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Retirement Benefits and Divorce in Florida

Where Strategy Meets Skill

For better or worse, divorce in Florida is a fairly simple matter when it comes to the distribution of marital assets and liabilities.

In general, any asset that is acquired between the date of the marriage and the date of filing for divorce is presumptively considered marital and thereby divisible 50% to each spouse. This includes retirement benefits, stocks, 401K plans, and pensions.

The reason for this simplistic approach is a matter of public policy. The idea is that your marriage to the spouse is a life partnership that enabled you to pursue participation and/or savings in these plans. Whether or not the enabling was “direct” or “passive,” merely emotional support or financial in nature is of little consequence. If asset accrual happened during the marriage, then your spouse had some tangential role in making it happen.

Many people become very irritated to learn that their retirement or pension plans are eligible for distribution in this fashion – but again, that is simply the law of this state. It is best to assess your options for how that law applies to you and how to address it, rather than to forestall the inevitable by insisting to fight a battle that might not be won. In this regard, the advice of an attorney as to your individual equitable distribution options is essential.

One possibility to court ordered 50% division of the retirement asset is alternative dispute resolution. If you go to trial, the Court is obligated to apply the law. However, if you settle out of court you and the other spouse are free to contract an alternative. Options such as mediation or even collaborative divorce might come in handy for this purpose, but be prepared to determine what you are willing to negotiate away in return, since your spouse is sure to know his or her rights.

Another option, albeit not often successful, is to request “unequal distribution” of the retirement asset. This, however, does not often work. Most Courts loathe going against the 50% presumption since there is a high rate of reversible error in these judgments.

It is more frequent to see a court award a retirement asset to the spouse who earned it and to offset that award by giving the other spouse something else in its place, such as interest in a car or home. Sometimes, however, this proves impossible, particularly where there are no other assets of substantive value to offset.

The good news is the martial term ends as of the date of filing, so as soon as you indicate to the Court your intent to divorce whatever money accrues in the pension from that filing date, forward, is yours to keep. Likewise, anything that was in the pension prior to the marriage date is similarly non-marital.

Be forewarned, however, that voluntarily contributions to these type of assets shall not affect your ability to pay for other items such as alimony or child support.

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