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Dividing Pension & Retirement Benefits in Ohio Divorce – Part 1

dividing_retirement

In the first installment of what is planned to be a series on dividing retirement / pension benefits during a divorce settlement, we look briefly at the common questions of dividing retirement and pension plans between spouses.  The parties’ retirement benefits is an important consideration when equitably dividing marital property, because, like the marital residence, retirement benefits are often the largest asset or assets of the parties. Therefore, dividing these plans or funds becomes enormously important.  So, let’s now address some common questions.

Is my retirement / pension considered marital property?

As the intro gave away: yes.  Just as with any other asset of value that is acquired during the marriage, generally, retirement benefits accrued during the marriage are considered to be  “marital assets” and must be divided equally between the parties.  If a spouse is working during the marriage and this results in the accrual of retirement benefits, the law sees it as if the non-working spouse contributed equally to the creation of those benefits.

This frequently makes it difficult for a court to carry out its statutory mandate of dividing all marital property equally.  Technically, the non-working spouse is entitled to at least a portion of the employed-spouse’s pension fund (as marital property), but the money may not be easily accessible at the time of divorce.  Because courts like to maximize the value of all retirement and pension funds, it is normally preferable to avoid causing the withdrawal of the accrued monies, and leave the fund growing in the name of the working spouse.   Fees, penalties and taxes can often destroy a pension that is withdrawn when it is not fully matured.  But, the problem is that sometimes there simply isn’t other marital property to award to the other (non-earning) spouse at the time of the divorce that will adequately compensate that spouse for his or her rightful portion of a retirement fund.  For this reason, valuing and dividing retirement benefits should be one of the first issues contemplated by a divorcing party.

Is it true that my spouse is entitled to half of my pension?

No. Not always.  Only the portion of the retirement fund that was contributed to or earned during the marriage is considered “marital property” and subject to division between the parties.  The portion of the retirement fund that was earned by the working spouse while unmarried is considered that party’s separate property and the other spouse has no interest in that money. Therefore, the first step is to determine what portion of the retirement fund is marital and what portion is separate property.

How do you value the portion of the retirement fund that is considered “marital”?

In determining the portion of a pension or retirement plan that is considered a “marital asset” and subject to division between the parties, the court should calculate the ratio of the number of years the employed-spouse worked during the marriage to the total number of years he or she worked at the qualifying employment to earn the pension.  Only the portion of the pension that was earned during the marriage is a marital asset, and the spouse of the employee is only entitled to a proportionate share of the marital asset.

Example – Employed spouse works 25 years to earn a vested pension of $100,000.  10 of these years were worked during the marriage. This equates to a 40% ratio, and only $40,000 of the pension is a martial asset. Because the division of marital property always begins with an equal division, the non-employed spouse would typically be entitled to $20,000 in this scenario.

Now, assuming the court doesn’t want to destroy the fund if it would be better for the employed spouse to contribute for 30 years, you see where it could be difficult to off-set this amount with other marital property? How many couples have $20,000 (in liquid form, moreover) lying around to award the other spouse his or her fair share of this fund at the point of divorce?

Are Social Security Benefits Divided?

No.  Not directly, anyway. Social security retirement benefits are not considered marital assets to be divided when a couple divorces.  A court cannot distribute a portion of one spouse’s SS benefits to the other spouse directly.  However, the court does consider the SS benefits when making an equitable division of retirement benefits overall – See Smith v. Smith (1993, Franklin Co) 632 N.E.2d 555 (“while not divisible as a marital asset, SS benefits must be considered when equitably dividing pension benefits”).

Are State and federal retirement plans treated differently?

Yes. The law related to state and federal retirement plans will be the subject of a later post.  There are specific rules that govern certain public-forms of pensions, such as military pensions, State pension plans (e.g., PERS) and deferred compensation plans.  Those forms of retirement benefits are impacted by specific federal and state statutes that must be consulted where applicable.

Brought to you by the Miami Valley Ohio law offices of Morrison & Nicholson.  Call today to schedule a consultation (937) 432 – 9775.

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Can the Child choose which Parent they want to live with in Ohio?

It is one of the most common myths that people maintain when it comes to child custody: Once a child reaches a certain age, that child can choose which parent to live with, right? Well, that is actually incorrect. However, this myth is based in history and actually grounded is truth. Under former Ohio law, once a child attained the age of 12 years old,child_support_ohio_termination that child had the power to choose which parent was to be deemed the residential parent and legal custodian of that child. However, under current Ohio law, minor children no longer have the ability to choose which parent they want to live with on a permanent basis. In other words, when the Court issues its final divorce decree which, among other things, allocates parental rights and responsibilities, it is not the child that determines which parent is to be the residential parent, even if that child is a teenager. Ohio law treats a 14 year old in the same manner as a 4 year old when it comes to determining which parent with be designated as the residential parent. And, like almost all issues involving minor children, the determination is guided by what is in the “best interest of the child”.

So, divorcing parents, remember that your child will not be choosing for or against you when it comes to custody issues. Rather, the Court will decide and you need to focus your energy on convincing the Court that it would be in the best interest of the child to live with you … do not work on convincing the child that he or she should choose you. Which, in truth, is not fair to the child anyway.

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Dayton Ohio Office: Social Security disability attorneys




The Law Offices of John T. Nicholson’s Dayton office is located at 5540 Far Hills Ave., Dayton, Ohio 45429. Please check in with receptionist upon arrival. If you have questions regarding a potential legal matter, such as a claim for disability benefits or workers compensation, please call us at 937-432-9775.

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Dayton Ohio Disability Attorney 39.666641, -84.161802

 

Ohio Office Locations:

 

 Dayton * Cincinnati * Columbus * FranklinPiqua *

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All other states call 1-800-596-1533

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Senate Committee Reveals Trouble with the Quality of Disability ALJ Decisions

Senate Committee Reveals Trouble with the Quality of ALJ Decisions

A recent article in the Washington Times discussed the increasing stress that the Social Security Disability system is operating under and how that stress has led to troubling problems affecting millions of Americans.

Investigators working for a Senate subcommittee examined hundreds of cases in which disability benefits were approved and found that those making the decisions frequently ignored warning signs such as incomplete or inconsistent information. Senators have said this review demonstrates the need for an overhaul of the existing system. One Senator said that the decisions from some administrative law judges (ALJs) were so bad that the final verdict seemed almost entirely arbitrary.

Though the first phase of this investigation involved looking over applications that were approved but should not have been, the Senate committee says it will next turn its attention to those cases that were denied and may have been denied wrongfully. Those in charge say they worry that they will discover the system is not helping many of the people it was designed to protect.

For its part, the Social Security Administration says it has work to do to fix problems in the system. However, they claim that outlier decisions occur far less often than they used to and the decisions of many ALJs are affirmed with much more regularity then ever before.

That may sound good, but problems still abound. The massive report showcased one ALJ from Oklahoma who has issued more than 1,000 decisions each year since 2006. Judge W. Howard O’Bryan Jr. peaked in 2008 with 1,846 decisions and regularly approved 90 percent or more of the claims. This compares to an average ALJ approval rate of about 60 percent. The investigation revealed that his decisions were notable only for their “poor quality” and how Judge O’Bryan often regurgitated the same boilerplate language in each case decision.

One case that apparently prompted the investigation, involved a man living as an adult “baby,” meaning he slept in an adult-sized crib and wore diapers. The man was collecting disability benefits despite having demonstrated carpentry skills and his ability to work with a reality TV show and a website for other adult “babies.”

The case of the adult “baby” highlighted another problem according to the Senate subcommittee and that is how out of date the list of jobs given to ALJs are. The list has not been updated since the 1970s and excludes many computer-related jobs that some people (possibly other adult “babies”) with disabilities might be able to perform.

If you think you may be entitled to Social Security Disability benefits and have questions, call The Law Offices of John T. Nicholson at 1-800-596-1533 for a free consultation today.

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Dayton, Ohio Social Security office among the slowest in the country

Dayton, Ohio Social Security office among the slowest in the country

clockAccording to a recent article in the Dayton Daily News, Ohio Senator Sherrod Brown’s state director met with officials from the Social Security Administration to discuss an enormous backlog of appeals for disability benefits.

The paper previously reported that the Social Security Administration’s Dayton hearing office has been ranked the second slowest in the country for the past two fiscal years. The speed relates to the office’s ability to process appeals for disability benefits. The office says it is working to reduce wait times, but Senator Brown says the action has not been sufficient. Those in the SSA are hoping that wait times continue to drop thanks to increasingly prevalent use of electronic medical records and a recently introduced video-hearing option.

Unfortunately, most applications are denied, but some choose to appeal their cases and it’s these people who have suffered due to the lengthy wait times in Dayton. Last year in Ohio some 21,511 people filed appeals for benefits, including 2,188 at the Dayton office.

In 2011, the average wait time for a decision in an appeal at the Dayton office was an astounding 491 days. This compares to a much shorter national average of 345 days. In 2011, only the office in Buffalo, New York was slower than Dayton’s. In 2010 the bottom two rungs were occupied by Dayton and another nearby Ohio city notorious for slow processing: Columbus, Ohio. That year the average wait time in Dayton came in at a whopping 596 days.

The Senator pointed out how important such hearings are, given that many are suffering terrible disabilities and need an answer quickly about whether they can begin receiving benefits. Slow processing times present a special hardship for those who lack income for necessities such as medication and health care. This can mean that some applicants fall even deeper into poverty or become even more disabled than they already were. Tragically, the Wall Street Journal recently discussed how since 2005 some 15,000 people have died while waiting for an administrative law judge to rule on their appeals.

If you think you may be entitled to Social Security Disability benefits and have questions, call The Law Offices of John T. Nicholson at 1-800-596-1533 for a free consultation today.

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