a final payment owed (matrimonial compensation, debts), taking into account any transfers of property and debts between the spouses
• Presentation of the assets of each spouse after the divorce

The matrimonial property regime

FairDivorce123 takes into account the matrimonial property regimes of joint ownership, general community of property and separation of property under Swiss law. Foreign regulations are not taken into account.

Marital contract modifications of the mentioned matrimonial property regimes (except for proposal regulations on death) and limited community of property are not included and calculated. Old-law matrimonial property regimes and old-law joint property regimes are also not taken into account.

Unless a marriage contract is concluded, spouses residing in Switzerland live under the matrimonial property regime of joint ownership, and in exceptional cases provided for by law or ordered by a court, under the matrimonial property regime of separation of property. Community of property requires a corresponding marriage contract, separation of property likewise (except in the exceptional cases mentioned).

An old-law matrimonial property regime exists if it was desired to maintain it when the new matrimonial property regime was introduced in 1987.

Forms of property

The spouses may hold assets, including land, in sole ownership, co-ownership and joint ownership (as a marital partnership).

In the case of co-ownership, the ratio of the two co-ownership shares can be entered precisely (50:50, 40:60 etc.), as can the shareholder shares in the case of a spousal partnership.

Rural land rights are not dealt with.

Structured question process

FairDivorce123 offers the user a simple question process that systematically covers the property law aspects.

It starts with the clarification of the matrimonial property regime.

Then the assets and debts of each spouse are recorded and assigned to the various property classes (own property, acquired property, total property).

Deferred tax liabilities (real estate gains taxes) and marital debts (maintenance, additions pursuant to Art. 208 of the Swiss Civil Code) are also inquired about.

In addition, it is asked whether and to what extent one spouse finances his or her assets from more than one mass and whether the other spouse has also participated financially in this, if so to what extent and from which masses.

Any cash payments and lump-sum settlements from pension funds and insurance companies made during the marriage are also recorded and treated in terms of property law.

Calculations

In the case of joint ownership and community of property, FairDivorce123 calculates profit and loss for the invested property masses of both spouses, particularly in the case of real estate. These are calculated and allocated from a different mass in accordance with the statutory rules for contributions by the spouses or for investments by the owner spouse.

This also applies if a property has been sold during the marriage.

If one spouse regularly pays the mortgage interest on the owner-occupied property of the other spouse over a longer period of time or if he or she pays mortgage interest on an acquired property owned by him or her from his or her own property, a conjunctive gain is to be reallocated. However, this does not apply to owner-occupied family properties, nor to provisions for ordinary maintenance or to an owner-occupied property rented to a third party, the income from which flows into the acquired property and covers the mortgage interest.

If there are several properties with financial participation of both spouses, a global calculation with balancing of the claims is prepared.

Over time, there may be several financially significant events: Investments in real estate, new mortgages or increases in mortgages and WEF payments, amortizations. Each such event starts a new phase that needs to be calculated. Without software, this would be cumbersome.

Often amortization payments are made over longer periods of time. We provide a separate question field for this purpose, which enables their correct consideration.

If a property co-financed with a WEF advance suffers a loss, this can lead to a reduction in the advance to be repaid (and to a reduction in the pension assets). The corresponding calculation is made in the event of a loss in the case of WEF advance withdrawals.

Initial financing

When acquiring larger assets in particular, it is crucial to record the initial financing correctly. A backup function in the question process ensures that the financing from possibly different sources is fully determined.

Matrimonial property law

Once the assets and liabilities of each spouse have been determined and calculated, the property settlement takes place. This may result in a settlement payment which one spouse must make to the other in order to complete the dissolution of the marriage in terms of assets.

Mutual debts, including those to the spouses' own property, are settled and the spouses' property rights are recorded.

It is also possible for the spouses to transfer assets and debts (mortgages) to each other and receive corresponding compensation payments in return.

Special case: cash payments and lump-sum settlements

If during the marriage one spouse receives

• a cash payment from the pension fund
• a lump-sum settlement from a pension fund or an insurance company (due to incapacity for work and loss of benefits, but not in the case of life insurance policies with a surrender value), or
• a lump-sum settlement as a result of the de-commitment of a WEF advance withdrawal after reaching retirement age

in the case of a matrimonial property regime, these benefits are initially included in the beneficiary's acquisitions, i.e. before the date of dissolution of the matrimonial property regime (initiation of divorce proceedings, change of matrimonial property regime). The relevant time is the time when the claim arose.

In the event of a divorce, such a benefit is subsequently divided arithmetically into acquired property and personal property (Art. 207 Para. 2 CC). The personal property corresponds to the capital that would be equivalent to the future pension provision if the divorce proceedings were initiated. As part of the pension equalization, the non-marital and marital shares are calculated in a further step. Appropriate compensation is to be paid only for the marital shares.

The lump sum calculated in this way is to be credited to the pension-entitled spouse's own estate; the remaining part of the original lump sum remains in his or her estate. These are only calculated amounts, not real amounts.

From the lump-sum amount, the part that was own property in the first place and remains in this property is to be excluded:

• Satisfaction
• Compensation for material damage, expenses, legal costs
• medical expenses

The community of property has a corresponding provision in Art. 237 of the Civil Code, whereas the separation of property does not.

There are two different opinions on the treatment of cash payments by a pension fund. If, at the time of a cash payment, the retirement benefit case has already occurred (with an entitlement to the regulatory retirement benefits), it is generally recognized that, in the event of divorce, the division into acquired property and personal property is to be made (in the case of acquired property and analogously in the case of community of property, but not in the case of separation of property).

However, it is debated whether this should also apply if the retirement benefit case has not yet occurred at the time of a cash payment and the capital paid out has not been used for the purchase of another pension plan. The Federal Supreme Court and part of the doctrine (Geiser et al.) deny this and allocate the entire amount to the personal assets. In contrast, according to Jungo/Grütter, the division into own property and acquired property is also to be carried out here, since only that part is intended for the pension and is consequently to be allocated to the own property which corresponds to the capital value of the future pension. This amount is to be taken into account when determining an appropriate compensation due to the impossibility of pension equalization according to Art. 124e CC. This argumentation is logical. We follow it and make the corresponding capitalization calculations if a cash payment within the meaning of Art. 5 FZG is reported and initially credited to the acquisition.

The capital amount (cash value) to be credited - ex nunc - to the own property of the pension-entitled spouse is only an arithmetical, not a real quantity. The remaining part of the original capital benefit remains in the inheritance. An addition according to ZGB 208 is possible, also a reclaim from third parties. The succession owes the corresponding capital share to the own property, even if this results in a setback.

Upon request, the pension fund must disclose the amount of the annuity settled with the lump-sum payment at the time of the lump-sum payment (conversion of lump-sum into annuity). The notified pension must be capitalized for the period after the dissolution of the matrimonial property regime (initiation of divorce proceedings), namely at the time of the dissolution of the matrimonial property regime. It is a life annuity limited to the AHV age, to the period of activity.

If, however, a user takes the other view and does not wish to divide a cash payment before the occurrence of an insured event into acquisition and personal property, he/she can proceed in the question process in such a way that the corresponding cash payment is shown from the outset only as a component of the personal property. In this case, there will be no division of the acquired property into acquired property and personal property or, in the case of community of property, into joint property and personal property.