(Or why you really need a lawyer if you are dividing retirement benefits)
The rock musician Meat Loaf, in his 1977 hit “Paradise by the Dashboard Light,” makes 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 be enforced if it is included in a hastily-worded divorce settlement agreement. In a recent case, the Florida Court of Appeals ruled that the parties’ marital settlement agreement entitled the wife to 50 percent of the husband’s past, present and future retirement benefits. The “future” part is what is really unusual. Here is a link to the court’s decision:
Suess v. Suess, 2D18-2521, Opinion filed December 20, 2019
Typically, the date that a Petition for Dissolution of Marriage is filed with the court is the cut-off date for the accumulation of marital assets and debts. Under normal circumstances, retirement benefits accumulated after a divorce would be the sole asset of the party who earned them. This would be written into any settlement agreement prepared by an attorney or ordered by a judge.
In this rock star example, if the parties in the case Suess v. Suess had decided to litigate and the case had gone to trial on a contested basis, a judge would not have been able to award the wife any share of the husband’s future retirement benefits. If the parties had pursued an out-of-court settlement with attorneys, the husband’s attorney would have looked out for his client’s interest.
The twist here, just like in the song, is the parties did not consider the long term ramifications of a poorly-worded agreement. Although a judge cannot award future retirement benefits to a spouse, Florida law allows a divorcing couple to agree to terms in a Marital Settlement Agreement (MSA) that are outside what a court can actually order. Although the judge has some limitations as to what they can order, the MSA drawn up between the parties has fewer restrictions and more free range.
It does not appear that the parties in the Suess divorce 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. They may have used internet forms or a document preparation service during their settlement process, instead of hiring attorneys.
I cannot recommend using online, generic divorce forms downloaded from the internet, or assigning one of the biggest decisions you will ever make to a document preparation service. Generic forms do not address your specific circumstances and document preparation services do not include any legal assistance or advice. These low cost options can lead to very expensive mistakes.
Here is the wording the parties used:
“Wife will receive 50 percent of all retirement benefits from husband . . . .” (Parenthetical omitted).
The Florida Appellate Court found that the wording of the parties’ agreement was unambiguous and clear on its face. In legalize, that means the words they chose to include in their settlement were clear. The husband is stuck with a very literal interpretation of the agreed-upon settlement.
If I were drafting the agreement, I would use very precise language that would take several paragraphs. However, the insertion of just two words may have been enough for the Court of Appeals to rule in the husband’s favor:
“Wife will receive 50 percent of the marital portion of all retirement benefits.”
Be careful of the commitments you make in writing during the divorce process and hire an attorney to help with all legal proceedings. Yes, you will have to pay your attorney. But at least you won’t be left with mistakes that leave you paying until the end of time.