Dividing Pensions

Examiner.com has posted an article by a Virginia attorney that rightly criticizes the Virginia family court system for its inconsistent and sometimes downright unjust treatment of family law litigants in general, but particularly military personnel. Without addressing the accuracy of his specific claims, because I have no way to verify his allegations, I wish to comment on the family law concepts that the article brings to light.

1) The author claims that Virginia forces military personnel to split their pensions with their spouses even after the end of a short-term marriage. In Oregon and other equitable distribution states, of which Virginia is one, a short-term marriage of less than 10 years’ time would compel a court to award each party what he or she brought into the marriage plus an equal share of what was accumulated by both parties during the marriage. Those calculi are not absolute, but they represent general principles. The degree to which people have become financially intertwined, and thus one is more dependent on the other than he or she otherwise would be, determines the amount of the more well-off spouse’s assets, if any, that the court may tap in equity to meet the self-sufficiency needs of the receiving spouse.

2) The author goes on to allege that Virginia courts order the pensioner to surrender half of his or her pension at the earliest possible retirement date, even if the pensioner does not retire. I would propose several alternatives, and I encourage these approaches in my mediation office. One option is to divide the pension as of the date of the dissolution, with the payoff beginning at age 62 or 65, with interest that has accrued between the dissolution and the age at which the Husband and the Wife have agreed. The second option is to do the above but to divide the pension as of the date of the pensioner’s retirement, which avoids the untenable circumstance of the pensioner being required to make monthly payments that their military salary cannot support.