Illinois Divorce Law...

Illinois Law - What is the "Marital Portion" of a Defined Benefit Pension Plan?

The marital portion of the pension plan is: the number of years married and employed, divided by the total number of years working until retirement.

Pension benefits acquired after the separation but before decree of divorce are presumed to be "marital property." They could be separate property if acquired after a judgment of separation, or if agreed by the parties, or in the less likely situation that the benefit is acquired by gift or inheritance.

Section 5/503(b)(2)

Cases:

Blackston (1994) 196 Ill.Dec. 606, 258 Ill.App.3d 401, 630 N.E.2d 541 (In calculating the marital portion of benefits, it is customary to use one of two approaches. Either 1) current salary and a fraction "years employed during marriage / total years worked to date;" or 2) final (higher) salary and a fraction "years employed during marriage / total years worked to retirement." That is, either 1) a higher fraction of a lower number; or 2) a lower fraction of a higher number. In this case, the trial judge had used the second approach, which uses a salary figure that includes raises earned after the divorce. The husband claimed that it was unfair to include the higher salary. The appeals court said that, if the trial court wanted to do this, it had to justify the approach (for example, by arguing that the earlier years were more important to the plan's value). The court, however, found that this would not provide a sufficient basis to increase the wife's portion of the husband's future benefits. The husband was awarded a portion of the wife's pension, and the wife was awarded half the marital portion of the husband's portion. The parties had been married for 24 years. At the time of the divorce the husband was 48 years old and his salary was $66,000.

Parker (1993) 192 Ill.Dec. 277, 252 Ill.App.3d 1015, 625 N.E.2d 237 (The court said that the entire pension was marital property, even though the husband had worked for three years before the marriage. The court noted that the trial judge had roughly offset the husband's right in the first three years' pension by allowing him to keep all of the first two years of pension benefits, without sharing them with his wife. There was also an issue about an apartment complex, where the husband had lived with another woman for 16 years before the divorce. The husband had used marital funds in purchasing a one-half interest in an apartment complex. The other woman had owned the other half. The husband's half of the building and its appreciation in value were marital property. Before the trial, the other woman had died, and she had willed her share of the building to the husband. He had received it as a legacy (not as a surviving joint tenant). Thus, this other share, from the woman, was not marital property, and the husband could keep it. At the time of the proceedings the property was free of mortgages was appraised at $230,000. The wife was awarded half of the husband's current one-half interest or $58,000. The parties had been married for 28 years and had two children who were adults at the time of the divorce.)

Clabault (1993) 188 Ill.Dec. 799, 249 Ill.App.3d 641, 619 N.E.2d 163 (The formula for the marital portion of pension benefits has to match the appropriate pension benefit amount with the appropriate years of service. For example, a court could use either: 1) (# years married / # years employed to date) * pension benefit based on years-to-date; or 2) (# years married / # years employed to retirement) * pension benefit based on years-to-retirement. This result makes sense, though it is not entirely clear, in this often muddy area, that this is what the court was saying. The lower court had employed neither approach, apparently making a computational mistake, and the appeals court in this case said that the lower court's approach was definitely not acceptable. Other aspects this case: The parties were married for 22 years and had three children. The wife was awarded custody of the two remaining minor children in their sophomore and senior years of high school. At the time of the divorce the husband was 46 years old and the wife was 50. The husband was earning $83,000 a year and was ordered to pay $13,000 a year in child support and $11,000 in spousal maintenance. Although the child support was $700 below the statutory minimum, the husband was paying for college expenses for the children, providing health insurance, and maintaining a $300,000 life insurance policy for their benefit. After spending the majority of the marriage as homemaker, the wife was currently unemployed and in therapy for severe depression. She had been terminated as a teacher after her poor performance during the year she was getting divorced, despite an outpouring of support from the parents of her students. The marital home with equity of $124,000 was ordered to be sold with 60% of the proceeds going to the wife and 40% to the husband. The court was also justified in its award of a dependency tax exemption for the year preceding the divorce to the husband where the husband was found to have supported the child more than 51%.)

Email this page on to a friend.

Disclaimer: We are not giving legal advice. No warranties. We disclaim all legal liability. More...

Click here to go to top Illinois divorce law page.

Click here for the Illinois divorce legal table of contents.