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< Return to Tutorial List | Skip to Next Page > Pensions and Divorce Tutorial - Page 1 Junior Associate: Question? Maybe I jumped ahead a little. I have a very basic question. My parents both wonder why the benefits that they have worked for all of their lives are going to be split between them when they divorce? Senior Law Partner: Answer The answer to that question lies within the definition of what is considered to be property. Property has two basic attributes. The first being that it is certain and the second that it is transferable. Certainty, means that rights in property exist unconditionally in the present rather than rights that may possibly exist in the future. Transferability, means it can be given to another person on a permanent or temporary basis in return for consideration. There have been a lot of arguments that contend that a pension is not property and therefore not divisible. However, all of the state courts within the United States take the position that a pension is property (certain and transferable), and, therefore, divisible upon divorce. I'm sure your parents are wondering whether or not they will be forced to split all or just part of their pensions. The state courts are divided on this particular issue. There are two basic property models. The particular model which is followed for a specific divorce depends upon the attitudes of the state court which has jurisdiction over that divorce. Some states have adopted what is called the "all property model." Under this model, the court can divide any interest which constitutes property and is owned by one or both parties on the date the state considers the marriage to have ended (i.e. Divorce Date, Separation Date, Complaint Date, etc.) In other words, it doesn't matter when the property was acquired; whether it was before the marriage or during the marriage. Under this model, all property owned by your parents on the date their marriage ended will constitute marital property, and can be divided when your parents divorce. The other model is called the "dual classification model." This model is similar to the "all property model" in that in order to be divided in a divorce, the property must be owned by one or both parties on the date the marriage ended. However, the difference is that the property must have been acquired during the period of marriage. Therefore, under this model, only that portion of your parents pension benefits which were earned during the time they were married would be considered marital property subject to division in the divorce. Any portion of the pensions earned before your parents got married would be considered their separate property. Your parents live in a dual classification state. Therefore, any portion of their pensions earned prior to their marriage would be considered their separate property, and any portion of their pensions earned while they were married would be considered marital property.
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