You are here: Home » Blog » Family Law » Division of Retirement Benefits in an Alabama Divorce – When and How Much

Division of Retirement Benefits in an Alabama Divorce – When and How Much

by William L. Pfeifer, Jr. on September 15, 2011

in Family Law

The division of retirement benefits in an Alabama divorce action can be a complicated issue in some situations, and often becomes the subject of appellate litigation in the Alabama Court of Civil Appeals. While appellate courts attempt to affirm trial court rulings when possible, they will reverse trial court rulings on the division of retirement benefits when the the trial court abuses its discretion or does not follow the law. An example of a situation where a trial court was reversed on this issue can be seen in a recent case handled by our office, which you can read about here.

Alabama law provides certain standards that must be followed by a trial judge in deciding whether the retirement benefits should be divided and if so, how much is an appropriate alimony award. Alabama Code § 30-2-51(b)(1975) states:

(b) The judge, at his or her discretion, may include in the estate of either spouse the present value of any future or current retirement benefits, that a spouse may have a vested interest in or may be receiving on the date the action for divorce is filed, provided that the following conditions are met:

(1) The parties have been married for a period of 10 years during which the retirement was being accumulated.

(2) The court shall not include in the estate the value of any retirement benefits acquired prior to the marriage including any interest or appreciation of the benefits.

(3) The total amount of the retirement benefits payable to the non-covered spouse shall not exceed 50 percent of the retirement benefits that may be considered by the court.

The Alabama Court of Civil Appeals has repeatedly reversed trial court rulings for awarding amounts in excess of the statutory limit of 50% of retirement benefits, most recently in the Kreitzberg case appealed by our office. Similar rulings were issued in the cases of Tompkins v. Tompkins, 843 So. 2d 759 (Ala. Civ. App. 2002), Webb v. Webb, 950 So. 2d 322 (Ala. Civ. App. 2006), and many other cases.

Note the following points about Alabama Code § 30-2-51(b)(1975):

  1. An award of a portion of the current or future retirement benefits is discretionary with the trial court, not mandatory;
  2. The parties must have been married for at least ten years before a spouse is entitled to assert a claim for a division of retirement benefits;
  3. The spouse seeking a claim to the other party’s retirement benefits can only assert a claim to those retirement benefits accrued during the course of the marriage, not to benefits accrued before the marriage;
  4. If a portion of retirement benefits are awarded as alimony, the award cannot exceed fifty percent of the retirement benefits.
If you are going through a divorce and believe the trial court has not ruled appropriately on how retirement benefits should be divided in your case, feel free to contact our office to discuss  your rights on appeal.
Alabama State Bar rules require the following disclaimer in all attorney advertisements: “No representation is made that the quality of legal services to be performed is greater than the quality of services provided by other attorneys.”
Enhanced by Zemanta

Previous post:

Next post: