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< Return to Tutorial List | Skip to Next Page > Pensions and Divorce Tutorial - Page 2 Junior Associate: Question? Both my parents participated in their pension plans before they were married. Therefore, the portion of each of their pensions that was earned prior to their marriage would be considered their own separate property (Not Divisible) and the other part, that was earned during the marriage, would be considered marital property (Divisible). Is that correct? Senior Law Partner: Answer Yes, that is right. But it is still more complicated. Under your mother's defined contribution plan, any growth on her separate property, that portion of her pension that was earned prior to the marriage, could be considered her separate property or it could be considered marital property. Each dual classification state model looks at this issue differently. Some states hold that any growth on the separate property which occurred during the marriage would be considered marital property. Others states say that any growth on the separate property which occurred during the marriage would be considered separate property. This is also true for your father's defined benefit plan. The only difference being that your father's plan does not grow in value unless he continues working, while your mothers' continues to grow even if she stops working. Junior Associate: Question? How do we determine which part of these pensions is marital property and which part is separate property? Senior Law Partner: Answer For your father's defined benefit plan, this is usually accomplished by applying what is called a coverture fraction to the monthly benefit your father has acquired for his years of employment up to the date their marriage ended. The coverture fraction is a tool that is used by pension appraisers to determine the portion of a pension which should be considered marital property as compared to that portion which should be considered separate property. The numerator of this fraction represents the period of time that your father participated in his plan during the marriage ( from the Date of Marriage to the Date the Marriage Ended) while the denominator represents the total period of time that he participated in the plan (from the Date of Plan Participation to the Date the Marriage Ended). As an example. Let's say that your father worked for 5 years prior to getting married and for 10 years while they were married, for a total of 15 years up until the date their marriage ended. The coverture fraction would be 33% (rounded). He would have 10 working years while married divided by the total 15 working years, resulting in a coverture fraction of 33%. This is called coverturing by time.
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