Understanding Pensions and Divorce in Arizona

Learn About the Division of a Pension in an Arizona Divorce from Our Arizona Licensed Attorney Chris Hildebrand of Hildebrand Law, PC.

U.S. News and World Report Best Divorce and Family Law Firms in ArizonaHow Pensions Are Divided in a Divorce in Arizona

If you are going through a divorce and one of the spouses has a pension, you may be wondering when and how you will receive your community property share of that pension and even how your interest in that pension will be calculated.

Pensions and divorce in Arizona present many complicated issues. A 401(k) or IRA are easier to divide because you will know the exact value of those retirement accounts and can calculate the community property portion of those accounts.

Either a particular order is issued by the court directing the company managing the retirement account to move a portion of the retirement account into a separate retirement account in the spouse’s name.

Or, the plan administrator may be able to simply do a rollover whereby the amount is rolled out of the existing account into a new retirement account.

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Pensions, however, are different than a traditional 401(k) or IRA.

A pension provides the recipient for receiving a series of monthly payments for either a fixed period or during the life of the employee after reaching a certain age.

When dealing with pensions and divorce in Arizona, you should know that many pensions also have what is referred to as a Survivor Benefit Election, which decreases the amount of the pension payments, but guarantees the non-employee spouse will continue to receive the pension benefit even after the employee spouse dies.

The employee spouse in a divorce, typically, does not want to be forced into choosing what will soon be his or her former spouse because it decreases the total overall pension payment.

The non-employee spouse typically wants the Survivor Benefit Election to ensure his or her share of the pension does not automatically terminate upon the death of his or her soon to be former spouse.

The Case of Boncoskey v. Boncoskey on Pensions in an Arizona Divorce

The Arizona Court of Appeals in the Boncoskey v. Boncoskey case provides valuable insight into how trial courts are required to divide pensions in an Arizona divorce case.

The court distinguished between vested (a.k.a. matured) rights and nonvested pension rights.

A pension is matured if the person is presently entitled to retire and begin receiving pension payment.

A pension is nonvested if the person is not currently entitled to a pension, but may be entitled to pension payments in the future.

Timothy and Laura Boncoskey went through a divorce in Arizona.

Timothy accumulated some time in his employer’s pension system, but he had not yet worked enough years to be entitled to retire or receive pension payments.

Timothy and Laura reached an agreement resolving almost all of the issues in their case.

They disagreed, however, on how the special order needed to divide Timothy’s pension should be worded.

The court ultimately concluded, over Timothy’s objections, that Timothy would have to make payments to Laura when first becomes eligible to retire even if Timothy continues to work past that age and is not, therefore, actually receiving pension payments.

Those payments were deemed to be spousal maintenance and would end when Timothy retires at which time each spouse would receive their community property share of the total pension.

Pensions and Divorce in Arizona.

The court also ordered Timothy to choose the Survivor Benefit Election over Timothy’s objection.

Timothy appealed the trial court’s orders.

The Arizona Court of Appeals found the trial judge made several errors and reversed the trial court.

The judge subsequently signed the analysis from the Arizona Court of Appeals started by addressing Laura’s argument Timothy did not file his Notice of Appeal in time; alleging Timothy had to submit a Notice of Appeal within thirty days from the date their Divorce Decree was entered and not after the Domestic Relations Order.

A party is required to file a Notice of Appeal within thirty days the trial court issued a final appealable order.

The Arizona Court of Appeals found the Domestic Relations Order issued after the Decree of Dissolution of Marriage has issued the final appealable Order issued by the trial court and, therefore, concluded Timothy’s time to file his Notice of Appeal began to run with the Domestic Relations Order was issued.

The Ruling on Dividing Pensions in a Divorce

The Court of Appeals referred to a prior Arizona Supreme Court case of Van Loan v. Van Loan, which held that a pension that is not vested and, therefore, may not necessarily result in a spouse receiving pension payments, such as if they leave employment before becoming vested in the pension plan.

The spouses still constitute community property and are subject to division in a divorce of the potential right to receive those payments.

The next question the court of appeals addressed was whether Laura had a right to receive the equivalent of what her pension payments would be when Timothy first becomes eligible to receive pension payments, but he elects to continue working; thereby delaying either spouse from receiving pension payments for many years into the future.

The court made an important distinction on this point.

Specifically, the court distinguished between spouses going through a divorce when one of the spouses has already vested in his or her pension and, therefore, has an immediate right to receive pension payments but chooses to delay retirement from spouses going through a divorce and the vesting of one of the spouse’s pension will not occur for years to come.

In the first case, the Arizona Court of Appeals reaffirmed the Arizona Supreme Court’s ruling in the prior Koelsch v. Koelsch case.

In Koelsch, the Arizona Supreme Court faced a situation wherein one of the spouses was fully vested and eligible to receive pension payments at or about the same time the parties were getting divorced.

Pensions and Divorce.

In Koelsch, the Arizona Supreme Court concluded the court had no authority to order that spouse to retire but did indicate the court could order that spouse to begin making monthly payments in the same amount she would have received from the pension if her spouse retired.

The Arizona Court of Appeals in Boncoskey, however, distinguished that case from the case at hand because the spouse was not vested at or about the time the parties were divorced.

The Arizona Court of Appeals in Boncoskey held that in such a situation the trial court cannot order a spouse to begin making payments to the other spouse when they become eligible to retire if he or she continues working.

In such a case, the other spouse simply has to wait until the other spouse chooses to retire to receive her or her share of the pension.

The Arizona Court of Appeals affirmed the prior Arizona Supreme Court ruling in Johnson v. Johnson that held the preferred method for dividing the community property interest is to perform a present value of the expected stream of income and order the spouse who will be eligible to receive the pension to pay the other spouse in a lump sum payment for his or her interest in the pension and then award 100% of the pension to the employee spouse.

That solution was not available in this case because the parties had already equally divided all of their other community assets.

The Arizona Court of Appeals, therefore, deferred to use the “reserved jurisdiction” method announced in the Johnson case wherein you divide the total number of months the employee works for the company by the number of years the parties were married during those years to determine the community property interest in a pension in an Arizona divorce case.

Division of Retirement Accounts in a Divorce.

The justices also said a trial court has no authority to order a spouse to begin making payments to the other spouse simply because he or she continues working and, therefore, delays both parties’ community share of the pension.

The court of appeals also rejected the trial court’s decision to order Timothy to begin paying Laura for the payments she would have received if Timothy retired when he was first eligible to retire.

The trial court’s decision was overturned because, although a court is not bound by the terms of the parties’ settlement agreement, the court is required to hold an evidentiary hearing before issuing orders changing the provisions of the parties’ written settlement agreement.

Lastly, the Arizona Court of Appeals rejected the trial court’s order requiring Timothy to choose the Survivor Benefit election for Laura’s benefit because there is no authority granting the trial court to issue such an order, it would entitle Laura to receive the additional pension benefits Husband would accumulate in the future, and it would prevent Timothy from making such an election for the benefit of any future wife he may marry.

The take away from this case is that dividing pensions can be very complicated.

If you need information about pensions and divorce in Arizona, you should seriously consider contacting the attorneys at Hildebrand Law, PC. Our Arizona divorce attorneys have over 100 years of combined experience successfully representing clients in divorce cases in Arizona.

Our family law firm has earned numerous awards such as US News and World Reports Best Arizona Family Law Firm, US News and World Report Best Divorce Attorneys, “Best of the Valley” by Arizona Foothills readers, and “Best Arizona Divorce Law Firms” by North Scottsdale Magazine.

Call us today at (480)305-8300 or reach out to us through our appointment scheduling form to schedule your personalized consultation and turn your Arizona divorce case around today.

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Chris Hildebrand

Chris Hildebrand

Chris Hildebrand wrote the information on this page about pensions and divorce in Arizona to ensure everyone has access to information about divorce laws in Arizona. Chris is a family law attorney at Hildebrand Law, PC. He has over 24 years of Arizona family law experience and has received multiple awards, including US News and World Report “Top Arizona Divorce Attorneys”, Phoenix Magazine “Top Divorce Law Firms”, and Arizona Foothills Magazine “Best of the Valley” award. He believes the policies and procedures he uses to get his clients through a divorce should all be guided by the principles of honesty, integrity, and actually caring about what his clients are going through.