Fragen und Antworten zum Versorgungsausgleich

Pension equalization

How does the pension equalization system work?

The pension equalisation scheme involves the equalisation of the pension rights acquired by the spouses during their marriage. The Family Court carries out the equalization of pension rights ex officio in the divorce proceedings, i.e. even without a corresponding application, if the marriage took place more than three years ago at the time the divorce application was filed. The purpose of the pension equalisation is to close pension gaps on the part of the spouse who has renounced gainful employment for the benefit of the other spouse or the children. Of course, the pension equalisation scheme also applies to same-sex marriages and civil partnerships.

What do I do with the questionnaire on pension rights adjustment?

Many of those affected are confronted with the question of pension rights equalisation for the first time when they receive the questionnaires on pension rights equalisation from the family court in divorce proceedings. Due to the automatic nature of the pension rights equalisation in divorce proceedings, it is important to inform yourself about it at an early stage and to take the pension rights equalisation into account when making a joint decision on the consequences of a divorce agreement. Certainly, it is also one of the lawyer's duties to provide information about the legal framework of pension rights equalisation before the divorce petition is filed, as part of the preparatory consultation.

The questionnaire is to be filled in completely and truthfully. The divorce proceedings only continue when both spouses have fulfilled their obligations to provide information and the pension rights equalisation has been prepared. Delayed cooperation may result in severe penalty payments by the court. However, in contrast to administrative fines, penalty payments will be reversed as soon as the cooperation has been made up for - but this should not be relied upon. In the interest of a speedy settlement of the proceedings, the spouses should fill in the questionnaire after consulting their own pension providers. The court then obtains information for the spouses from the designated pension providers. The questionnaire completed by the other spouse is sent to the spouse for checking, as is the information prepared by the pension funds, which must be carefully checked. If pensions or insurance periods have not been taken into account, it is up to the spouse entitled to compensation to inform the court of this. Agreements waiving pension rights equalisation in whole or in part should only be concluded once the information from all the institutions is complete, so that it is clear what is waived.

How does the pension equalization system work?

Beide Ehepartner sollen aus der Versorgungsgemeinschaft der Ehe mit den gleichen Anrechten auf Versorgung wegen Alters oder Invalidität hervorgehen.

This is implemented by the spouse entitled to equalisation acquiring his or her own original claim against the pension provider, the existence of which is no longer dependent on the willingness to pay and the life expectancy of the other spouse. This means that the duration of the entitlement to pension benefits no longer depends on how long the former spouse who is subject to the equalisation scheme draws benefits under this scheme. Exceptions are made in the case of the so-called pension rights equalisation under the law of obligations, which is applied in special cases, e.g. for occupational pensions that have not yet vested, and which establishes a claim against the former spouse that only begins when the spouse who is subject to equalisation starts drawing benefits. In this case, however, the entitlement to the assignment of the payment claim against the pension provider also exists.

The rules of the various pension schemes on the structure and level of pension rights differ considerably. In the pension insurance system, the entitlement is determined on the basis of remuneration points, whereas in the civil servant pension system, the entitlement is based on the last remuneration received.

In the past, it was common practice to convert all pensions for each spouse into a single reference value (the so-called cash value) and to combine them into a total pension , which was then compared with the total pension of the other spouse in the context of a comprehensive balance. The balancing then took place only once in one direction in favor of the spouse who had acquired lower total pension entitlements during the marriage. This system involved a great deal of calculation work and was very error-prone.

With the reform of pension rights equalisation and the introduction of the Pension Rights Equalisation Act on 1 September 2009, a change of system to so-called individual right-based equalisation took place with the aim of simplification. For each individual entitlement of each spouse, the proportion of the marriage period is determined and - this is the new thing - half of it is transferred to the other spouse, i.e. the spouse with the fewer entitlements also transfers half of these entitlements to the other spouse and receives from the latter in return half of the (relatively more valuable) entitlements from his or her pensions. The entitlements are therefore exchanged back and forth. In this way, the result is also a half-share of all rights acquired by the spouses during the marriage and the establishment of pension equity, thus avoiding the high expenditures of the aggregate offsetting.

As a rule, this is the so-called internal division, i.e. the spouse entitled to equalisation acquires a claim of his or her own against the pension provider, which the family court settles with the divorce decree. This is then linked to full membership of this pension scheme. An exception is the so-called external division, in which the family court obliges the pension provider of the spouse who is entitled to equalization to pay the capital value of the pension into a pension to be named by the spouse who is entitled to equalization.

An exception to the individual settlement is made where both spouses have acquired similar rights in the same pension scheme, or where the pension institutions have concluded agreements to this effect. In this case, the individual entitlements are offset (balanced) and a one-off settlement is made in the direction of the spouse with the smaller entitlements.

Which rights belong in the pension rights equalisation and with what proportion?
Entitlements are included with their marriage portion. The marriage period begins on the first day of the month in which the marriage was contracted and ends on the last day of the month before the divorce petition is served (§ 3 Absatz 1 Versorungsausgleichsgesetz).
 

Which rights are included in the pension rights adjustment is regulated by § 2 Versorgungsausgleichsgesetz:

1) Anrechte im Sinne dieses Gesetzes sind im In-
oder Ausland bestehende Anwartschaften auf Versorgungen und Ansprüche
auf laufende Versorgungen, insbesondere aus der gesetzlichen
Rentenversicherung, aus anderen Regelsicherungssystemen wie der
Beamtenversorgung oder der berufsständischen Versorgung, aus der
betrieblichen Altersversorgung oder aus der privaten Alters- und
Invaliditätsvorsorge.


(2) Ein Anrecht ist auszugleichen, sofern es

1. durch Arbeit oder Vermögen geschaffen oder aufrechterhalten worden ist,
2. der Absicherung im Alter oder bei Invalidität, insbesondere wegen verminderter Erwerbsfähigkeit, Berufsunfähigkeit oder Dienstunfähigkeit, dient und
3. auf eine Rente gerichtet ist; ein Anrecht im Sinne des Betriebsrentengesetzes oder des Altersvorsorgeverträge-Zertifizierungsgesetzes ist unabhängig von der Leistungsform auszugleichen.


(3) Eine Anwartschaft im Sinne dieses Gesetzes liegt auch vor, wenn am Ende
der Ehezeit eine für das Anrecht maßgebliche Wartezeit,
Mindestbeschäftigungszeit, Mindestversicherungszeit oder ähnliche
zeitliche Voraussetzung noch nicht erfüllt ist.


(4) Ein güterrechtlicher Ausgleich für Anrechte im Sinne dieses Gesetzes findet nicht statt.

The pension rights equalisation therefore includes rights in the

  • Gesetzlichen Rentenversicherung
  • Beamtenversorgung
  • Berufsständische Versorgungen von Freiberuflern (z.B. Ärzte, Anwälte, Architekten, Apotheker),
  • Betrieblichen Altersversorgung
  • Privaten Alters- und Invaliditätsversorgung (darunter fallen Riester- und Rürup-Rente)


On the other hand, not included in the pension rights equalisation are:

Private occupational disability insurance as well as victim's pensions already received for damages suffered, pensions from the employers' liability insurance association, from statutory accident insurance, pensions under the Federal Compensation, Equalization of Burdens or Federal Pensions Act for an Accident.

This does not include entitlements that have not yet been sufficiently consolidated and may therefore still lapse (e.g. company pensions dependent on length of service). However, the court's decision should, if necessary, reserve the right to make up the compensation for the portion already earned during the marriage, which can then take place by way of compensation under the law of obligations (see above).

Small entitlements for which the administrative burden resulting from the implementation of the compensation is not in a reasonable proportion to the compensation value itself will not be compensated.

Do lump-sum life insurance policies also belong to the pension rights equalisation scheme?

Capital-based life insurance policies that are designed for a single payment of a certain amount do not belong in the pension rights equalisation scheme, but must be taken into account in the gain equalisation scheme, i.e. in terms of asset law. A lump-sum option can also be exercised during the ongoing divorce proceedings. If inclusion in the equalisation of gains is then no longer possible, e.g. because one spouse has already bindingly waived this right on the other spouse, the spouse to whose disadvantage the other spouse has withdrawn the right to the pension rights equalisation by exercising the lump-sum option can, however, demand that an equivalent reduction of the pension rights equalisation takes place in return to the disadvantage of the "tricking" other spouse.

Does the spouse's foreign nationality affect the pension equalization?

If the divorce is based on German law, the family court will carry out the equalization of pension rights ex officio, i.e. even without a corresponding application. A further prerequisite is that one or both spouses has/have German nationality, or the nationality of another state whose legislation provides for pension rights equalisation; this is essentially only Switzerland. If both spouses have the nationality of other states, the pension rights equalisation is only carried out upon application.

 
 
What happens in pension rights equalisation with foreign pensions?

Entitlements acquired with foreign, interstate or supranational pension rights equalisation institutions are not directly included in the pension rights equalisation; the German family court judge can certainly not make any regulation that would have a direct effect on such entitlements. Such rights are only indirectly taken into account if the foreign pension scheme has an impact on the German pension scheme, e.g. in the pension insurance, as a result of the social security agreements concluded by Germany with many countries. 

It is also possible to take account of the non-inclusion of the foreign pension in the context of the equalisation of German entitlements in such a way that equalisation of the domestic entitlements of one spouse is wholly or partly omitted if the spouse entitled to equalisation has in turn acquired entitlements with a foreign, international or supranational pension institution (e.g. by working at the European Patent Office) which are not included.

 

 

Does the pension equalization take place if the marriage was divorced abroad?
With the exception of Switzerland, hardly any other country knows about pension rights equalisation, which means that the pension expectancies are not equalised in the divorce proceedings. However, after the divorce proceedings have been concluded abroad and, if necessary, recognised in Germany, it is possible to apply to the local family court in Germany for pension rights equalisation to be carried out in so-called isolated proceedings if one of the spouses has acquired domestic pension expectancies. If neither of the spouses is resident in Germany, the special jurisdiction of the Berlin-Schöneberg district court applies.
Such an application will only be meaningful if the former spouse submitting the application thereby acquires a valuable entitlement from the German pension system, which will not always be the case, e.g. if a minimum insurance period is not reached.

 

Die Ehefrau F hat als Beamtin während der Ehe einen Anspruch auf Beamtenversorgung in Höhe von 2.000 € erworben.

Ohne Versorgungsausgleich bleibt es bei F bei 2.000 €.

Ehemann  M hat während der Ehe bis zum Beginn gesetzliche Rentenansprüche in Höhe von 1.800 €, eine betriebliche Altersversorgung in Höhe von 600 € und ein Anspruch in Höhe von 300 € aus einer Riester-Rente zu.
­
Ohne Versorgungsausgleich kommt  M auf insgesamt 2.700 € (= 1.800 € + 600 € + 300 €).
­
M gibt im Versorgungsausgleich 900 € Rente, 300 € aus der Betrieblichen Versorgungszusage und 150 € aus der Riester- Rente an F ab und bekommt von ihr 1.000 € aus der Beamtenversorgung.

Insgesamt kommt jeder von ihnen dann auf 2.350 € (1.000 € + 900 € + 300 € + 150 €),

d.h. F hat durch den Versorgungsausgleich 350 € mehr und M 350 weniger als ohne.


What are the consequences for pension rights equalisation if one spouse already receives a pension but the other spouse does not (for a long time)?

In particular, where there is a significant age difference between the spouses, it can happen that one spouse receives a pension much earlier than the other; this is known as a phase-shifted marriage. The question of how to deal with this is particularly important if one of the spouses is already receiving current pension benefits from the entitlement at the time of the divorce. In addition, there was the so-called pension privilege, under which a current pension could be drawn without reduction as long as the other spouse had not yet reached retirement age. This regulation still exists in some federal states for their civil servants, but has otherwise been abolished - particularly in the area of statutory pension insurance - as part of the reform on 1 September 2009. The pension rights equalisation can now only be suspended as long as and to the extent that the spouse who is obliged to pay equalisation pays post-marital spousal support to the other spouse on the basis of a statutory obligation. For this purpose, a separate procedure regarding the suspension will take place at the Family Court following the actual pension rights equalisation.

How can I accelerate the pension rights adjustment?

Delays in the preparation of the pension rights settlement can considerably prolong the divorce proceedings. The Family Court obtains information from the pension providers about the entitlements acquired during the marriage.
Pension insurance companies regularly require additional information or proof from the parties involved - for example on vocational training, the procurement of which can be quite cumbersome and lengthy.
It is therefore advisable to apply to the pension insurance fund for account clarification during the separation phase even before filing the divorce petition in order to relieve the later divorce proceedings of this.
Gegebenenfalls kann der Versorgungsausgleich auch in einer notariellen Vereinbarung ausgeschlossen werden, die aber der richterlichen Überprüfung standhalten muss, um beachtlich zu sein. Ein wechselseitiger Verzicht kann auch noch im Scheidungsverfahren durch den Richter protokolliert werden.

What does the pension rights equalisation cost?

The fees of the divorce proceedings are based on the value of the subject matter, which is calculated as three times the monthly net income of both spouses. After the value of the subject matter has been determined, the court fees and attorney's fees are then determined on this basis using the fee tables of the Family Court Costs Act and the Attorney's Fees Act. The pension rights equalisation on the occasion of the divorce proceedings is again included in the value determination in such a way that each right to be equalised is taken into account with 10% of three times the two monthly net incomes. If, for example, two rights, i.e. a total of four rights, are to be equalised for each spouse, the value of the subject matter is 40% (= 10% * 4) of three times the monthly net incomes of both spouses. If the pension rights equalisation is carried out in isolation, the rate per entitlement increases from 10% to 20%. In the above-mentioned example, the value of the subject matter in the isolated procedure with four entitlements would thus be 80 % (= 20 % * 4) of three times the monthly net income of both parties. On the basis of the value of the subject matter thus determined, the court fees and attorney's fees are then calculated according to the fee tables of the Family Court Costs Act and the Attorney's Fees Act (Anlage 2 zum FamGKG; Anlage 2 zum RVG).