Karen Ann Ulmer, P.C.
Legal & Mediation Services
“Calming the Chaos, Creating Solutions”
Call for a Confidential Consultation
866-567-9029 or 215-752-6200
Practice Areas
Watch our Video

Division of Pensions in Divorce

Pensions, as well as other retirement plans, are often one of the assets up for division in a divorce. The court will equitably divide the marital portion of a pension plan after considering all the relevant factors in equitable distribution. The marital portion of a plan would be the portion that accrued from the date of marriage through the date of separation. In some cases, the entire pension will be marital depending on the timing of the marriage alongside the start date of the pension plan.

The Superior Court recently released a decision regarding the marital status of post-separation cost of living adjustments (COLAs). In MacDougall v. MacDougall, 2012 PA Super 83, the Superior Court held that Husband's post-separation COLAs were marital property subject to equitable distribution because they accrued without any effort or contribution by Husband. Wife had filed a Petition for Contempt after discovering that Husband's monthly pension benefit had continued to increase due to COLAs but he was still only paying her a percentage of the monthly benefit from the date of separation. The trial court ruled in favor of the Husband in finding the post-separation COLAs were not marital, however, the Superior Court reversed their decision.

In reaching its decision, the Superior Court analyzed several previous decisions regarding post-separation increases in pension plans. Most notably, in Berrington v. Berrington, 534 Pa. 393 (1993), the Pennsylvania Supreme Court held that increases in a pension plan due to the employee spouse's own efforts or contributions are not marital whereas increases not attributable to the employee spouse are marital. In MacDougall, the Superior Court determined the increases based on COLAs were automatic and not dependent on any additional effort or contribution by Husband, thus the COLAs were marital and subject to division. Therefore, the Superior Court held Wife's share of Husband's pension should also increase to reflect the COLAs. The case was remanded to the trial court in order for exact calculations to be made as far as Wife's share of the pension with the COLAs included. This approach is arguably more fair in that it doesn't allow one spouse to benefit from an increase that wasn't earned and that the parties likely did not know about at the time of equitable distribution.

No Comments

Leave a comment
Comment Information
  • Avvo Rating
  • 10.0 Superb
  • 2014 top 100 lawyers ASLA
  • Overall Client Rating in Family Law - 4.8 out of 5.0

Office Locations

Langhorne Office
174 Middletown Boulevard
Suite 300
Langhorne, PA 19047

Phone: 215-752-6200
Fax: 215-752-6202
Langhorne Law Office Map

Doylestown Office
44 East Court Street
Doylestown, PA 18901

Phone: 215-348-3800
Fax: 215-752-6202
Doylestown Law Office Map

Norristown Office
516 DeKalb Street
2nd Floor
Norristown, PA 19401

Phone: 215-752-6200
Fax: 215-752-6202
Map & Directions