Articles Tagged with pension

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I would like to begin this blog post by thanking all those who are currently serving in the United States military and to all Veterans  that have served. Currently, there are approximately 22 million veterans of the U.S. armed forces and 1.5 million currently serving. On September 15, 2017, the U.S. Supreme Court issued a ruling potentially affecting their military families. The Supreme Court unanimously ruled in May, 2017, in the case of Howell v. Howell (No.15-1037) that a state court may not order a veteran to indemnify a divorced spouse for the loss in the divorced spouse’s portion of the veteran’s retirement pay caused by the veteran’s waiver of retirement pay to receive service-related disability benefits.

The facts surrounding case involved an Arizona court awarding Sandra Howell half of Air Force veteran John Howell’s retirement pay when the couple was divorced in 1991. Mr. Howell later became eligible for disability benefits in 2005 and elected to waive $250 of his $1,500 a month in retirement pay, which is taxable, in favor of $250 monthly disability pay, which is not taxable. The election reduced his ex-wife’s monthly divorce settlement by $125 and she went back to court requesting her half of what his pay would have been had he not chosen the election.  She won and the Arizona Supreme Court affirmed that decision.  Mr. Howell appealed the case to the United States Supreme Court which reversed the state Supreme Court’s decision.file000366641089-300x225

The Supreme Court further affirmed and clarified the prior decision that retirement pay that is received from the military as disability payments that commenced solely because of a service member’s disability is not payable to a former spouse. Mansell v. Mansell, 490, U.S. 581, 584 (1989). The Uniformed Services Former Spouses’ Protection Act (USFSPA) precludes a state court, within the context of a divorce proceeding, from dividing military disability retirement pay pursuant to state property laws because the USFSPA authorizes that only disposable retired or retainer pay be counted as marital property for equitable distribution. 10 U.S.C. § 1408(a) (4) and (7).

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1409593_gavel_3On September 2, 2014, the New Jersey Appellate Division published an opinion in the case of Krupinski v. Krupinski, reversing the trial court’s decision denying Mr. Krupinski’s motion to terminate alimony, and directing the trial court on remand to provide for an exchange of discovery and the possibility of an evidentiary hearing. The basis for Mr. Krupinski’s application was that his former spouse, from whom he was divorced in 1990, was receiving a large portion of this teacher’s pension through a Qualified Domestic Relations Order (QDRO). Continue reading

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In any and all cases where a pension is to be equitably distributed between the parties, there are two questions that a family law practitioner must always consider: (1) How is the pension going to be valued and istributed;  and (2) Are survivor benefits going to be elected for the non-pensioner spouse?  The recently published decision in Evans-Donahue v. Donahue, which was drafted by the Honorable Steven J. Polansky, J.S.C., provides much needed insight into the answering of each of those questions when it comes to the equitable distribution of pensions. Continue reading