L AW
EQUITABLY DISTRIBUTING
MUNICIPAL PENSIONS
By K. Dean Kantaras and Jennifer H. Cavill
IN ANY DIVORCE PROCEEDING, THE
Court is required to distribute between
the parties all marital assets and marital
liabilities in a way the Court deems equitable
under the circumstances. See
Florida Statute §61.075 for more details.
Marital assets include “all vested and
nonvested benefits, rights, and funds
accrued during the marriage in retirement,
pension, profit-sharing, annuity,
deferred compensation, and insurance
plans and programs” Florida Statute
§61.075(6)(a)d. In order to accomplish the
division of a party’s retirement plan, such
as a 401(k), the court typically enters a
Qualified Domestic Relations Order
(QDRO). “A QDRO is a type of domestic
relations order that creates or recognizes
an alternate payee's right to, or assigns to
an alternate payee the right to, a portion
of the benefits payable with respect to a
participant under a plan.” Boggs v.
Boggs, 520 U.S. 833, 846 (1997). In other
words, QDROs force direct payment of a
portion of the participant spouse’s retirement
benefits to a nonparticipating
spouse. In some cases, a retirement plan
cannot be divided between the parties
without a QDRO being entered by the
Court, such as with a 401(k). In other
cases, a QDRO is not necessary since the
division of Individual Retirement Accounts
do not require QDROs. However, not all
pension plans are subject to QDROs and
may not be distributed pursuant a QDRO
even though one has been entered.
Specifically, courts cannot equitably
distribute municipal pensions via QDRO.
Therefore, a pension with the City, Police
Department, or Fire Department, for
example, will not be distributed between
the parties through a QDRO. This does
not mean that the municipal pension
should not be considered a marital asset
in equitable distribution. In fact, failure to
include an existing marital pension in
equitable distribution is an error and will
result in the equitable distribution being
reversed if challenged on appeal. See
by a trustee, the court may require the
participant to pay a bond into the court to
ensure the nonparticipant spouse receives
his or her share of the municipal pension,
the court may award the nonparticipant
spouse assets from another source to
compensate him or her for their interest
in the municipal pension, or the court may
enter an alimony award to compensate
for not receiving his or her interest in the
municipal pension. See Rumler v. Rumler,
932 So. 2d 1165, 1167 (Fla. 2nd DCA 2006);
citing Bd. of Trs. of Orlando Police Pension
Plan v. Langford, 833 So.2d 230, 235 (Fla.
5th DCA 2002). For more information on
how your interest in a retirement benefit
is impacted in a divorce, contact K. Dean
Kantaras, P.A.
9
EDITOR’S NOTE: K. Dean Kantaras has
been licensed to practice law in Florida for over
nineteen years. Mr. Kantaras is the managing
partner of K. Dean Kantaras, P.A., a firm
handling cases in family law and immigration.
Mr. Kantaras is board certified in marital and
family law by the Florida Bar, a distinction
held by less than one percent of all attorneys
licensed to practice in Florida. He is “A” rated
by Martindale-Hubbell, the highest possible
rating. He is a member of the Supreme Court
of the United States, the United States Court
of Appeals for the 11th Circuit and Middle
District, The Florida Bar, and the Clearwater
Bar Association. His offices are located at 3531
Alternate 19, Palm Harbor, 34683, (727) 781-0000
and 1930 East Bay Drive, Largo, 33771,
(727) 544-0000. www.Kantaraslaw.com.
Jennifer Cavill, Esq. is an Associate Attorney
at the firm. She is a member of the Florida
Bar, the United States District Court-Middle
District of Florida, Clearwater Bar and
St. Petersburg Bar Associations and Canakaris
Inn of Court.
K. Dean Kantaras, Esq.
Essex v. Essex, 649 So.2d 293 (Fla. 3rd DCA
1995). Instead, the Court must consider
the municipal pension in equitable distribution,
but must determine other means
to give the nonparticipant spouse the benefit
of his or her interest in the municipal pension.
This is because this type of pension and
Florida Statute §185.25 make the municipal
pension unassignable to others unless the
payment is for alimony or child support.
See Bd. of Trs. of Orlando Police Pension
Plan v. Langford, 833 So.2d 230, 233-234
(Fla. 5th DCA 2002) and Florida Statute
§185.25.
The Court in Rumler v. Rumler, 932 So.
2d 1165, 1167 (Fla. 2nd DCA 2006) and Bd.
of Trs. of Orlando Police Pension Plan v.
Langford, 833 So.2d 230, 235 (Fla. 5th DCA
2002) addressed the problem of protecting
the nonparticipant spouse’s interest in
a municipal pension for equitable distribution
purposes and suggested that the
court may require pension funds be paid
into a trust account to be paid to the parties
JULY/AUGUST 2015 TAMPA BAY MAGAZINE 141