Will a wife be entitled to receive a portion of her husband’s Virginia Retirement System pension beyond her portion of the marital share of the Educational Employees Supplemental Retirement System identified in the separation and property settlement agreement?

Will a wife be entitled to receive a portion of her husband’s Virginia Retirement System pension beyond her portion of the marital share of the Educational Employees Supplemental Retirement System identified in the separation and property settlement agreement?

Not in Roth v. Roth, Record No. 1332-10-4, where the Virginia Court of Appeals upheld the trial court’s decision that the pension payments were limited, and ex-wife could only receive those benefits that were originally contemplated by the parties in the agreement.

According to the Separation and Property Settlement Agreement, the parties agreed that wife would receive a monetary award from husband’s pension benefits in the Educational Employees Supplemental Retirement System. The agreement stipulated that the sum would equal forty percent of each payment or disbursement received, multiplied by a fraction representing the marital share, i.e., the numerator being the number of years the parties were married and the denominator being the total number of years of county employment. Furthermore, the agreement stated that it would serve as the authorization to the Virginia Supplemental Retirement System (the administrator of the pension benefits for the Fairfax County School Board) that wife should receive her share of the benefits upon payment of the pension plan.

After the parties submitted the agreed Qualified Domestic Relations Order (QDRO) naming wife as an alternate payee of husband’s pension interests, counsel for the Educational Employees Supplemental Retirement System (ERFC) of Fairfax County objected, insisting that the under the then-controlling Virginia Code provisions (§51-112 and §51-127), wife could not directly receive payments. However, these Virginia Code sections were later changed, and the applicable provisions under Title 51, section 51-127.1 were deleted.

As a result of the change in the Virginia Code, the Virginia circuit court judge entered an Amended Qualified Domestic Relations Order providing for wife’s interest payment in the Educational Employees Supplemental Retirement System (ERFC) on July 8, 1997. Furthermore, she would directly receive payments, in accordance with Va. Code §20-107.3 (G)(1). Effective July 1, 1999, she would receive payments representing forty percent interest in the marital share of Mr. Roth’s benefits under the ERFC. On June 30, 1999 Mr. Roth retired, and since retirement he has received benefits from the Virginia Retirement System instead of the ERFC due to his employment through the Fairfax Board of Educational.

In this case, Mrs. Roth argues that she should receive a fractional interest in Mr. Roth retirement as a result of his employment with the Fairfax Educational Board and the participation in the Virginia Retirement System. In determining this question, the Court noted the words of the General Assembly, stating, “Legislation which effects a change in the amount of the retirement benefit other than a post-retirement supplement shall be construed to effect only the benefits of those persons who qualify for retirement allowance on or after the effective date of the legislation.” Va. Code §51.1-124.8.

Mrs. Roth alleged that, even though the Virginia Retirement System was not in existence at the time the parties created their separation agreement, she should receive a portion of these payments because they constituted “retirement benefits through his employment.” Her counsel alleged that the word “including” in the agreement was a term of enlargement, thereby conveying other benefits not specifically enumerated. See Nextel WIP Lease Corp. v. Saunders, 276 Va. 509, 517, 666 SE2d 317 (2008).

The Court, however, rejected this argument, holding that the retirement benefits were an identifiable property interest rather than a mere expectancy. Furthermore, the Court held it was the existence of the retirement pension resulting from Mr. Roth’s employment that the parties specifically contemplated in the Agreement and nothing beyond those payments. Therefore, because the testimony supported the conclusion that the parties only contemplated those specific payments, the Court held that Mrs. Roth would only be entitled to receive pension benefits from his employment, not those upon his retirement.

You should consult with your Virginia divorce lawyer concerning your rights in your spouse’s retirement plans.

 

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