Ningbo divorce has received occupational annuity enterprise annuity how to divide

Occupational annuity and enterprise annuity in many people's impression is "after retirement" money, usually do not enter the divorce property division vision. But when one party has begun to receive a monthly or one-time pension, the ownership and division of the money needs to be taken seriously. The annuity that has been received is different from the account balance. It has been transformed from a closed pension system into a cash flow or deposit that can be actually used, and the treatment in the divorce division has also changed.

The Legal Nature of 1. Occupational Annuity and Enterprise Annuity

occupational annuity is mainly aimed at the staff of government organs and institutions, while enterprise annuity is for enterprises and their employees, both of which belong to the supplementary old-age insurance system and are additional old-age security in addition to the basic old-age insurance. The "Enterprise Annuity Measures" and "Occupational Annuity Measures for Organs and Institutions" have clear provisions on their payment, investment operation, and treatment.

1. Composition of annuity accounts

annuity accounts usually consist of unit contributions, individual contributions, and investment income. Units and individuals pay monthly fees according to a certain proportion, and after paying fees into individual accounts, they make market-oriented investments to generate investment income. Employees may receive an annuity on conditions such as retirement, settlement abroad or complete incapacity to work.

2. The difference between an annuity and a pension.

The basic old-age insurance has a stronger social security attribute, while the occupational annuity and enterprise annuity have the color of supplementary pension and welfare incentive. In the division of divorce property, the basic pension and supplementary annuity that have actually been received are handled in a similar way: the corresponding part of the marriage is the joint property of the husband and wife.

Definition of Payment Rights and Interests of 2. during Marital Relationship

article 80 of the Interpretation (I) of the Supreme People's Court on the Application of the Marriage and Family Code of the the People's Republic of China Civil Code stipulates that at the time of divorce, one of the spouses has not retired and does not meet the conditions for receiving pension insurance, and the other party requests to divide the pension insurance according to the joint property of the husband and wife If the people's court does not support it; after marriage, the pension insurance premium is paid with the joint property of the husband and wife, at the time of divorce, if one party claims to divide the part actually paid by the individual during the marriage in the pension account as the joint property of the husband and wife, the people's court shall support it.

1. Annuities refer to the idea of dividing old-age insurance.

Although the judicial interpretation is directed at basic pension insurance, annuities are similar in nature. For the balance of the annuity account that has not yet been received, at the time of divorce, only the portion actually paid during the marriage and its corresponding income can be divided.

2. Determination of payment time

the key to the division is to determine which contributions occur during the marriage. Generally, the payment records of the annuity account are retrieved from the date of marriage registration to the date of divorce proceedings or the date of divorce registration, and the unit and individual contributions and investment income during this period are stripped out as common property.

3. the object of the division of the annuity.

The object of the annuity that has been received is not the total amount received, but the part corresponding to the contribution interest during the marriage.

1. The calculation of the amount of the payment interest during the marriage.

If all the annuities are accumulated after marriage, each annuity received after retirement is, in principle, the joint property of the husband and wife. If part of the contribution has been accumulated before marriage, it is necessary to calculate the share of the joint property of the husband and wife in each period according to the proportion of the total contribution during the marriage.

2. Existing status of the amount received

annuities already received may be in the form of bank deposits, wealth management products, cash or other assets. At the time of division, the existing amount is first determined, then the common property portion is calculated according to the above proportion, and finally the division is decided by mutual agreement or court decision.

Difference between one-time and monthly collection of 4.

There are two ways to receive annuities, one-time and installment, and different ways have different effects on the division of divorce.

1. Treatment of one-time collection

after a one-time collection, the annuity is converted into a defined deposit or cash asset, and the division is relatively straightforward. After calculating the amount corresponding to the contribution interest during the marriage, the account holder pays half of the compensation to the other party, or by agreement to be owned by one party and compensated by the other party.

2. Treatment of monthly collection

in the case of monthly payments, the portion of the amount received in each period that belongs to the joint property of the husband and wife needs to be calculated on a monthly basis. In practice, there are two common ways to deal with it: first, a one-time division of the accumulated amount received but not consumed, and second, the portion of the amount received in each future period that belongs to the common property, and the corresponding proportion is paid by one party to the other party on a monthly basis. The second way needs to specify the payment period and adjustment mechanism in the judgment or agreement.

5. pre-tax deductions and the treatment of tax paid.

Annuities usually enjoy certain tax benefits at the contribution stage and are subject to the required personal income tax at the time of receipt. It is a matter of detail in practice whether the tax paid is required to be deducted when the annuity is divided.

1. After-tax amount as split base

it is generally recommended to use the after-tax amount actually received as the split base. If the amount already received includes taxes that are to be borne by the receiving party, the other party is not required to share that part of the tax burden. However, if the parties agree otherwise, they may also be divided according to the pre-tax amount and agree on the manner in which the tax is borne.

2. Tax projections received in the future

for future annuities received on a monthly basis, due to possible changes in tax rates and tax policies, courts usually do not make accurate predictions of future tax burdens, but rather deal with them on the basis of current actual receipts. The parties may agree in the agreement that, in the event of a major adjustment to the tax policy, it will be negotiated separately or settled according to the facts.

6. evidence retrieval and segmentation method selection

the evidence of annuity division is relatively professional, and it is recommended to start from the following channels:

1. Transfer to the unit or annuity management agency

the occupational annuities of government organs and institutions are generally managed by social security agencies or entrusted institutions, and enterprise annuities are jointly managed by enterprises and trustees, account managers and custodians. Account details and collection records can be retrieved through the unit's human resources department, annuity management agency or entrusted bank. In Ningbo, the staff of government organs and institutions can inquire about the payment information of occupational annuity through the "Zhejiang office", while the employees of enterprises mainly rely on the human resources department of the unit and the entrusted bank.

2. Bank flow and tax vouchers

the annuity that has been received will usually enter the recipient's bank account, and the bank flow for the corresponding period can confirm the time and amount of the collection. At the same time, personal income tax records can assist in verifying the authenticity of annuities.

3. The choice of segmentation method

if the annuity has been received and the amount is clear, it can be divided at a one-time discount; if the annuity is received on a monthly basis and the amount continues to occur, it can be agreed to be paid on a monthly basis or divided first on the accumulated balance. The choice of which method depends on the size of the annuity, the economic situation of both parties, and the ease of execution.

7. case proof

in practice, one party receives an occupational annuity on a monthly basis after retirement, and the other party claims to divide the portion of the annuity corresponding to the contribution during the marriage at the time of divorce. The court usually takes the contribution record of the annuity account, calculates the share of the joint property of the husband and wife in the amount received during the marriage as a proportion of the total contribution, and divides the portion that has been received but not consumed in a lump sum, or the recipient pays the corresponding proportion to the other party on a monthly basis. In similar cases, the amount of division or compensation is usually in the range of $100000 to $3 million, depending on the size of the property and the circumstances of the evidence.

In practice, one party participates in the enterprise annuity plan during the marriage relationship, receives the entire annuity balance at the time of divorce, and the other party sues for division. The court usually reviews the payment records and collection vouchers, and recognizes the unit and individual contributions and corresponding investment income during the marriage as the joint property of the husband and wife, and the receiving party pays half of the discount compensation to the other party for the part of the joint property; the tax paid is generally deducted first from the divisible amount. In similar cases, the amount of division or compensation is usually in the range of $100000 to $3 million, depending on the size of the property and the circumstances of the evidence.

8. Risk Alert

• treat all received annuities as personal property, ignoring the common nature of the interest in contributions during the marriage.
• Failure to distinguish between pre-marital and post-marital contributions results in the division of personal property and common property.
• The rapid transfer or consumption of funds after a one-time collection increases the difficulty of obtaining evidence and execution by the other party.
• Ignoring the sharing of taxes paid leads to inconsistencies in the calculation of compensation.
• In the case of monthly collection, there is no agreement on the future payment period and adjustment mechanism, and subsequent disputes continue.

9. FAQ

do occupational annuities and corporate annuities have to be divided when they divorce?

The portion paid during the marriage shall be the joint property of the spouses and shall be divided upon divorce. The portion accumulated by premarital contributions is usually personal property. The annuity that has been received shall be divided according to the proportion corresponding to the contribution interest during the marriage.

Can annuity be divided before retirement?

If the conditions for receipt have not been met, the division cannot normally be received directly, but the portion actually paid during the marriage and the income from its investment may be claimed to be divided at a discount as the joint property of the husband and wife.

Which is better, one-time collection or monthly collection?

The form of funds after one-time collection is clear and the division is relatively simple. The monthly collection requires the calculation of the proportion of common property in each period and the agreement on the accumulated unconsumed portion or the amount of each future period, which is slightly more complicated to operate.

Do you want to deduct the tax paid when you receive the annuity?

Generally, the actual amount received after tax is used as the split base, and the tax is borne by the recipient. The parties may also agree separately on pre-tax division and tax sharing.

Practical Experience of 10. Lawyers

occupational annuity and enterprise annuity usually do not enter the vision of divorce division, but once one party has started to receive it, it must be taken seriously. Unlike the balance still lying in the account, the annuity that has been received often becomes a deposit or disposable cash flow, and the nature and treatment of it also changes. The first step in taking over the case is to make clear the type of annuity, the subject of payment, the starting and ending time of payment and the current receiving status-whether it is an occupational annuity of an organ or institution, or an enterprise annuity of an enterprise, whether it is still being paid, has stopped paying, or has been received on a monthly or one-time basis, which directly determines how to talk about it later.

The rights and interests formed by contributions during the marriage are usually included in the division. In practice, the more troublesome part is the intertemporal part: the account may have both intramarital and premarital accumulation, and the divisible proportion needs to be calculated according to the time period. Therefore, it is very important to obtain the payment details, salary scale and the situation description issued by the unit. One party's oral memories are often not correct, and it is difficult to support your claim.

In terms of division, the most convenient way to reach an agreement is to allow the party in need to continue to receive or hold the corresponding interest, which will pay compensation to the other party in the amount that can be divided. Where pre-tax deductions and tax payments are involved, the tax impact should be taken into account and the figures should not be left hanging in the air. Evidence of such rights and interests is mostly in the hands of units, social security or annuity management institutions. Once the relationship is tense before and after divorce, it may be difficult to obtain them. Therefore, it is necessary to collect and lock the amount as soon as possible so as not to be empty-handed when dividing.