[Chatting] My wife who even included the 'national pension' in the division of her wealth knowing the situation of debt...What's the court's decision?

□ Broadcast date and time: November 28, 2024 (Thursday)
□ Host: Attorney Cho In-seop
□ Cast: Attorney Song Mi-jung

* The text below may differ from the actual broadcast content, so please check the broadcast for more accurate information.

□ DEAR READER: I got divorced in a lawsuit a few years ago. At that time, I was running a restaurant. The deficit continued due to the COVID-19 pandemic. I managed to survive by getting into debt thinking that the pandemic would be over soon because the vaccine came out. However, when the debt increased more than expected, I closed the restaurant, and my wife suddenly filed for divorce. I was devastated because there was nothing wrong with my husband and I was left with a deficit restaurant and a divorce. At that time, I was in excess of debt because I was in a lot of debt. Knowing this situation, my wife included the national pension in the property division. However, even including the National Pension Service, my net assets were in negative condition due to debt. On the other hand, the wife had a net property of about 20 million won, including deposits and insurance. Including my national pension, my wife had a lot of wealth, so the court rejected her request for the division of her property. I thought that's how the divorce ended. Years later, my wife made a request to the National Pension Service to split my pension into a lump sum. When the request for the division of property, including pensions, was rejected in case of divorce, this time, he applied for the division of the pension to the National Pension Service. I really resent my wife for having to do this. I owe a lot while running the restaurant. Can we split the property for this as well?

◇ Lawyer Cho In-seop (hereinafter referred to as Cho In-seop): It was about the division of the property of the counseling center by lawyer Cho In-seop. People who tried to divorce by agreement often go to litigation because of this division of property, right?

◆ Lawyer Song Mi-jeong (hereinafter Song Mi-jeong): Yes, in a consensual divorce, only divorce and child rearing are decided, but if there is a dispute over child rearing, we cannot have a consensual divorce, so we have to go to the lawsuit. In addition, even if the child rearing was agreed and the divorce was made through consultation divorce, if the property is not agreed on separately, only the division of the property can be tried separately. Of course, if you try to agree on divorce, child rearing, and property division, but if it doesn't work out, you can go to a lawsuit divorce and settle this all at once.

◇ Cho In-seop: You ran a restaurant, but is the debt incurred while running the business also subject to property division?

◆ Song Mi-jeong: In principle, debts incurred by one of the couples for daily households and the formation of common property during the marriage period are subject to liquidation when dividing property. For example, loans, installments, and loans received by family members to maintain their lives, such as family living expenses, child support expenses, and purchase of common items, are naturally included in the property division. And in the case of counselors, since they have earned income while running a business and have financed living expenses with that income, debts incurred in operating a business will also be included in the property division. However, debts that are not related to marital co-living, such as loans incurred for personal purposes without knowing the wife or husband, or debts incurred for personal purposes by the spouse, will be excluded from the property division.

◇ Jo In-seop: There's a principle of pension division in case of divorce. What's that?

◆ Song Mi-jeong: In principle, public pensions such as national pensions, civil servants pensions, private school pensions, and military pensions are not included in the property division unless there is a separate agreement or mention when divorcing. In particular, in the case of divorce by lawsuit, it is common to exclude the pension from the property division and divide it separately according to the Pension Act unless the two parties agree to include it in the property division. Therefore, if you divorce by lawsuit, if you ask the Pension Service to divide your pension rights after the divorce is confirmed, each pension corporation will calculate the marriage period during the pension subscription period and pay the pension in installments. However, if you divorce by agreement or mediation and you decide to include the pension in the property division while filing a divorce lawsuit, each pension corporation will divide the pension into the details set out in the agreement, mediation, or judgment. What's important here is that there should be an explicit statement on the pension, and I don't think it's set aside for the pension division with the phrase "each one's own property" without mentioning the pension.

◇ Cho In-seop: But... Even if the court rejected the claim for the division of property for the National Pension Service, can you file a separate claim for the division of the pension to the National Pension Service? Is my wife's pension split claim acceptable?

◆ Song Mi-jeong: Your wife filed for divorce and requested a division of her property, including her pension. However, when his claim for the division of property was rejected, he seems to have requested the Pension Service to pay the pension in installments on the grounds that there is only a dismissal clause in the judgment and there is no separate statement on the pension. However, your wife's request for a split would not be accepted because her wife's rejection of all claims, including claims for a split, means she has rejected claims for a split.

◇ Cho In-seop: But property division is not just for one side, right? Deposits, insurance, etc. You said your wife has more wealth, so it's going to be divided, right?

◆ Song Mi-jeong: In this case, it appears that your wife's claim for property division was rejected because she had less assets than her wife, including her pension. If she had claimed it against her, she could have received a portion of what she had charged her. However, it seems that you did not receive the split because you only sought to have your wife's claim dismissed and did not file a claim against her. In fact, even if there is something to be divided, you cannot receive it unless you claim it, so if you want to divide the property, you must make a claim.

◇ Cho In-seop: <Counseling Office of Attorney Cho In-seop> Now, to summarize the contents of the consultation so far... Debts related to the formation of daily households or common property during marriage are subject to property division, but debts incurred for personal purposes are excluded. Public pensions are not subject to property division unless there is a separate agreement in case of divorce, and if you divorce by lawsuit, the pension will be divided separately. Your wife's claim for division of property has been rejected, so your claim for division of pension will not be accepted. So far, I've been with lawyer Song Mi-jung.

◆ Song Mi-jeong: Thank you.

◇ Cho In-seop: You can listen to <Attorney Cho In-seop's Counseling Office> again on YouTube and the website. If you have any questions or suggestions, please leave a message on the consultation bulletin board on the website.