Virginia
Posted January 25, 2009 
Cusack v. Cusack, 2009 Va. App. Lexis 21
Focus: Valuation/Direct Payments
Comment: The appellate court held that retirement benefits should be valued “as of the date of the evidentiary hearing” pursuant to VA Code § 20-107.3(A). Therefore, payments from the husband’s, in pay status, military pension should commence at the date of the hearing and not before, as ordered by the trial court. To commence payments prior to the hearing date, a trial court should use a “dissipation of assets” analysis. The court also held that the husband may be ordered to make direct payments to the wife until the plan administrator accepts an appropriate court order.
Arizona
Posted November, 2007
Boncoskey v. Boncoskey, 167 P.3d 705 (Ariz.App.Ct. 2007)
Focus: Survivor Benefits/Time-Rule
Comment: Appellate court vacated a Domestic Relations Order that awarded the former spouse a survivor benefit that included benefits that were the separate property of the husband. The Arizona State Retirement System (“ASRS”) only permits a participant to designate one contingent annuitant. Thus, the award to the former spouse of the entire survivor benefit would preclude the husband from providing an annuity for a subsequent wife. The Court also held that Johnson, not Koelsch controls in situations involving pension benefits that have not matured. See Johnson v. Johnson, 638 P.2d 705 (Ariz.S.Ct. 1981); Koelsch v. Koelsch, 713 P.2d 1234 (Ariz.S.Ct. 1986).
Posted May 14, 2007
Dressler v. Morrison, 130 P.3d 978 (Ariz.S.Ct.
2006)
Focus: Tenant in Common Remedy
Comment: The Court held that a separate
civil action is required
to establish co-tenant rights under 25-318 (B). A separate action
prevents the action from being barred by res
judicata principles.
A separate civil action also does not “impair the finality
of the dissolution decree.” Moreover, the holding supports
the compelling policy interest favoring the finality of property
settlement agreements.
Posted November 29, 2006
Lamparella v. Lamparella, 210 Ariz. 246
(App. 2005)
Comment: Court held that A.R.S. § 25-318
(B) is inapplicable when a dissolution decree effectuates an
explicit property settlement that disposes of all of the parties’ community
assets. A.R.S. § 25-318 (B) provides that property not disposed
of in a dissolution decree is thereafter owned by the former
spouses as tenants in common. Court also held that Arizona’s
revocation by divorce statute A.R.S. § 14-2804 can not be
avoided by spousal inaction.
California
Posted November, 2007
Caverly v. Gray, 66 Cal. Rptr. 3d 87 (Cal.App.Ct. 2007)
Focus: Time-Rule
Comment: Trial court erred by failing to exercise its discretion in the division of the community retirement plan based upon equitable considerations. A trial court is not bound by a particular method of division, including the time-rule. Rather, a trial court must choose a method that will “achieve substantial justice” (citing In re Marriage Gowan, Cal.App.4th 80 (1997).
Texas
Posted June 29, 2007
Ghrist v. Ghrist, 2007 Tex. App. LEXIS 3596 (Tex.App.2007)
Focus: Waiver of Military Pay
Comment: Court denied the former spouse from receiving a portion
of disability pay the member received in lieu of his military
pay. See Mansell v. Mansell, 490 U.S. 581(1989). A member may waive a portion of his retired pay to receive disability pay
instead. Disability pay can not be assigned. Id. This case highlights
the importance of using precise indemnification language that
should be included in the decree to prevent this result.
New Mexico
Posted February 2007
Hadrych
v. Hadrych, 2007 NMCA 1; 2006 N.M. App. Lexis 156 (Ct.App.2006)
Focus: Waiver of Military Pay
Comment: Court required Member Former Husband
to pay to 50% of his military pay directly to the Former Spouse
pursuant to the parties divorce decree, even though there was
no indemnification provision in the settlement agreement (distinguishing Scheidel, 4 P.3d 670 (Ct.App.2000) where the settlement agreement
contained an indemnification clause for any actions or reductions
caused by the member). The court relied on the principles of
fairness and equity at arriving at its decision.
Posted January 2, 2007
Palmer v. Palmer, 142 P.3d 971 (Ct.App.2006)
Focus: Survivor Benefits and Due Diligence
of Counsel
Comment: Court affirmed the
district court by awarding survivor benefits in a post-decree
assignment order even though the benefit was not addressed in
the divorce decree. The court stated that survivor benefits are
a valuable community asset (citing
Irwin v. Irwin, 910 P.2d 342 (App. 1996). The Court’s
ruling has little effect since
the Office of Personnel Management rejected the wife’s
claim for survivor benefits due to her failure to follow procedures
pursuant to the Code of Federal Regulations. This case highlights
the importance of retaining competent counsel familiar with federal
retirement benefits.
Florida
Posted January 2, 2007
Rumler v. Rumler, 932 So. 2d 1165 (2nd
DCA 2006)
Focus: Disability and Support
Comment: Case involved a non-ERISA municipal
police pension plan (not subject to a QDRO). The court reversed
an award for alimony since the trial court failed to make an
allocation between the retirement and disability portions
of the pension. Only the retirement portion is subject to equitable
distribution. Court also reversed the trial court for failing
to make sufficient findings for an alimony award pursuant to
FSS § 61.08(2).
Posted January 2, 2007
Nix v. Nix, 930 So. 2d 711 (1st DCA 2006)
Focus: DROP Benefits
Comment: Court held that the
former spouse is entitled to DROP benefits when awarded an interest in
the participant’s pension plan. Court certified the question
to the Florida Supreme Court. See also
Russell v. Russell, 922 So. 2d 1097 (4th DCA 2006)(affirming
former wife’s interest in DROP).
Posted January 2, 2007
Dechellis v. Dechellis, 925 So. 2d 379
(4th DCA 2006)
Focus: Procedural Due Process
Comment: Court vacated the
entry of a QDRO since the former husband failed to receive a “notice
of hearing” pursuant to Florida Rule of Civil Procedure
1.090; general notice of the hearing is insufficient. See
also Butts v. Hegmann, 705 So. 2d 1007 (Fla. 4th DCA 1998)
(holding that adequate notice is imperative when a QDRO is entered
since it produces a final result).
Posted December 7, 2006
Smith v. Smith, 934 So. 2d 636 (Fla.
2nd DCA 2006)
Comment: Court held that a present value analysis
of a defined benefit pension plan must be based on competent
and substantial evidence, usually requiring expert testimony.
Appellate court reversed the trial court for accepting a present
value calculated by the former husband.
Ohio
Posted June 1, 2009 
Legislative Override of Neville: Ohio H.B. 395
The 127th Ohio General Assembly enacted H.B. 395 that amended Ohio’s equitable division statute § 3105.171, effective April 7, 2009. The goal of the bill is to react to the Neville v. Neville, 791 N.E.2d 434 (Ohio 2003) decision by restoring the law in Ohio to exclude social security benefits from the division of marital property. See Practice Pointer Social Security Offset Strategy in current issue for further analysis.
Posted January 2, 2007
Romans v. Romans, 2006 Ohio 6554 (App. 2006)
Focus: Constructive Trust
Comment: Appellate Court permitted the imposition of a constructive
trust on the benefits received by the “new” wife
of the Participant permitting the former spouse to receive a
portion of the survivor benefits despite the statutory prohibition
of R.C. 3105.86.
Posted November 29, 2006
New Legislation:
House Bill 98 impacts all five (5) of Ohio’s public retirement
systems and is effective October 27,
2006. The bill provides
additional protection for an alternate payee. The legislation
permits an alternate payee to receive a joint and survivor annuity
and COLAs, if awarded in the divorce decree. See newsletter for
more information.
ERISA
Posted March 12, 2009
Kennedy v. Plan Adm’r for DuPont Sav. & Inv. Plan, 129 S. Ct. 865 (2009)
Focus: Federal Common Law Waiver
Comment: The United States Supreme Court held that ERISA imposes a statutory fiduciary duty upon the plan administrator. The duty imposed by ERISA is the duty to act in accordance with plan procedures in determining who is entitled to beneficiary status under the plan. Moreover, a plan administrator is required under the rule to disregard a waiver of benefits if that waiver conflicts with plan procedures. The Court also concluded that a waiver is not rendered invalid by ERISA’s anti-alienation provision.
Lexis Expert Commentary Link
Posted December 1, 2008
Carmona v. Carmona, 544 F.3d 988 (9th Cir. 2008)
Focus: Vesting of Survivor Benefits
Comment: The vesting of survivor benefits in divorce is an issue of first impression for the 9th Circuit. The 9th Circuit held that survivor benefits irrevocably vest in the participant’s spouse at the annuity starting date and may not be reassigned to a subsequent spouse via QDRO. The Court also held that a state law constructive trust cannot be used to contravene the dictates of ERISA.
Carmona Casenote (click here) 
Files v. ExxonMobil Pension Plan, 428
F.3d 478 (3rd Cir. 2005)
Focus: Nunc Pro Tunc QDRO
Comment: The 3rd Circuit permitted
the entry of a nunc pro tunc QDRO
following the death of the Participant. The Court held that the
parties’ divorce settlement agreement created a separate
interest in the plan for the former wife, prior to the former
husband’s demise. The court distinguished its holding in
Samaroo. See Samaroo v. Samaroo,
193 F.3d 185 (3rd Cir. 1999). The court also retained supplemental
jurisdiction over the malpractice claim
against the former wife’s divorce attorney.
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