All retirement benefits that accrued from the date you say I do until the date one of the spouses filed for divorce is a marital asset. If you had a retirement account prior to marriage, you need to contact your HR department or your plan and ask them to calculate the marital portion of your account giving them the date of marriage and date of filing a petition for divorce. You will also likely need what’s called a summary plan description. It is always advisable, if possible, to divide your marital assets so that the retirement accounts to not have to be divided. This is done by giving one party another asset of equal value. if this is not possible and the retirement account must be split, 401K’s will require a Qualified Domestic relations order. Most family law attorney refer the preparation of these order to specialized attorneys that do only this. Often your plan will provide a sample. You should always ask. Providing a sample QDRO to the attorney can save you both time and money. You will also want to know if you have spousal benefits for your spouse and whether they can be changed or not. Often defined benefit plans where a spousal share has been elected, that election is irrevocable. That portion for your spouse, which usually results in a lower monthly defined benefit must be calculated into the equitable distribution scheme. It is always a good idea to include language in the settlement agreement or request the Judge to put language in place that makes alimony payment until the plan actually pays out and incase the plan cannot be split, or goes broke in the future. Likewise if one party waives entitlement to his or her share of the other’s pension in lieu of alimony payments, there should be language that if the payer spouse default, the payee spouse can go back and claim their share of the retirement benefits.

For example, in the case of  CATHERINE EBERHART v. DENNIS EBERHART, 238 So. 3d 428 (Fla. 1st DCA) 2018 The parties entered into a consent Judgment,which contained a provision that the Wife would make undifferentiated support in exchange for the husband’s waiver of entitlement his share of her Navy Pension unless the wife failed to make the undifferentiated payments. The wife stopped making the payments and the DCA ruled that the husband was entitled to one-half of all retirement benefits the wife accumulated from date of marriage until date of final judgment when her undifferentiated support payments stopped with the caveat that if the wife stopped accruing benefits when she retired, then the marital portion was set at that time, even if the marriage lasted beyond that point.

Full opinion follows:

(PER CURIAM.) This case requires us to interpret imprecise language in a consent final judgment. Our review is de novo. See Toussaint v. Toussaint, 107 So. 3d 474, 477 (Fla. 1st DCA 2013). Because the trial court’s interpretation was wrong, we reverse.

Catherine Eberhart served in the United States Navy for nearly twenty-one years. She had already served about ten years when she married Dennis Eberhart in 1993. She retired in 2004, and she divorced eight years later. Through their consent divorce judgment, the parties agreed that CatherineEberhart would pay “undifferentiated support,” and Dennis Eberhart would waive (temporarily, at least) any entitlement to a share of his wife’s Navy pension.

The judgment also had a provision, though, saying if the undifferentiated support ended, the court could award Dennis Eberhart “a one-half share of the marital portion” of Catherine Eberhart’s pension. And it parenthetically defined the “marital portion” to mean “the date of marriage to the date of this Final Judgment” — the language central to this appeal.

The parties agree that the undifferentiated support ended, and they seem to agree Dennis Eberhart is entitled to “a one-half share of the marital portion” of the pension. The only dispute is about what to make of the parenthetical definition. In other words, what is the “marital portion” of which Dennis Eberhart deserves “a one-half share”?

The marital portion of any retirement plan is the portion accumulated during the marriage. See Horton v. Horton, 62 So. 3d 689, 691 (Fla. 2d DCA 2011). The parenthetical’s language is consistent with this general rule. The marital portion includes all retirement benefits Catherine Eberhartaccumulated during the marriage — or, said another way, all retirement benefits Catherine Eberhartaccumulated from “the date of marriage to the date of [the] Final Judgment.” If she stopped accruing benefits when she retired in 2004, then that is when the marital portion was set, even if the marriage lasted years longer.

The parties could have, of course, agreed to other terms. They could have defined “marital portion” to mean something other than what it usually means. But the language at issue here does not show that the Eberharts did that. The language does not indicate they intended the court to determine the “marital portion” by looking to anything other than (i) the retirement benefits accumulated while the parties were married and (ii) the retirement benefits accumulated while the parties were not married.


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Beth Wolt

Elizabeth (Beth) Wolt is an AV rated marital and family law attorney. She runs a boutique law firm catering to a select group of clients taking on a low number of cases so she can devote individulaized attention during this difficult transition. Identified…

Elizabeth (Beth) Wolt is an AV rated marital and family law attorney. She runs a boutique law firm catering to a select group of clients taking on a low number of cases so she can devote individulaized attention during this difficult transition. Identified as one of the Best and Brightest college Students by USA Today in 1994. Featured in a cover article on May 8, 1997 of the Wall Street Journal. Graduated Magna Cum Laude from Undergraduate School- University of South Florida with a BA in Psychology 1994. Graduated Cum Laude from University of Miami School of Law- JD.1997. Named to the list of “Top Lawyers in Florida” by the Legal Network 2013, 2014, & 2015. AV rated by Martindale Hubbel in both ethics and ability. Rated “Excellent” by AVVO Featured in the American Lawyer December 2014