When is spousal support ordered and shouldn’t the value of pensions be based on future growth?

Question:Cordell & Cordell attorney Andrea Miller

I have signed a stipulated order and paying a large amount each month in spousal support. Isn’t support supposed to be worked out in the separation or post-nuptial agreement?

Another issue is my soon-to-be-ex-wife’s teacher’s pension. I have been told that the cash value of the pension is the credit I would be getting in dividing property. But the teacher’s pensions are set to increase over the next several years so are they not valued based on future growth?

Answer:

I am only licensed to practice law in North Carolina and therefore my answer will consist of using North Carolina law.  Please contact a lawyer in your state to get legal advice about how Pennsylvania would answer the question.  Cordell & Cordell has attorneys in Pennsylvania and they would be happy to assist you.

Unfortunately, there are too many unknowns in order to answer your question.  If the Order does not contain provisions to support then how did you decide to pay X amount per month? I know that it was not addressed in the Order, so was this an amount agreed to in a post-nuptial agreement or was it merely verbally agreed upon?

In North Carolina, there is no one way to go about deciding about the issues of support. You can either agree in an out of court agreement (a post-nuptial, also known as a separation agreement) you can have the judge determine the appropriate amount, or you can agree without the judge, but have the judge sign off on it to make it a binding Court Order. I am unsure about how Pennsylvania handles support, however, so an attorney in your state needs to be contacted.

In regard to the pension, in North Carolina, we have what is called equitable distribution.  Basically, Courts take the marital property acquired from the date of marriage until the date of separation and try to divide it equally between the parties. There is a presumption of 50/50 but there are a number of factors that can make the distribution unequal.

In regard to pension rights, you have to look to the law in your state. Each state is different in how they interpret property rights, and I am only licensed to practice in North Carolina. In North Carolina, for example, both vested and non-vested pension are marital property to the extent that the labor of the marriage earned them.  North Carolina Statute 50-20.1 states that “the award shall be determined using the proportion of time the marriage existed (up to the date of separation of the parties), simultaneously with the employment which earned the vested and non-vested pension, retirement, or deferred compensation benefit, to the total amount of time of employment. The award shall be based on the vested and non-vested accrued benefit, as provided by the plan or fund, calculated as of the date of separation, and shall not include contributions, years of service, or compensation which may accrue after the date of separation. The award shall include gains and losses on the prorated portion of the benefit vested at the date of separation.”

Additionally, in North Carolina there are many calculations the court may use to determine the appropriate amount to award the non-employee spouse.  They may use the immediate offset, differed distribution, defined contribution, and/or defined benefit scheme to compute the amount that is marital. Each one is complex and more detailed facts are needed in order to tell which one should be used. Since each state is very specific in how they deal with property division, it is best to contact one of our attorneys who are licensed to practice in Pennsylvania to determine how Pennsylvania would see the future growth of the pension.

Be please advised that my answer does not constitute an attorney-client relationship.

 

Andrea Miller is a Staff Attorney in the Charlotte, N.C., office of Cordell & Cordell where she practices domestic relations exclusively. Ms. Miller is licensed in the state of North Carolina. Ms. Miller received her undergraduate degree in History and her Juris Doctor from the University of North Carolina at Chapel Hill.  While in law school, she on the Client Counseling Team for Moot Court and became a board member. Ms. Miller also participated in UNC’s Legal Assistance Clinic whereby she helped represent indigent clients obtain legal counsel primarily in the area of domestic relations.

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