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Without Specific Agreement, Wife Not Allowed to Share in Husband’s Military Pension Accrued Post-Divorce

military-uniform.jpgSometimes, in divorce matters, a couple can seem to reach a mutual agreement on the distribution of their marital assets, only to uncover a sticking point later. Such was the case for one Florida couple, who battled over the division of the husband’s military pension. The Second District Court of Appeal threw out a trial court order regarding the pension because the terms of that order contained elements that were not part of the couple’s mutual agreement and allowed the wife to share in benefits the husband would earn after the marriage had ended.

J.F.¬†filed for divorce in 2011. His wife asked for a division of the couple’s retirement accounts as part of equitable distribution of their assets. The couple arrived at a settlement agreement, which they conveyed orally to the court on the record. At the hearing, some confusion emerged when the spouses’ attorneys attempted to recite the agreement about the husband’s military pension to the trial court. The parties later disagreed on the precise terms of the division of the military retirement, and the trial court held another hearing. The husband later challenged the resulting “Order for Division of Military Retirement Pay”, claiming it did not reflect the couple’s true agreement.

The appeals court agreed with the husband. The order suffered from two fatal flaws. First, it gave the wife a share of several future benefits, including the husband’s post-retirement cost-of-living adjustments, a portion of any retroactive payments the husband might receive if he chose to remain active after his normal retirement date and a piece of the husband’s exit bonuses, voluntary separation incentive pay or special separation benefits. This was problematic because the husband would not accrue any of these benefits until after the marriage ended and none of these benefits were discussed in the couple’s oral recitation of their agreement before the trial court. As a result, the wife had no claim to a share of those benefits and the order should not have included them.

The other flaw was the calculation of the wife’s share of the husband’s pension. The correct procedure for calculating a spouse’s portion of a retirement account involves creating a mathematical equation in which the present value of the account is multiplied by a fraction in which the numerator is the length of the marriage and the denominator is the amount of time the employee-spouse had in the pension plan at the time of the divorce. The order in the present¬†case was incorrect because it used a future value of the husband’s pension and used the husband’s amount of time in the pension plan at the time of his retirement. This was not equitable because it would improperly allow the wife to share in the husband’s pension earnings accrued during the non-marital period from the finalization of the divorce until the husband’s retirement.

In many cases, a mutually agreeable settlement is the best way to resolve the distribution of assets in divorce. However, whether you seek a settlement or a judicial resolution of the division of your property in divorce, it is important to have capable legal counsel on your side. For advice and representation for your divorce case, contact the South Florida family law attorneys of Sandy T. Fox, P.A. Our attorneys can help you make certain that any marital settlement you reach adequately protects your rights under the law.
Contact us online or by calling (800) 596-0579 to schedule your confidential consultation.

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