maintenance + pension equalization
February 4, 2010 | 38,00 EUR | answered by Dr. Dr. Danjel-Philippe Newerla
Dear Mr. Lawyer,
I have been separated from my husband for a year now, and he has since filed for divorce.
Unfortunately, we were not able to peacefully resolve the matter, as my husband strictly refused to have any contact with me after leaving me.
I have attempted several times, through my lawyer, to contact him (or his lawyer), but unfortunately, these exchanges of letters have not been successful.
We have no assets, only debts in my name. I was the sole breadwinner during the marriage, while my husband was unsuccessful in his self-employment and had no income.
We got married in December 1999, and have no children. My husband did not manage the household, and I took over the accounting for his company.
In January 2009, my husband went on a trip and we have had no contact since then, except for a few emails where he informed me of the separation.
My husband is now living more or less with his new girlfriend (which he officially denies), and has also demanded alimony in the first letter, but has never pursued this claim.
He still has no income.
Now my questions:
1. Since we have not reached an agreement, will the court also decide on alimony, or does he have to apply for it?
2. Is there a way to avoid the pension equalization? (Hardship case?) My husband has not earned any pension rights during the years of the marriage, but as an only child, he is expecting an inheritance.
My lawyer simply cannot or will not give me clear answers to these questions. Thank you for your efforts.
Dear advice seeker,
Thank you for your inquiry!
Regarding question 1: Since we have not come to an agreement, the court will now decide on maintenance, or does he have to apply for this?
The court generally decides only upon request.
Regarding question 2: Is there a way to bypass the pension equalization?
Yes, there is a hardship clause. The pension equalization can be excluded if the implementation would be grossly unfair.
I have attached some very interesting links with further information on this topic:
http://www.streifler.de/versorgungsausgleich-3A-ausschluss-wegen-grober-unbilligkeit-_1773.html
http://www.jurathek.de/showdocument_print.php?session=O&ID=6130
Whether the conditions for such a hardship case exist, i.e. the pension equalization is grossly unfair, depends on the individual case. These are often cases where one spouse has financially supported everything alone and the other spouse has resisted contributing anything to the income. Based on your description, this does not seem to be the case, as your husband has tried but unfortunately has been unsuccessful.
Whether the conditions for a hardship regulation exist would need to be conclusively clarified through extensive consultation with a colleague on-site.
Alternatively, there is the possibility of excluding the pension equalization through a prenuptial agreement, for which your husband would also need to give his consent.
I hope that my explanations have been helpful. Please feel free to contact me through the follow-up option on this portal or via my email address.
I would like to finally point out the following: The legal advice I have provided is based solely on the information provided by you. My response is only an initial legal assessment of the situation and cannot replace a comprehensive evaluation of the facts. Adding or omitting relevant information can lead to a completely different legal assessment.
I wish you a pleasant Thursday afternoon!
Best regards,
Dipl.-Jur. Danjel-Philippe Newerla, Attorney
Heilsbergerstr. 16
27580 Bremerhaven
kanzlei.newerla@web.de
Tel. 0471/3088132
Fax.0471/57774
