Pension adjustment

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The supply balance is by German Family Law of in divorce takes place balancing the during the marriage time by the spouses acquired entitlements and prospects of supply because of age or reduced earning capacity . It is carried out by the family court as part of the divorce process. Marriage time is the time from the beginning of the month in which the marriage was concluded to the end of the month before the application for divorce was served. The pension equalization was introduced on July 1, 1977 by the first law on the reform of marriage and family law , which the Bundestag had passed in the summer of 1976.

In particular, entitlements at the following institutions are to be included in the pension adjustment:

The Pension Equalization Act (VersAusglG), the essential regulations (basic features) of which are briefly presented below, is contained as Art. 1 in the law on the structural reform of the pension equalization.

Temporal scope of the Pension Equalization Act

The new pension equalization law covers divorce proceedings in which the application for divorce has been received by the family court (FamG) since September 1, 2009. If the application for divorce was received by August 31, 2009, the old law will continue to apply. However, there are some exceptions to this principle. Was the pension equalization procedure z. For example, if the proceedings were still separated or suspended on September 1, 2009, or if the suspension of the proceedings was ordered by a court, the new pension equalization law applies ( Section 48 VersAusglG). In proceedings in which no court decision has yet been issued on August 31, 2010 at first instance, the new pension equalization law (substantive law and procedural law) must be applied from September 1, 2010 (see Section 48 (3) VersAusglG).

Regulatory content of the Pension Equalization Act

Principle of the internal division of pension rights acquired during the marriage

The new pension equalization regulates the internal division of pension entitlements acquired during the marriage between the spouses or life partners after the divorce. For rights or pension rights after Betriebsrentengesetz (BetrAVG) or pension contracts certification law will now also acquired (other than under the old law) capital services (see § 2 para. 2 Zf. 3 VersAusglG). In principle, half of the pension rights acquired during the marriage period apply. This means that half of each vested pension entitlement acquired during the marriage period has to be offset from each spouse (so-called "back and forth compensation") internally in the relevant pension system.

The person liable for compensation (person liable for compensation) is the person who has acquired a right to compensation during the marriage period. The person entitled to compensation (entitled to compensation) is entitled to half of the value of the respective marital time share (so-called "compensation value").

Rights covered by the division

The new law covers existing entitlements to pensions and entitlements to ongoing pensions at home and abroad (e.g. from statutory pension insurance, from other regular insurance systems such as statutory occupational benefits, civil servant benefits and company and private pensions) - (see § 2 VersAusglG).

In contrast to the old law, the so-called “pensioner privilege” no longer exists. This means that at least in the company pension scheme, the internal division leads to a permanent pension reduction for the pensioner who is obliged to compensate (e.g. the spouse who is already receiving a company pension receives the pension after the divorce permanently reduced by the compensation value). This also applies when drawing a disability pension from the company pension scheme. Dies z. If, for example, the person entitled to compensation has become final after the division of the company pension rights has become final, the pension benefit for the person subject to compensation remains reduced within the framework of the company (and also private) pension scheme. In order to avoid these hardship cases, agreements on pension compensation are particularly helpful.

According to § 32 VersAusglG only in the context of u. a. the statutory pension insurance, civil servant pensions, occupational pensions, old-age pensions for farmers and the pension systems of members of parliament, an adjustment has been made after the decision on pension equalization has become final (e.g. due to death of the person entitled to equalization, etc.). Please make sure that you submit a corresponding application .

Only the right that is ready for compensation is still subject to division. The VersAusglG defines in Section 19 what is meant by maturity . Thereafter, a right is u. a. In any case, it is ready to be compensated if it has already been sufficiently consolidated in terms of the reason or the amount, in particular a vested right under the Company Pension Act ( BetrAVG ). The non-forfeitability of a right is based on B. in the company pension scheme according to § 1b i. V. m. Section 30f BetrAVG (operational entitlements that can still be forfeited will be moved to the pension equalization under the law of obligations). The last judicial decision in the pension adjustment is decisive for the examination of the eligibility for compensation.

A right that is subject to compensation also exists if z. For example, a waiting period relevant to the entitlement (e.g. defined in the pension scheme: a disability pension can only be called if the pension commitment has been in place for 5 years) has not yet been fulfilled or a minimum period of employment has not yet been met (see Section 2 (3) VersAusglG).

If a pension entitlement does not originate from the standard security systems described above, it is only to be compensated if it has been created or maintained through work or assets and serves to provide protection in old age and in the event of disability and is aimed at a pension (exception: company and private pension; here is also to offset capital).

Determination of the compensation values

The pension provider concerned calculates the marital portion of the entitlement according to the reference value applicable in the respective pension system (e.g. earnings points in the statutory pension insurance or pension amount as an amount in euros or capital value in the case of a direct commitment, etc.). The pension provider evaluates entitlement at the end of the marriage period (on the last day of the month before the application for divorce is served). If changes of a legal (e.g. change in the pension scheme) or actual type (e.g. career jump with retroactive effects on the pension level) affect the part of the marriage period after the end of the marriage period, they must be taken into account if they were up to the last judicial decision occurred in the pension adjustment. The pension provider then submits the compensation value determined in accordance with the statutory regulations ( § 39 ff. VersAusglG) as a proposal for a compensation value to the family court (e.g. as a monthly pension value plus the corresponding capital value or only as capital value). However, this is not tied to the proposed compensation value.

The VersAusglG refers to Sections 39 to 47 VersAusglG with regard to the details of the valuation of the right . According to this, the following applies in principle: If an entitlement is in the qualifying phase and its value is based on a reference value (e.g. euro amount or earnings points) that can be directly assigned to specific periods of time (e.g. in the marriage year 2008 in the statutory pension insurance 1.5 earnings points earned), the marital time share is determined based on the direct assessment. The law provides for immediate assessment of earnings points, reserve capital, pension modules, contributions paid or the length of membership in the pension system (e.g. pension commitment provides that the retirement pension is increased by 10 euros per month for each year of employment).

If an immediate evaluation of an entitlement that is in the qualifying phase cannot take place, then the statutory evaluation is subordinate. For this purpose, the VersAusglG specifies the exact determination in Section 40 (2).

The assessment of an ongoing pension (pension benefit) is based on the principles set out for the qualifying phase (see Section 41 VersAusglG).

Implementation of the internal division by the family court

According to Section 220 (4) FamFG , the pension provider is obliged to notify the family court of the values ​​required to determine the marital time share and compensation value, including a clear and comprehensible calculation. The relevant legal bases for the internal division (e.g. insurance conditions, articles of association, guidelines, etc.) must also be submitted to the court.

The court may, ex officio or at the request of another involved party (e.g. spouse), request the pension provider, who is himself involved, to explain the details of the valuation to the court. The pension provider has to comply with court requests and orders ( Section 220 (5) FamFG).

If the equalization value is undisputed, the family court transfers the equalization value to the pension provider by way of internal division for the person entitled to equalization (e.g. spouse A) at the expense of the entitlement of the person subject to equalization (e.g. spouse B) the right of the person liable for compensation exists. For the person entitled to equalization, a new right is created in the pension system; for the person subject to the equalization, the right is continued in the pension system in a correspondingly reduced form. This division process in the supply system is called internal division. If the person obliged and entitled to equalization have rights to equalization with the same pension provider, only the amount of the difference in value will be offset.

The result of the internal division must ensure an equal participation of the spouses or life partners in the rights acquired during the marriage period. This is provided by law if an independent and appropriately secured right (e.g. insolvency protection according to BetrAVG) is transferred to the person entitled to compensation. The entitlement must also follow a comparable performance and the same risk protection (e.g. old-age and disability protection after the pension commitment) must exist. The pension provider can, however, limit the new entitlement of the person entitled to compensation to retirement benefits, but must grant compensation in terms of value in the event that the disability and / or survivors' insurance is no longer available.

As part of the internal division, the pension provider can claim appropriate division costs (for the establishment of the new entitlement in the pension system and additional administrative costs for the further management of the entitlement) and offset half of the entitlements of both spouses. What is appropriate in this sense will be shown by the case law (the legislator assumes 2 to 3% of the actuarial reserve in the explanatory memorandum; rough guide values ​​from practice: € 200–300 as a rule per shared right). In any case, the family court examines the appropriateness of the costs. Due to the lack of decisions on the new law, there is currently a great deal of legal uncertainty as to what will be assessed as appropriate by the family courts.

Exclusion of the pension equalization in the case of short marriage and insignificance

According to Section 3, Paragraph 3 of the VersAusglG, a pension adjustment will only take place if a spouse applies for a marriage period of up to 3 years.

According to § 18 VersAusglG, the family court should not compensate mutual rights of the same kind if the difference between the compensation values ​​is small. The family court should also not compensate for individual rights with a low compensation value. Since both cases are debit regulations, the family court can proceed differently.

Pension equalization agreements

The legislature gives the spouses a wide scope for the conclusion of pension equalization agreements ( § 6 ff. VersAusglG). This agreement can be concluded by the spouse or registered partner in advance of the divorce proceedings. The family court is generally bound by the agreement, but is empowered to subject the agreement to a content and exercise control (including a review of the adequacy of the agreement).

Through the agreement, entitlements can only be transferred or justified if the relevant pension regulations allow this and the pension providers involved agree ( Section 8 (2) VersAusglG).

In the agreement, the spouses can also exclude the pension equalization or z. B. the compensation claims are reserved for the contractual pension compensation. As a protective regulation, § 7 VersAusgG prescribes notarial certification if an agreement is concluded before the decision on pension equalization becomes final.

The conclusion of an agreement can in principle be recommended if the implementation of a division of the pension rights would lead to considerable disadvantages. However, if a spouse is unreasonably disadvantaged by the agreement, it is ineffective.

Information claims of the parties involved

In order to be able to assess whether and how agreements could be concluded, information must be obtained from the pension providers. The provision of information between the spouses or life partners or the pension providers can u. U. only the existence of pension rights acquired and to be shared during the marriage period and their amount are recognized. However, this knowledge is a prerequisite for the eventual conclusion of an appropriate agreement on pension adjustment.

Section 4 VersAusglG regulates this right to information. According to this, the spouses, surviving dependents and heirs are obliged to give each other the information necessary for the pension adjustment. If they cannot receive information from each other - which is to be feared due to the complexity of the matter - these persons have a subordinate right to information from the pension provider involved. The unsuccessful attempt to provide information to the other parties involved must be proven to the pension provider (e.g. by submitting a reminder). The pension provider then has to provide the information required for the pension adjustment for its pension system. As part of the provision of information, the pension provider must, for reasons of data protection law, clearly define the necessity of the information.

In addition, the right to information under family law in the context of divorce proceedings must be observed ( Section 220 FamFG).

External sharing of rights

External sharing (i.e. the establishment of an entitlement with another pension provider) is possible in two legally defined cases. According to this, an external division must always be carried out

  • if the person entitled to compensation and the pension provider of the person subject to compensation agree on an external division
  • or the pension fund of the person liable for compensation unilaterally demands an external split (this is only possible for compensation values ​​up to 2% of the reference value as monthly pension value or 240 times this as capital value; for 2014: € 6,636 capital value or € 55.30 monthly pension value). For the relief fund and the direct commitment, however, significantly higher values ​​apply (capital value up to the contribution assessment limit in the statutory pension insurance; for 2014: € 71,400).

The person entitled to compensation must specify the desired target supply for the external split. The person entitled to equalization determines the target pension provider to whom the equalization value z. B. should be transferred to increase an existing entitlement. If the person entitled to equalization does not specify a target pension, the external division takes place through the establishment of an entitlement in the statutory pension insurance or according to the implementation method in the pension equalization fund .

According to the law on the pension equalization fund (VersAusglKassG), the task of the pension equalization fund is to provide for the person entitled to equalization in the event of the external sharing of an entitlement within the meaning of the Company Pension Act if the person entitled to equalization does not exercise the right to choose the target pension. The pension equalization fund is a pension fund within the meaning of Section 232 of the Insurance Supervision Act in the legal form of a mutual insurance association. The law regulates u. a. the assets, the scope of services, etc. The pension equalization fund belongs to a security fund. An entitlement that exists with the health fund is not transferable, lendable or alienable. It may not be used prematurely either ( Section 5 VersAusglKassG).

If the person entitled to compensation chooses a target supply, it must be an appropriate supply ( Section 15 VersAusglG). A right in the statutory pension insurance, with a pension fund, a pension fund or a direct insurance or from a contract that is certified according to § 5 of the Pension Contract Certification Act always meets the requirements. However, other types of supply can also be considered appropriate. These must then meet the following criteria:

  • a lifelong pension
  • not transferable
  • not loanable
  • not for sale
  • not usable before the age of 60
  • Bankruptcy protection
  • tax-neutral for the spouse who is obliged to compensate

In addition to the statutory pension funds and the pension equalization fund (for entitlements within the meaning of the Company Pension Act), there are so far only a few alternatives for those entitled to equalization due to the above criteria, for example BVV or pension equalization fund.

In the case of external sharing, the pension provider is not permitted to deduct costs.

With a ruling dated March 24, 2010, the Federal Financial Supervisory Authority (Bafin) granted the pension compensation fund its first permit to operate.

Judicial process

In addition to the spouses or registered partners, those involved in the pension equalization procedure are the pension providers with whom there is an entitlement to be compensated, and those pension providers for whom a entitlement is to be established, as well as the surviving dependents and heirs of the spouses ( Section 219 FamFG).

The family court procedure imposes obligations to cooperate and provide information on these parties, which can also be enforced by force (e.g. through administrative fines). In family court proceedings, the principle of official investigation applies, i. H. the determination of the facts is also carried out ex officio by the court.

The family court decides on the pension adjustment matter by decision. The decision becomes legally binding - is therefore also enforceable - if a complaint is not lodged within one month of the written notification of the decision by a party (e.g. spouse) ( Section 59 FamFG).

This legally binding resolution (e.g. for internal division) is to be implemented in the respective pension system precisely described in the resolution formula. At z. B. the internal division would have to reduce the entitlement of the person liable for equalization and the establishment of a corresponding new entitlement for the person entitled to equalization in the pension system in accordance with the resolution formula.

Some pension funds have already dividing orders created in which the way the internal division and the cost deduction is governed by the pension provider. These division rules can be the subject of the resolution.

criticism

The professional representatives of soldiers and civil servants with a special age limit have criticized the handling of the pension equalization. A disadvantage compared to other pensioners is criticized, on the grounds that the use of the time-ruled calculation method to determine the pension equalization leads to much worse results for those affected due to the short periods of service and to a significantly larger reduction volume due to the earlier retirement. The Defense Commissioner of the German Bundestag also includes these assessments in his 2012 and 2013 annual reports and calls for remedial action on the part of the Federal Government.

In the statutory pension insurance, in divorce proceedings, the former wife because she z. B. worked as a housewife, earnings points were credited to the pension account. If she dies before retirement or if she herself has received a maximum of 36 months pension from the transferred rights, the pension will not be reduced. The former spouse who is obliged to compensate can request the return of the earnings points. This is only noted in the pension account by the Deutsche Rentenversicherung Rheinland with the information that there may be legal changes before the start of retirement. A return transfer of the earnings points can only be expected in the later pension proceedings.

See also

Wiktionary: pension adjustment  - explanations of meanings, word origins, synonyms, translations

literature

  • Palandt -Brüdermüller: Civil Code. Commentary on the BGB with subsidiary laws , here: Commentary on the VersAusglG, 70th edition, Munich 2011, ISBN 978-3-406-61000-4 .
  • Fritz Ruland: Pension Adjustment , 3rd edition, Munich 2011, Verlag CH Beck, ISBN 978-3-406-61169-8 .

Web links

General
Differences between old and new law

Individual evidence

  1. ↑ Text and changes by the law on the structural reform of the pension equalization
  2. ↑ Pension equalization . Retrieved October 8, 2019 .
  3. ↑ Die Bundeswehr: Die Bundeswehr, Journal des Deutschen Bundeswehrverbandes eV, issue 10/2012, p.36
  4. ↑ Effects of the pension equalization regulations on soldiers who are subject to a special age limit (PDF); accessed on August 15, 2014
  5. ↑ Report of the Defense Commissioner of the German Bundestag 2012 (PDF), page 46; Retrieved June 25, 2014
  6. ↑ Report of the Defense Commissioner of the German Bundestag 2013 (PDF), page 56; Retrieved June 25, 2014
  7. ^ Deutsche Rentenversicherung Rheinland accessed on March 13, 2019