So now I’m praying for the end of time

Or, why you really need a lawyer if you are dividing a retirement account.

The title to this post is credited to the artist Meat Loaf, in his song “Paradise by the Dashboard Light.” In that song, a young man make a promise to love his girlfriend “until the end of time.” If you know anything about the song, you know that it was a poorly made promise.  

Unfortunately, a poorly worded promise will also be enforced as part of divorce settlement agreement. In a recent case, the Court of Appeals ruled that the parties’ agreement entitled the wife to 50% of husband’s past, present, and future retirement benefits. The “future” part is what is really unusual. If you would like to read the Court’s decision it is here:

Suess v. Suess, 2D18-2521, Opinion filed December 20, 2019

Typically, the date a Petition for Dissolution of marriage is filed is the cut off date for the accumulation of marital assets and debts. So under normal circumstances, the accumulation of retirement benefits in the future would not be divided. In fact, if this case had gone to trial on a contested basis, a judge would not have had the power to award the wife a share of retirement benefits earned by husband in the future.  

However, in Florida a divorcing couple may agree to terms in a marital settlement agreement that a court could not order if the case was tried on a contested basis. And that is exactly what happened in this case. The parties were not represented at the time they entered into their agreement. It is not clear from reading the case how the parties came up with the wording they used. In my experience, people getting divorced without the assistance of lawyers will often use a form they found online, or will use a non-attorney document preparation service. Regardless, the appellate court found that the wording of the parties’ agreement was unambiguous and clear on its face. In legalize, that means husband is stuck with a very literal interpretation of the martial settlement agreement.

To put a fine point on it, here is the wording the parties used:

“Wife will receive 50% of all retirement benefits from husband . . . .” (Parenthetical omitted).

If I were drafting the agreement, I would use very precise language, that would take several paragraphs. However, the insertion of a two words, may have been enough for the Court of Appeals to rule in husband’s favor:

“Wife will receive 50% of the marital portion of all retirement benefits.”

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