March 2015 : Overview of the Division of Retirement Benefits in Divorce – Part 1

Michigan Family Law Journal : TAX TRENDS AND DEVELOPMENTS Feature

by Joseph W. Cunningham, JD, CPA

Excerpt:

Introduction

1. Under Michigan law, every judgment of divorce (JOD) must provide for the rights of the parties to both vested and unvested pensions, annuities, and retirement benefits. MCL 552.101(4)
   1. Vested benefits must be taken into account in property settlements. MCL 552.18.
   2. Unvested benefits may be considered “where just and equitable.” MCL 552.18
2. Age of specialization
   1. Certainly applicable to handling retirement benefits in divorce.
   2. Many traps for the unwary
3. As with taxation, the key is awareness of issues
   1. Obtain necessary knowledge or assistance
   2. Better serves clients and avoids unpleasant surprises down the road

Defined Benefit (DB) Plans

1. DB Plans – Traditional pensions – Monthly payment for life often based on (1) final average compensation, (2) years of service, and (3) plan formula.
   1. E.g., $3,500 a month for life.
   2. Many units of government and large employers – such as the “Big 3 Automakers” – have DB plans.
   3. But, the trend is definitely to defined contribution (DC) – or, “account balance” plans, such as 401(k) plans.
2. Division of interests in DB plans is achieved via (1) offset method or (2) deferred division.
   1. Offset method involves (1) determining the present value of the pension and (2) awarding the other party property equal value. E.g., The after-tax, present value of W’s pension is $50,000. H shall receive $50,000 of other property as an offset.
   2. Deferred division refers to actually splitting the marital portion of the pension between the parties pursuant to a Qualified Domestic Relations Order. E.g., H and W will equally share his $4,000/month pension by means of assignment of half of his share to W pursuant to a QDRO.
3. Offset method – Valuation
   1. Many professionals calculate the present value of a pension by using the discount rates published and updated monthly by the Pension Benefit Guaranty Corporation (PBGC).
      1. The PBGC, a federal government agency, uses the rates for the same purpose–that is, to determine the present value of future pension payments.
      2. The updated monthly rates can be accessed at the PBGC website (www.pbgc.gov) by clicking on “Practitioners.”
   2. Generally, it is appropriate to reduce the present value of the pension by the tax rate to which it will be subject when it becomes payable after retirement.
      1. Rationale – The pension cannot be used in any beneficial way until received, at which time it is taxable.
      2. The federal and state tax rates used to “tax affect” retirement benefits are those projected to apply after retirement.
      3. Because of the certainty of taxation, case law supports valuing retirement interests net of future tax. Nalevayko v Nalevayko, 198 Mich App 163, 497 NW2d 533 (1993)
   3. In some cases, there may not be sufficient other property suitable to award the other party as an offset.
4. Deferred division method – QDROs/EDROs
   ……
   

Complete Michigan Family Law Journal available at: Michigan Bar website – Family Law Section (subscription required)