How are pension adjustment payments taken into account?
Under the new divorce law from 1 September 2009, entitlements from all pension schemes are divided at the time of divorce. "Everyone gets half of everything." Each entitlement is primarily divided within the respective pension scheme (internal division) or, in exceptional cases, of equal value with another insurance provider for the beneficiary (external division). Payments are tax-free for both the person obliged to make the adjustment and the beneficiary (§ 3 No. 55a and No. 55b EStG).
There is also the pension adjustment under civil law: The person obliged to make the adjustment receives the income in full but is obliged to pass a portion of it to the beneficiary.
- The person obliged to make the adjustment can deduct the payments made under the pension adjustment as special expenses (according to § 10 para. 1a No. 4 EStG 2015) to the extent that the income on which the adjustment payments are based is taxable for them. If the underlying income is tax-free, a deduction as special expenses is not possible.
- The beneficiary must tax the received adjustment payments as "other income" (according to § 22 No. 1a EStG 2015), insofar as they can be deducted as special expenses by the person obliged to make the adjustment. The strict correspondence principle applies here. However, it does not matter whether they actually had a tax effect for the person obliged to make the adjustment. When calculating the income, an allowance for income-related expenses of 102 EUR is to be deducted.
It is often stipulated in a marriage contract or a notarial agreement that in the event of divorce, the pension adjustment should be excluded and instead the wife receives a compensation payment, e.g. a sum of money, a severance payment, a life insurance policy, etc. Such compensation payments are often only agreed upon during the divorce proceedings to settle pension claims.
Under the previous legal situation, private payments to exclude the pension adjustment could not be deducted as special expenses by the spouse obliged to make the adjustment. In return, the spouse entitled to the adjustment did not have to tax the payment received as "other income".
Since 2015, payments to avoid the pension adjustment - similar to the pension adjustment under civil law - can also be deducted as special expenses by the person obliged to make the payment, while the beneficiary must tax the income as other income (§ 10 para. 1a No. 3 and § 22 No. 1a EStG 2015).
