Pension May Be a Marital Asset Depending on Timing

Is a pension a marital asset subject to equitable distribution? It depends on when it was acquired.

In the case I’m discussing this week, the Second District Court of Appeal reversed and remanded for the trial court to make findings regarding what portion of the former wife’s pension should be classified as a marital asset. The case is Pearson v. Pearson, Case No. 2D17-4012 (filed March 22, 2019).

Trial Court Proceeding

The former wife testified that she began to contribute to her retirement fund when she became a teacher in 2011. She was placed on administrative leave in late August 2013 and released from her job about a month later. She received pay while on administrative leave but was then unemployed until November 2013. The trial court, over the former husband’s objection, identified the former wife’s pension as a nonmarital asset, noting that she became employed after she filed her petition.

Standard

Generally, the date for determining whether an asset is marital is “the date of the filing of a petition for dissolution of marriage.” An asset acquired by a spouse after “the date of the marriage and not specifically established as nonmarital assets” is a marital asset. Fla. Stat. § 61.075(8). “Marital assets” include “[a]ll vested and nonvested benefits, rights, and funds accrued during the marriage in retirement, pension, profit-sharing, annuity, deferred compensation, and insurance plans and programs.” § 61.075(6)(a)(1)(e).

Pension a Marital Asset?

The former husband argued the pension was a marital asset. The former wife disagreed, arguing she was not vested and had no retirement plan until after she filed her petition. The former wife pointed out that she was first placed on administrative leave, then her contract was terminated, before she filed her petition for dissolution.

The trial court concluded that former wife’s pension was a nonmarital asset because her employment start date was after she filed her petition. See § 61.075(7).  However, the former wife began contributing to her retirement plan as early as 2011. She offered no evidence indicating that she established her pension as a nonmarital asset. Some portion of it was a marital asset.

Evidence was introduced that the former wife was placed on administrative leave and then terminated from her employment as a teacher during the marriage. But the record didn’t show if and how the former wife’s administrative leave or termination affected her pension. For that reason, the trial court reversed and remanded for the trial court to make findings regarding what portion of the former wife’s pension should be classified as a marital asset.

Appellate Take Away

If a trial court makes a determination regarding whether an asset is marital without having substantial competent evidence to support it, there’s a potential appellate issue. If this has happened to you, consult a family law appellate attorney right away.

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