This article was originally posted on the Family Law Section webpage. To get news like this delivered to your inbox, customize your news subscriptions at indybar.org/account!
The Indiana Court of Appeals in In Re The Marriage of Carr ruled that the survivor benefit that may go to a spouse in a dissolution of marriage is an asset for the purposes of property division and must be included in the marital pot.
In this case, Husband had been in the military for 14 years prior to the parties’ marriage but his pension did not vest until after the marriage. Husband also had a pension from a private employer. The parties agreed after the dissolution was filed that Husband would elect to allow Wife to have a survivor benefit in his military pension. The court applied the coverture fraction in determining the percentage split of the pensions. Wife contended that since Husband had not vested until the parties were married, the entire military pension should be included in the calculation. The trial court found that in order for the pension to exist the husband had to have served those 14 years before the marriage and, therefore, it did include the time served before vesting.
Wife then argued that the survivor benefit should not be considered a marital asset as it depended upon her surviving her husband. The court rejected this argument and found that while Indiana followed that line of reason previously to exclude any pension from the marital pot, that this reasoning no longer was accepted. Dan Andrews testified to the value of the survivor benefit as well as the other pension benefits and the Court of Appeals found that the trial court erred by excluding that value of the survivor benefit from the calculations of the distribution and marital pot.
While fewer employers offer defined benefit pensions (as opposed to defined contribution plans such as 401K, 403B) they still exist, many times in large private employers and public employers such as the military. Parties and their lawyers should be aware of the survivor benefit and its effect on the distribution. Also, the party who earned the pension should consider another point made by the Indiana Court of Appeals that when you elect a survivor benefit, generally it reduces the benefit of the employee who earned the pension.•