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Court ordered to recalculate division of pension

March 19, 2012

The Indiana Court of Appeals has ordered the lower court to take another look at the division of a husband’s pension, finding the court used the wrong number in its decision.

In Robert Hardin v. Carlotta Hardin, No. 18A05-1105-DR-301, Robert and Carlotta Hardin were married, divorced, and then remarried in 1993. Robert Hardin retired in 2000 from General Motors. The pair separated in June 2010. The trial court awarded Carlotta Hardin $317 a month from Robert Hardin’s pension. The court based the number in part on the 17 years the two were married.

But the trial court should have used seven years as the applicable figure since Robert Hardin stopped accruing in 2000, 10 years before they separated, the COA held. The trial court’s order results in Carlotta Hardin receiving more than three times the amount the trial court intended she receive, wrote Chief Judge Margret Robb. The appellate court remanded for the trial court to recalculate the husband’s and wife’s portions of the combined monthly benefits.

The judges upheld the award of the entire survivor’s benefit to Carlotta Hardin, but found the trial court erred in determining that the cost of the survivor’s benefit is included in amount payable.

“By deducting the cost of the survivor’s benefit before the applying the coverture fraction, Wife is not paying the entire cost of the survivor’s benefit. Rather, Wife’s payment of the cost of the survivor’s benefit must be taken out of her share after the trial court uses the coverture fraction to determine Wife’s share of the monthly payments,” she wrote.

This issue was also remanded for the trial court to re-divide the pension consistent with the opinion.

 

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