A black and white rule of Florida Law is that as the result of a divorce, each spouse is entitled to one half of any benefits which have accumulated during the marriage in any retirement, pension, or similar plan owed by the other spouse. Most often this division of assets is accomplished through a special court ordered call a Qualified Domestic Relations Order, or “QDRO.”
However, there are some plans which do not require a QDRO to separate out such an account. For instance, an IRA Rollover is usually able to be accomplished though other means, such as use of the original final judgment of dissolution of marriage with other required forms accompanying it. Also, U.S. Military retirement accounts are able to be separated via a Military Retired Pay Division Order, which is much less complicated than the average QDRO.
When problems arise is when you encounter a type of benefit plan that does not allow a QDRO or any other type of court order as a means of separating out funds a spouse is entitled to during divorce. One such benefit plan is the Police & Fire Pension Fund (“The Fund”) which is available to City of Jacksonville police and firemen, and should be available to their spouses upon divorce. The Fund does NOT recognize QDRO’s or any other type of Court Order to separate out benefits. The Fund DOES recognize Income Withholding Orders for the deduction of child support or alimony from this benefit plan. The important question then arises, how can you get access to your marital share of the Fund when you are entitled to that asset under the umbrella of Equitable Distribution, not child support or alimony?
Unless you can trust your spouse completely to always pay you your share of the benefits, upon retirement and every month after that (which is a rare quality for a former spouse to have), you need to ensure that your final judgment of dissolution of marriage takes this problem into consideration through careful language. My advice is to argue for language in your judgment that orders your spouse to pay you directly, but states that if your spouse fails to do so (perhaps becomes more than 30 days past due), then such payment will be re-labled permanent non-modifiable alimony and an Income Withholding Order shall be entered immediately for that purpose.
The Law Office of Summer R. Nichols is knowledgeable about all equitable distribution issues which can arise in a divorce, has drafted and had implemented hundreds of QDRO’s and similar court orders, and has handled specific cases regarding the Police and Fire Pension Fund. Call today for your free consult on these issues and more.
