When
is divorced, the severance pay and pension are also subject to property division, so is of course also subject to public employee pension.
1. Public employee superannuation is also subject to property division. |
Civil Code allows one party who is divorced to claim property from the other party. The question was whether superannuation pensions that were not yet in hand, or pensions that were shared monthly, could also be seen as “wealth formed by a couple together.”
The Supreme Court ofaffirmed this with a consensus ruling.In addition to the nature of social security benefits, retirement benefits under the Employee Retirement Benefit Guarantee Act, Public Employee Pension Act, Military Employee Pension Act, and Private School Employee Pension Act include the postpaid nature of wages and meritorious compensation for diligent work together and , which requires a certain period of work, so if the cooperation of the other spouse has contributed to the work, the retirement benefits are also property of the cooperation of both couples.
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Supreme Court 2014. 7. 16. Sentence 2013 M2250 Power Consensus Decision TheRetirement Benefit, in addition to its nature as a social security benefit, has the postpaid nature of a wage and the meritorious nature of for sincere work (see Supreme Court 95 nu 7529, 94 da 36186, etc.), and if it is recognized that the cooperation of the other spouse in the work is contributed, the retirement benefit may also be subject to property division as property achieved through the cooperation of both couples. |
Public Employee Retirement Pension is a monthly pension paid from the commencement age of the pension until death of a retired official who has been in office for more than 10 years. Since it is not a lump sum payment, the split method and amount calculation will depend on whether you were still employed at the time of your divorce or if you are already receiving a pension.
2.if still in office at the time of divorce |
Principles – Expected Retirement Benefit Assuming Retirement at Termination of Pleading
Even if thespouse was in office at the time of the divorce and did not receive actual severance benefits, at the conclusion of the factual argument in the divorce proceedings, severance benefits that already exist in the and can be realistically valued may be included in the property division.Specifically, is subject to equivalent to the amount of retirement benefits expected to be received if you retire at that time (Supreme Court's 2013 M2250 Power Consensus Decision). In practice, we check the expected retirement benefits by checking the facts about the Civil Service Pension Service.
Since the introduction of the 2016 installment pension, the choice of the – Court has arisen
Jan 1, 2016Since the introduction of the partial pension system in the Civil Service Pension Act, the expected retirement benefits of current public employees do not have to be included in the property division. The Supreme Court found that the court combined the course and duration of marital life, contributions to the formation of retirement benefits, the size of other property, and the parties' intentions and ages. ① Expected retirement benefits may be included in the property division, and ② split pension under the Public Employees' Pension Act without inclusion · You can also leave it to them to split the lump sum I determined that.
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Supreme Court Judgment 2017M11917, September 25, 2019 The court may determine the amount and method of property division by including the expected retirement benefit (retirement pension, pension lump-sum pension, etc.) bond as a property division target. You can also have the divorcees follow the rules on the right to claim a partial annuity, etc. as set forth in the Civil Service Pension Act, without being included in the property division. . However, since the division claim rules of the divorcee's spouse do not apply to retirement allowance, bonds with a substantial amount of expected retirement allowance may be sufficiently subject to property division. |
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Easy-to-Miss Part – Retirement Allowance public employee retirement benefits are divided into 'superannuation (or lump sum)' and 'retirement allowances' . severance benefits are not shared unless claimed separately in the property division process, as the installment pension plan only applies to superannuation. In the above judgment, the original judge excluded from the division of property until the severance pay and then destroyed it. |
3. If you are already receiving your retirement pension at the time of divorce |
Even if your spouse is already receiving the civil service superannuation at the conclusion of the fact-finding argument, Since the pension inseparably mixes the social security nature with the postpaid nature of wages, the other party's cooperation with the work during the marriage is recognized. At least part of the marriage is a piece of property that the couple formed together.Therefore, unless the purpose of the property division system is to be unacceptable, pension entitlements that have already occurred are also subject to property division like real estate. .
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Supreme Court 2014. 7. 16. Sentence 2012 M2888 Power Consensus Decision It is also possible to divide property by periodically paying the other spouse a certain percentage of the amount of the retirement pension to be received each month by the spouse who is the pensioner. |
, which is a one-time settlement method, "Pay a percentage of your monthly superannuation" can also be divided into regular payments, such as .
4. Split ratio – Only annuities can be set separately |
property division ratio is not a contribution to the individual property, but rather a percentage of the total property, taking into account the contribution and all other circumstances. Therefore, it is not permissible in principle for the court to set different division ratios by property without a reasonable basis (Supreme Court Sep. 4, 2002. Sentencing 2001M718 Judgment, etc.).
However, The situation is different when the retirement pension is divided into regular pensions. . Unlike general property, where the amount is finalized, The total amount of the annuity cannot be specified because the beneficiary's dawn is unknown. Bundling these properties into a single ratio can be counterproductive to equity. The Supreme Court, in this case, Separate retirement pension and general property to determine the dividend ratio This is valid, and this is considered to be the case if there is a reasonable basis to determine the ratio differently (Supreme Court 2012 M2888 Power Consensus Decision).
For example, the general property is divided into 70:30 and the superannuation is divided into 85:15. At this time, the split ratio of the annuity will be determined taking into account the following circumstances: At this time, the proportion of the public employee's retirement pension shall be determined taking into account the proportion of the actual marriage period during the entire tenure period, the occupation and work contents of the parties, and the extent to which the other spouse actually cooperated or contributed, such as the distribution of household and childcare burdens, and other circumstances.
5. Right to receive directly from – Corporation under the Civil Service Pension Act |
Separately, the Civil Service Pension Act provides for a split pension scheme in which divorcee spouses with certain requirements share their pension directly from the Civil Service Pension Service.
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Civil Service Pension Act Article 45 (Partial Pension Beneficiaries, etc.) Section 1 If , a person who has more than five years of marriage (except for the period during which there was no substantial marital relationship due to separation, running away, etc., as the period of marriage during which his/her spouse served as a public official), meets all of the following requirements, he/she may receive a certain amount of pension that divides the pension or early retirement pension of the person who was his/her spouse from that time onwards. |
| requirements | Content |
|---|---|
| Married for more than 5 years | The actual duration of the marriage must be at least 5 years , not just the duration of the marriage, but overlap with the tenure of the official service of the spouse. Separated · Runaway period excluded. |
| Divorced | Divorced from Spouse |
| Opponent's entitlement | The spouse was a pensioner or early retirement beneficiary |
| Your age | 65 years old at the time of the article. However, it is applied step by step by year according to the provisions of the addendum, and even if the former spouse is already receiving the pension, I need to reach my age 지급됩니다. |
| Covered Divorces | 2016. 1. 1. Applicable from the person who divorced afterwards. |
| Due date | Claim within 3 years from the time all requirements are met (Article 45 (3)) |
Calculate split annuity
The divided pension amount is the amount of the retirement pension of the person who was the spouse. Equally divided by the pension amount corresponding to the marriage period (Article 45 Paragraph 2).
Divorce prior to 2016 should not be a post settlement
If you were already divorced before January 1, 2016 , and after that, property division related to retirement pension Even if you made a settlement or went to court, Cannot be a pension plan beneficiary.
The Supreme Court is only a special rule to calculate the division ratio in a property division agreement or trial. It cannot be an independent supply and demand requirement (Supreme Court Decision 2018 Doo 32200).For the same reason, even if the pension split ratio is set in the divorce proceedings, you cannot receive a split pension from the Corporation until you meet the age requirement.
6. 'Pre-charge' within 3 years of divorce |
If you have not yet reached the receiving age at the time of your divorce, you may miss the time of the claim because it is difficult to know whether the other party is retired or when the annuity will be received while waiting for the requirements to be met. .To prevent this, the installment pension advance scheme.
| item | Contents of(Article 48 of the Civil Service Pension Act) |
|---|---|
| Target | if divorced before reachingreceiving age |
| Due | within 3 years from the date of divorce |
| Effects | If you make a pre-claim and do not cancel, you are deemed to have made a claim under Article 45 (3). |
| When you'll get paid | Even if a pre-claim is made, the requirement of Article 45 (1) When you have it all Paid from on |
| Cancel | Cancellations available before receiving age reaches. Advance charge · One cancellation only |
The right does not itself disappear if the claim is not made in advance, but , in which case the claim must be made directly within 3 years from the time the requirement is fulfilled (Article 45 (3)), and no claim can be made after this period. It is useful to have a 'installment pension · lump sum payment advance' immediately after divorce.
8. Practical Checkpoints |
| time point | Checklist |
|---|---|
| Initial litigation | Public Service Pension Service fact-finding expected retirement benefits (lump sum) and expected retirement allowance confirmed, respectively |
| Property Division Configuration |
Determine whether the superannuation is put into property division in case of divorce or entrusted to the installment pension under the Civil Service Pension Act. severance pay must be included for property division |
| adjustment · ruling wording | If theannuity split ratio is set, the purpose of "dividing a percentage of public employee superannuation" is to expressly state . |
| Shortly after divorce | Split Pension to the Corporation within 3 years from the effective date of divorce |
| After Receiving Age Reached | Claim within 3 years from the completion ofrequirements (if not prepaid) |
9. The severance pay is the same as the company's severance pay, so it must be included in the property division in case of divorce. |
Important Reasons for Divorce Property Division
The split pension system only applies to superannuation and does not apply to retirement benefits . So the Supreme Court 2017 M 11917 The ruling held that the expected retirement allowance could be sufficiently included in the property division. . So let's wrap , There is a way to receive the retirement pension later as a partial pension from the corporation. , There is no way to divide your retirement allowance unless you file for it in a divorce lawsuit. . During litigation, it is practical to check the expected retirement allowance separately by checking the facts of the Civil Service Pension Service. .
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