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Equitable Distribution of Pensions in Florida

DivWords

In a Florida divorce, a pension is often a prized asset, especially when there are few others to divide. However, pensions are a somewhat unique item in that they are governed by specific laws mandating their division, instead of a family court judge simply splitting them in half or dividing in another appropriate way. Depending on the type of pension account, it can be a complex process to include them in the equitable distribution of marital assets. An attorney can very often be helpful in the process.

Which Part Is Marital Property?

The first question usually asked when dealing with asset division for something like a pension or a bank account – something that changes shape and scope over time – is whether it is all marital or separate property, and if it is not, which part is which. Marital property is divisible in Florida, but as one might imagine, separate property belongs solely to one spouse. The general rule is that the part of your pension that you earned during the marriage is marital property, and the rest is not. The statute specifies all “vested and nonvested benefits, rights, and funds accrued during the marriage” in retirement accounts, annuities, insurance plans, and the like.

When it comes time to divide the amounts, the court will do so based on a fairly exhaustive list of factors. In addition to several others, the most commonly taken into account include the length of the marriage, the current and future earning potential of both spouses, the medical needs of both spouses, and so on. Most courts will begin from the idea that a 50-50 split is the most equitable result, and then take factors into account that may cause them to deviate from that.

Federal Law Considerations

The Florida family court may divide your pension, but when you actually retire, federal law may play a role in who actually receives the amount set aside. Many pension plans and other retirement instruments are controlled under the federal Employee Retirement Income Security Act (ERISA), and have strict rules about who can access the funds in that account. If, for example, your divorce decree holds that your ex-spouse is entitled to half of your pension, they cannot simply withdraw it. ERISA forbids anyone but the pension holder from withdrawing from that pension account.

This is remedied by the completion of a document called a Qualified Domestic Relations Order (QDRO). A QDRO is a statement, in compliance with ERISA, that another person is entitled to receive a set percentage of the proceeds from the pension account. It has to name an alternate payee – in the case of a divorce, the ex-spouse – and once it is entered into the court record, the ex-spouse can then receive the amount that was granted to them in your divorce decree. Not every pension plan requires this step, however, so it is a good idea to read up on yours to ensure what is necessary and what is not.

Contact A Hollywood, FL Divorce Attorney

Divorce is never as clear-cut as people want it to be, and issues like retirement plans can be quite complex in particular. If you have questions about dividing these types of assets during your divorce, it is a good idea to consult an attorney who has handled cases of this nature. The Law Offices of Steven A. Mason, P.A. has served Hollywood and the surrounding communities for many years, and we are happy to try and assist you with your case. Contact our office today to schedule an appointment.

Resources:

dol.gov/agencies/ebsa/about-ebsa/our-activities/resource-center/faqs/qdro-overview

leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&URL=0000-0099/0061/Sections/0061.075.html

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