Time and time again, I see agreements that call for the use of the Majauskas case to split up retirement plans (pensions) . Little if anything else is said beyond mentioning the case. All too often the reason why nothing else is said is that few lawyers know or understand the rights and obligations spouses have to each other’s retirement benefits. What the Majauskas case does direct is the use of a coverture fraction to determine the marital portion of a participants retirement benefit. The top part of the fraction (the numerator) represents the retirement benefit rights acquired during the marriage and the bottom part of the fraction (the denumerator) represents the entire retirement benefit acquired by the participant. Except in rare instances, the courts will split the marital portion equally.
That is where most of the agreements I see end. The problem is, however, that there are many more rights that a non-participant may have to the participant’s retirement benefits and the courts routinely find that, unless specifically laid out in an agreement, are waived. These rights may include pre-retirement death benefits, post retirement improvements to retirement benefits such as cost of living adjustments or early retirement incentives. They also may include post retirement death benefits such as survivorship options. One must also be clear as to when retirement benefits become available to the non-participant. Sometimes the participant is already in pay status and if one is not careful, the non participant may not see any benefit for years until the court orders them to start receiving their share through an order called a Qualified Domestic Relations Order. These orders are usually not drafted or signed by a Judge until well after the Judgment of Divorce was entered. Most lawyers also do not know the difference between a shared retirement benefit and a separate retirement benefit. Nor do many lawyers remember to specify who pays the costs of survivorship options and who pays for costs of drafting the qualified domestic relations orders. A scrupulous lawyer will be able to specify these provisions in their agreements to maximize their client’s interests. Make sure your lawyer can answer these difficult questions before you even think to retain them and place your valuable retirement benefits at risk.