이혼시 퇴직연금 재산분할의 집행법적 문제점과 개선방안에 관한 소고

A Study on the Civil Enforcement of Equitable Distribution of Future Pension Rights upon Divorce

It has been recognized that retirement pension rights are the second most valuable financial resource in a marriage after the real estate, such as family home. When the marriage is getting worse, it is up to the family court to decide whether and how joint assets, including pension rights, are divided. Before July 2014, the Supreme Court has continuously denied to divide future pension rights. However, in July 2014, in a divorce action between public official and his housewife, the entire bench of Supreme Court changed its own view en banc by allowing division of future pension rights, whether vested or not. And the Court determined the method of division that pension recipient pay to the other spouse a certain proportion of the pension payment at a regular interval is also possible. However, the spouse other than recipient may experience difficulties, if the recipient do not fulfill his obligation voluntarily. If the recipient fails to pay annuity without just cause, the family court may order performance under Art. 64 of the Family Litigation Act. This order is indirect remedy in nature, because only fine or detention is available. Direct remedy of seizure and assignment order is not availble at this moment, because every public Pension Acts have a provision against assignment and seizure. In 1974, the U.S. Congress enacted the Employee Retirement Income Security Act (ERISA) in order to prevent the seizure of retirement plan. On the contrary, several states continued to give equitable distribution. The conflict make the Congress legislate the Retirement Equity Act of 1984, creating Qualified Domestic Relations Order(QDRO). Once QDRO is entered by the state court, the non-employee spouse can be paid directly from the pension provider. In U.K., since 1 December 2000, the Welfare Reform and Pensions Act 1999 has allowed a couple on divorce the option of pension sharing and the court can grant a pension sharing order against the members pension rights in a pension arrangement. The pension sharing order will create a separate pension arrangement in the name of the former spouse. Both U.S. and U.K. legislation can be good examples of direct remedy for the procedural difficulties of pension division. Hence next step should be taken by the National Assembly to make the pension division upon divorce possible both substantively and procedurally.