Cryptocurrencies have caused a real hype in recent years. Bitcoin is the most prominent and globally strongest cryptocurrency market and has brought some forward-looking investors very high profits. But what actually happens to my Bitcoin if I get divorced? Do I then have to give half of my winnings to my ex-spouse? To answer these questions, we must first deal with the process of profit sharing.
What does profit sharing mean?
First of all, it must be clarified what compensation for profit actually means. In the process of equalization of profits, the aim is to compensate for the profit made by both spouses during the marriage period at the end of the marriage.
In order to calculate a possible gain, the total assets of a spouse at the start time, i.e. the date of the marriage, and at the end time, i.e. the date the application for divorce is served on the other spouse, are compiled and added up in a register of assets. The difference between the assets calculated at both points in time is the gain.
Simplified example: Spouse A had 1,000 euros in the account on the date of marriage and otherwise had no assets. On the date the application for divorce was served on the other spouse, spouse A had 5,000 euros in the account and a car worth 6,000 euros, for a total of 11,000 euros. Spouse A.
Gain equalization now means to compare and balance the gain of both spouses. The difference between the gain of both spouses is divided in half and transferred to the spouse with the lower gain. In this way, the gain of both spouses is balanced out, both of them have a gain of the same amount at the end of the marriage after the gain adjustment has been carried out.
Simplified example: The gain of spouse B after calculating the difference between the start and end time is 5,000 euros. The gain of spouse A exceeds that of spouse B. The difference here is 5,000 euros. Half of the difference, i.e. 2,500 euros, is to be transferred from the spouse with the higher gain, i.e. from spouse A, to the spouse with the lower gain, i.e. spouse B. Spouse A has given away 2,500 euros of his gain of 10,000 euros and he still has a gain of 7,500 euros. In addition to his gain of 5,000 euros, spouse B received a transfer of 2,500 euros from spouse A and thus also a gain of 7,500 euros in the end.
Bitcoin are taken into account in the profit sharing
Basically: Bitcoin is added to assets just like bank balances, cars, real estate, securities, insurance, lottery prizes, luxury goods or company shares. If my assets increase in the course of the marriage, i.e. if I make a profit, this will be taken into account in the profit compensation.
With the explanation above, we now know that whatever I have at the time of marriage will be added to my initial wealth and therefore not counted as a gain. So if I have Bitcoin to the value of 50,000 euros on the day of the marriage and if it is still worth 50,000 euros on the day the application for divorce is sent, then at least I have not made any profit with regard to my Bitcoin.
However, it looks different when the Bitcoin increases in value. If my Bitcoin is worth 100,000 euros at the end of the period, I have made a profit of 50,000 euros through my Bitcoin alone, which is taken into account in the context of the profit equalization.
However, if I make losses through my investment in Bitcoin, i.e. if my Bitcoin are only worth 40,000 euros at the end of the period, then these 10,000 euros must be deducted from any gain that might otherwise have been made.
How do I secure my Bitcoin?
Contrary to the widespread view, according to which the assets of both spouses are always divided up with every divorce, the gain compensation actually only takes place if one of the two spouses requests this. An automatic implementation of the profit equalization with the divorce procedure, as is the case for example with the pension equalization, does not take place with the profit equalization. This means that you can keep any profits you may have made with Bitcoin despite divorce if neither you nor your spouse submit an application for the profit sharing.
So if you still get on well with your spouse despite the divorce and agree that no claims should be asserted against the other, you don’t have to worry about your Bitcoin.
In addition, you can protect yourself by signing a notarized marriage contract or a notarial agreement on the consequences of a divorce in which you and your spouse conclude a notarial agreement on the consequences of divorce, in which the implementation of the equalization of profits in the event of divorce is modified or completely excluded. Alternatively, the equalization of profits in the divorce proceedings can be modified or excluded by a settlement in court if both spouses are represented by a lawyer in the divorce proceedings. A modification can be, for example, that both spouses agree that Bitcoin should not be taken into account in the gain adjustment.
Can I hide my Bitcoin from the profit sharing?
Anyone who now comes up with the idea of simply hiding their Bitcoin from their spouse in the event of the profit equalization should discard it very quickly.
If one spouse asserts his legally established right to information regarding the property against the other spouse in the context of the profit equalization procedure, the claimed spouse must disclose his entire property. If he withholds parts of his assets, he will commit fraudulent proceedings. In doing so, he may make himself liable to prosecution.
Above
Lawyer Niklas Clamann has specialized in the implementation of divorce proceedings within family law.
from his office in Münster, he conducts divorce proceedings nationwide based on the “online divorce” principle.