Asset Division in Divorce

What is included in the assets to be divided?

The assets to be divided generally include all assets and debts that fall under the community of property. Think of:

• the matrimonial home and mortgage
• bank and savings accounts
• investments or valuable assets
• debts and personal loans
• pension rights (treated separately under /family-law/divorce/pension/)

This may be different in the case of prenuptial agreements or a registered partnership with exclusion clauses. Depending on the agreements and circumstances, the court assesses whether certain asset components must be settled. This is general information, not individual legal advice.

The home during divorce: owner-occupied, rental, or sale

For many couples, the home is the most important part of the division.
There are three main options:

1. One partner remains in the home
   • The other is bought out or released from joint and several liability.
   • A current appraisal is necessary to determine the home equity.
2. The home is sold
   • The sale proceeds are used to pay off the mortgage.
   • Any home equity is shared according to the rules of division.
3. The home is retained temporarily
   • Sometimes the sale is postponed, for example, pending financing or when there are children involved.
   • Clear agreements regarding costs and risks are then important.

Rental properties also require attention. In many cases, the court can determine who retains the tenancy rights, depending on income, childcare, and personal circumstances.

Read more at:

• Owner-occupied home during divorce
• Home equity and buyouts
• Ex-partner refuses to cooperate with the sale of the home
• New home after divorce

Home equity, buyout, and mortgage

The home equity arises when the sale value of the home is higher than the remaining mortgage debt.
In a buyout, the departing partner is paid their share of the equity by the other. Three factors play a role in this:

1. The current market value (often established via appraisal).
2. The remaining mortgage and any additional debts.
3. The financial capacity of the person who wishes to stay.

A new mortgage or refinancing may be necessary. Banks then often request the divorce settlement agreement and a recent appraisal. In many cases, the bank – not the court – assesses whether it is financially feasible to remain in the home.

Step-by-step plan for the division of assets

1. Inventory

Jointly map out all assets, debts, and properties.

2. Reference date

Determine the date on which the assets are assessed. This is often the day the petition for divorce was filed.

3. Valuation

Have the home appraised and determine the current values of other asset components.

4. Agreements

Discuss whether one of you will take over the home or if a sale is preferred. Make decisions regarding division, settlement, and any rights to reimbursement.

5. Documentation

Record the agreements made in a divorce settlement agreement or in a deed of division at the notary.

6. Execution

Execute the agreements: transfer of the home, adjustment of the mortgage, and financial settlement.

After the division of assets, agreements regarding alimony or other financial obligations often remain.
You can find more information on our page about alimony during divorce.

Pitfalls and evidence

Many misunderstandings arise due to unclear reference dates or missing evidence.
Please note:

• an old appraisal can lead to an incorrect valuation;
• not all debts have been shared;
• in the case of inheritances or gifts, an exclusion clause is decisive;
• agreements regarding alimony have been forgotten.
  You can find more information on our page about alimony during divorce;
• Does one of you own assets or real estate abroad? If so, international family law may apply.
  Read more about international family law and the division of assets.

Therefore, ensure that you carefully collect all documents: appraisals, mortgage statements, bank accounts, and proof of inheritances or gifts.

International aspects of the division of assets

In some situations, assets or real estate abroad are involved, such as a second home, foreign account, or investment. In that case, international family law may be decisive for the division.
In many cases, the court assesses which law applies based on place of residence, nationality, or the location of the assets.

Would you like to know which rules apply when (one of) you lives or works abroad?
Read more about international family law and the division of assets.

Practical examples

1. Buyout after value increase
A client wanted to remain in the home after house prices had risen. With a current appraisal and refinancing, the other partner could be correctly bought out.

2. Right to reimbursement for a gift
In another case, a gift from parents was involved. Because an exclusion clause applied, the amount fell outside the division.

3. International divorce
In an expat family, Dutch law applied to the home, while the other assets were invested abroad. The court applied the rules of division according to Brussels II-ter.