How Do You Divide a Military Pension in a Florida Divorce?
One of the trickier aspects of dividing marital property in a Florida divorce case is dealing with a spouse’s pension. Florida is an equitable distribution state, which does not always mandate a strict 50/50 split of assets. More to the point, determining how much of a pension is considered “marital property” requires a careful examination of the details in a given case.
Generally speaking, only that portion of a pension earned or accrued during the marriage is considered marital property. The parties may decide otherwise, of course, through a prenuptial or marital settlement agreement. But absent such an agreement, any pension benefits earned before or after the date a party files a Petition for Dissolution of Marriage are considered the separate property of that spouse.
Divorce Settlement Established Former Husband’s “Hypothetical” Retirement Date
A recent decision from the Florida Sixth District Court of Appeal, Rushing v. Rushing, considered the interpretation of a marital settlement agreement related to a military pension. The husband and wife in this case were married for 12 years before divorcing in 2013. The husband joined the Air Force in 1994, seven years before the marriage, and remained on active duty until his retirement in 2018, five years after the divorce.
Had the former husband hypothetically retired in 2013 when the parties divorced, his Air Force pension would have been 45 percent of the average monthly pay he received during his “most lucrative three years of service.” By waiting until 2018 to retire, however, his monthly pension increased to 60 percent of that amount.
Under the terms of the parties’ divorce agreement, the former wife’s share of the pension was based on “the salary and rank” the husband held when the divorce petition was filed. But in a post-divorce action seeking modification of the judgment, the former wife argued that other language in the agreement required the court to base her share of the pension on the former husband’s entire military career. The trial court agreed with the former wife’s interpretation and granted the requested modification.
The Sixth District reversed. It held that the terms of the marital settlement agreement were “unambiguous” and required division of the former husband’s pension based on what he would have received had he retired in 2013. While there was some technical terminology that might have supported the wife’s interpretation, the Sixth District said that was irrelevant given the “plain language” of “the agreement as a whole.” In short, the former wife knew what she was agreeing to when she accepted 2013 as the basis for establishing her share of the pension.
Contact a Miami Asset Division Lawyer
Pension and retirement income often make up a substantial part of a high net worth couple’s assets. It is therefore crucial to accurately account for this property when negotiating a divorce settlement or presenting arguments to a judge in contested litigation. Our Miami asset division lawyers have the skill and experience to handle these complex matters. Contact Hamilton O’Neill today at 305-371-3788 to schedule a consultation with a member of our team.
Source:
scholar.google.com/scholar_case?case=12902184627046783260