Is the profession taken into account during divorce proceedings?
This is how pension equalization works in the event of a divorce
- What is the pension equalization?
- This is how the pension equalization works
- Which claims are taken into account in the compensation and which are not?
- When and where is the pension adjustment carried out?
- When can the pension adjustment be waived?
- What does the pension adjustment cost?
- What do the spouses have to do with the pension adjustment?
- Divorce before 2009? Spouses are entitled to subsequent changes!
- Improved maternal pension since 2014
- Pension equalization with a foreign element
1. What is the pension equalization?
In short, the pension equalization is an equalization of pension entitlements acquired in the marriage between the spouses. A pension entitlement is the right to be able to claim benefits at retirement age. The partner who is (temporarily) not working in the marriage should receive compensation from the spouse who continues to work for the period in which he does not pursue any work, e.g. because he looks after the children and thus only has low pension entitlements. The Working spouse's pension entitlements are therefore proportionate to the non-working spouse with the lower pension entitlements countedso that both leave the marriage with the same number or similar pension shares. The legislature hereby recognizes that the marriage of two people also represents a community of provision.
The beneficiary spouse thereby acquires an original claim against the pension insurance in order not to be dependent on the ex's willingness to pay later.
Even if both spouses are working during the marriage, in the event of a divorce there is a pension adjustment, in which the possibly differently high pension entitlements are compensated.
2. This is how the pension equalization works
Since the new regulation of the Pension Equalization Act (VersAusglG), the pension equalization has been carried out from 01.09.2009 according to the so-called Individual law-related compensation (also called "back and forth balancing").
This means that the compensation is carried out for each individual pension entitlement and that each existing entitlement is divided in half. Each spouse thus acquires half of each expectant right of their partner as their own entitlement from the respective pension provider. If the partner entitled to compensation already has their own entitlements there, the entitlements gained and those to be surrendered will be offset there.
The F is entitled to a civil servant pension of € 1,500.
Husband M receives € 750 from the civil servant pension. In total, it comes to € 2,025 (€ 750 + € 1,000 + € 150 + € 125).
Wife F receives € 1,000 from the statutory pension, € 150 from the company pension scheme and € 125 from the Riester pension. In total, it also comes to € 2,025 (€ 1,000 + € 150 + € 125 + € 750).
Without the compensation, husband M would get € 2,550 and wife F € 1,500.
The following graphic is intended to illustrate this example:
The internal division is the absolute rule. A summary of all pension entitlements and a one-off settlement of the difference no longer takes place.
The alternative to this internal division is the so-called "external division"According to §§ 14 ff. VersAusglG. For the person entitled to equalization, a corresponding entitlement is established with a different pension provider (of his choice) than the one with whom the entitlement of the partner liable to equalization originally existed. The background to this outsourcing is to relieve the providers of company pension schemes.
Example: If the husband who is obliged to compensate receives a company pension, the company would have to pay half of the amount as a result of a pension adjustment to the wife who is entitled to compensation. This payment is associated with both costs and increased administrative effort, so that in this case the employer has the option of transferring the amount to be settled to another pension provider.
The problem with the external division of pension entitlements, in particular from a direct commitment or a relief fund in accordance with Section 17 VersAusglG, is that the original pension provider determines the net present value of the entitlements in the course of the outsourcing. However, the original and external pension providers apply different interest rates when determining the net present value, so that immense transfer losses arise for the spouse entitled to equalization. In its decision of May 25, 2020, the Federal Constitutional Court decided that the regulation is fundamentally constitutional. However, the family courts have to pay attention to the burdens incurred by the person entitled to compensation and to ensure that the person entitled to compensation (usually the woman) receives an appropriate pension entitlement. Excessive losses (more than 10%) due to this transfer must be prevented. So that the maximum loss of 10% is not exceeded, it is the task of the courts to set a so-called compensation value for the company pension provider. The pension provider, in turn, has the option of choosing the internal division as an alternative in order to avoid disadvantages.
A deviation from the individual compensation can be considered if both spouses have acquired similar entitlements from the same pension provider or if corresponding agreements exist between different pension providers. If this is the case, the existing entitlements can be offset against each other by way of a one-off settlement.
3. Which claims are taken into account in the compensation and which are not?
In principle, all rights are included in the pension equalization, which were created by work performed during the marriage or by assets, which serve to provide for old age or incapacity for work and which are aimed at a type of pension benefit.
From the pension adjustment not recorded on the other hand, the claims with so-called lack of compensation maturity (§ 19 VersAusglG) become.
- Statutory pension insurance
- Civil servant supply
- Professional care (e.g. doctors, lawyers, architects, pharmacists)
- Company pension scheme
- Private retirement and disability benefits
- Disability pension
- Riester pension
- Rürüp pension
Claims not to be taken into account
- Rights that have not yet been sufficiently consolidated and can therefore expire (e.g. company pensions)
- Those where the compensation would be uneconomical for the entitled person
- Rights that exist with a foreign, intergovernmental or supranational pension provider
- Private life insurances based on the One-time payment a certain amount are directed. In the event of a divorce, however, they will be taken into account in the equalization of profits
- Endowment or term life insurance
- Occupational disability insurance
- Victim pension
- Pension from the employers' liability insurance association
- Pension from statutory accident insurance
- Pensions according to the federal compensation, burden equalization or federal pension law
- Rental income
- Securities accounts
4. When and where is the pension adjustment carried out?
In the event of a divorce, the pension equalization is generally made by the competent family court to which the divorce was filed ex officio - ie "automatically" - carried out.
According to the so-called “pensioner's privilege”, which used to apply, the pension equalization only came into effect at the start of retirement for the spouse entitled to equalization. Up to this point in time, the person liable for compensation received his pension in full. This regulation was abandoned under the new law that has been in force since 2009. Since then, the pension equalization has been carried out immediately after a legally binding decision and the respective pension entitlements are reduced directly by the equalization amounts. The transfer of entitlements then takes place automatically on the basis of the court order by the respective pension provider. Those involved recognize the effects of the equalization when retiring from the pension paid or from the pension providers' standardized pension calculations beforehand.
5. When can the pension adjustment be waived?
- Exclusion by marriage contract or agreement on the consequences of divorce: The pension adjustment can be made by notarial agreement through a previously concluded marriage contract or through an agreement on the consequences of divorce locked out become. In particular, it is also possible to partially exclude certain pensions. An exclusion can also be agreed during divorce proceedings.
- Exclusion in the divorce appointment: If the pension adjustment is to be excluded before the family court, both partners must be represented by a divorce lawyer. There is also the possibility that the court may raise objections (e.g. if a partner is severely disadvantaged) and ultimately there will be no exclusion.
- Unreasonable hardship: In addition, the pension adjustment can be waived if this would not represent an appropriate and special hardship. This can be the case, for example, if criminal offenses have been committed against the spouse or if the duration of the separation significantly outweighs the duration of the cohabitation. However, the requirements for a case of undue hardship must be set high. In particular, this must be assessed on the basis of the respective individual case after taking mutual interests into account.
- Short duration of marriage: If the marriage lasted only three years or less, the court does not carry out the pension adjustment automatically, but only on request.
- Insignificance: In the case of largely equivalent entitlements or only minor entitlements (so-called "minor entitlements"), the amount to be settled is minimal. A pension adjustment is then waived.
6. What does the pension adjustment cost?
The costs of the pension adjustment depend largely on the number of items to be taken into account, as the various pension providers charge fees for their administrative expenses.
In addition to the administrative fees, costs arise from the pension equalization in particular because it increases the overall procedural value of the divorce, which in turn has an impact on the amount of court and lawyer costs in the event of a divorce. The procedural value of the pension adjustment is 10% of three net monthly salaries per entitlement taken into account, but at least € 1,000 (Section 50 FamGKG). If, for example, a total of three entitlements are to be taken into account in the pension adjustment, the procedural value is 30% of three times the monthly net income of the spouses.
This value results from tripling the net income (= € 16,500) multiplied by 0.3 because of the 30% to be estimated based on three items.
To avoid high costs, an individual agreement between the spouses is advisable in many cases. Whether the implementation of the pension equalization or the conclusion of a marriage contract is more favorable in the respective case depends in particular on the specific existing entitlements and can best be assessed by an experienced specialist lawyer for family law.
7. What do the spouses have to do with the pension adjustment?
Once the divorce has been filed, the court will send one to each party Questionnaire on pension adjustment to.
The spouses have an obligation to provide information to the other (Section 4 VersAusglG) and also to the court (Section 220 FamFG). These obligations are particularly important in the event that an agreement on the consequences of divorce is still to be concluded, as a regulation or decision in the pension equalization cannot be made without the corresponding information. With an exclusion through an agreement on the consequences of divorce, the information to be obtained can be dispensed with.
If a spouse refuses to provide information, there is an alternative right to information in accordance with Section 220 (4) FamFG vis-à-vis the pension providers involved in the other spouse. Prior to this, however, information from the spouse must have been unsuccessfully requested. The court can urge the spouse to provide the information by imposing fines or detention.
8. Divorce before 2009? Spouses are entitled to subsequent changes!
Since the new regulation of the pension equalization in 2009, spouses whose divorce took place between 1977 and 2009 can have their pension equalization changed according to the new legal situation.
In individual cases, this can lead to a significant increase in pensions, because as part of the earlier pension adjustment, all pension entitlements in addition to the statutory pension insurance were converted into a fictitious value in the sense of the statutory pension (so-called "cash value regulation"). With this conversion, assets were “lost”. As a result, the spouse whose assets were to be equalized received fewer pension entitlements than they would be entitled to under current law.
Couples for whom the old pension adjustment included other items in addition to the statutory pension insurance should seek legal advice as to whether a recalculation makes sense.
Upon application to the responsible family court, the pension compensation will then be completely recalculated.
9. Improved maternal pension since 2014
The so-called mother's pension, which has been in effect since July 1, 2014, can also after-effects have on the pension adjustment. According to this, all mothers or fathers whose children were born before 1992 can count towards a total of two years of upbringing per child instead of just one year as was previously the case.
If the pension starts before July 1, 2014, the pension is subsequently increased by one earnings point for each child born before 1992. Therefore, many spouses who have already been divorced (mostly fathers) can now request a recalculation of the pension equalization if their ex-partner has increased pension entitlements as a result of the new maternal pension.
Therefore, before applying for a recalculation, it should be carefully considered whether this is worthwhile for you.
10. Pension equalization with a foreign element
10.1 Foreign pension entitlements
In the event of a divorce in Germany, the competent court is also responsible for implementing the pension adjustment. Foreign rights are generally taken into account according to the law, but can usually not be compensated because the German authorities are not allowed to have foreign insurance. The foreign pension provider cannot be obliged to integrate the spouse into its pension system (internal division) or to compensate for him (external division), so that the pension equalization fails in practice.
In such cases, the court will order that a corresponding normal civil law settlement be carried out instead. Any existing foreign entitlements are thus privately balanced between the spouses themselves.
The partner entitled to compensation then bears two risks:
- He is dependent on the actual payout of the partner liable for compensation. This means that there is a risk that they will not have their finances under control or become unreliable.
- After the death of the partner liable for the equalization, his pension entitlement no longer exists, so that the partner entitled to equalization no longer receives any payments.
10.2 Divorce Abroad
If the divorce is carried out abroad or has it already been carried out abroad, the foreign courts are also responsible for any pension adjustment. Under certain circumstances, an isolated pension equalization procedure can still take place retrospectively under German law. For this, no pension adjustment must have been carried out, the foreign divorce decree must be legally binding and recognized in Germany.
- The pension entitlements of the spouses should be compared with the pension equivalence and the partner with the lower entitlements should be credited proportionally.
- All rights created by work performed during the marriage or by assets, as well as entitlements such as Riester pension or annuity life insurance, are to be included.
- If the marriage has existed for at least three years, the pension adjustment is carried out automatically at the court. Otherwise an application is required.
- An exclusion of the pension adjustment by the spouse is possible by means of a marriage contract, divorce consequences agreement or possibly even at the divorce date.
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Franziska Hasselbach is a specialist lawyer for family law and has successfully accompanied numerous divorce proceedings. In addition, she advises in Cologne, Bonn and Frankfurt am Main on matters relating to maintenance, custody and contact law as well as marriage contracts and separation agreements.
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