Compliance September 1, 2003

Court: Husband Can Divide Plan Benefits in Divorce

January 9, 2003 (PLANSPONSOR.com) - A lower-court judge was not off base when he ordered the husband in a divorce case to directly pay his wife her share of his account in a Colorado public pension fund, a Colorado appeals court ruled.

Reported by

Fred Schneyer

According to Washington-based publisher BNA, the Colorado Court of Appeals ruled that there was nothing in the law prohibiting an order forcing one spouse to pay benefits directly to another spouse even without an agreement between the parties.

The lower court ruled that the husband had to forward directly to his wife a portion of his benefits from his Public Employees’ Retirement Association (PERA) account. The state law controlling distribution of PERA accounts bars a court from ordering PERA itself to divide an account and distribute account benefits to anyone but the account holder upon divorce without an agreement between the parties, the BNA story reported.

Also, stressing that assets in PERA accounts must be included for purposes of calculating the total marital assets subject to division, the appeals court ruled that the divorce court properly treated the husband’s PERA benefits as any other pension benefit.

The court also rejected the husband’s claim that the divorce court’s order was inconsistent because it simultaneously utilized the present and future value of assets in ordering the deferred distribution of the PERA account.

The case is In re Tagen, Colo. Ct. App., No. 01CA0404, 12/19/02.