Attorney Christopher A. Pearsall

Sometimes Rhode Island divorce lawyers aren't able to provide "definite" answers to legal questions, including pension issues.

This is one of those frequent instances.

The answer is, "It all depends."

If either party in a Rhode Island divorce has a pension then there are various issues you will want to consider.  Specifically, the divorce issue we want to address here is that of "vesting." 

You can find out if your pension is vested for the purposes of your Rhode Island divorce by contacting the administrator of your pension fund and simply asking if your pension if your pension is vested or not.  You also may want to asked your pension administrator when your pension will vest (become vested) just in case the date might occur during the course of your Rhode Island Divorce proceeding.

ISSUE

The Rhode Island family court judge only has the power to order the equitable distribution of marital assets, including pensions. 

If you or your spouse has a pension that is not vested, what part of the pension, if any, is subject to the Rhode Island family court's power of equitable distribution?

If you or your spouse has a pension that is vested, what part of the pension, if any, is subject to the Rhode Island family court's power of equitable distribution?

ANSWERS

The only part of a vested or unvested pension that is subject to equitable distribution/division by the Rhode Island Family Court Judge is the "marital portion" of the pension.

The marital portion of any pension is dependent upon various circumstances, including (1) the length of the marriage, (2) the type of pension (civilian or military) and the laws governing it, and (3) whether the pension is vested or not.

While it may be the Rhode Island family court judge's role to determine after trial what the marital portion of the pension may be, it is the job of each spouse and his or her divorce lawyer to present to the court what part of the pension is the marital portion.  Sometimes your divorce lawyer may be able to argue that a larger portion of the pension is actually the "marital portion" if it is to your benefit to do so.  However, if there is disagreement between spouses and/or their divorce lawyers regarding the true manner in which the marital portion should be calculated, proof may be presented at trial.

Proof of the marital portion of the pension that is subject to distribution by the Rhode Island family court may require expert testimony by way of an actuary who substantiates the basis for claim and the amount of it.  Without this information, your Rhode Island divorce judge may not have sufficient information for determining the basis, amount or validity of your claim on that pension.

The issue of whether a pension is vested or not is of substantial benefit to both spouses, the court and an actuarial expert if one is necessary. 

If the pension has not vested at the time of the entry of the Final Judgment of divorce, then the pension payments themselves are not subject to distribution in the future.  Since the pension is not vested then the body (corpus) of the pension is only made up of the contributions made to the pension.  There is no entitlement to the benefits of the pension after it vests simply because a spouse may have an entitlement to a portion of the monetary contributions to the pension.

If the pension is vested prior to the entry of the Rhode Island Family Court's Final Judgment of Divorce, then the benefits of the pension itself provided by the "vesting" of the pension during the marriage are subject to distribution of the Rhode Island family court.

Thus, the family court's distribution power in Rhode island in a divorce proceeding is limited to either (1) the financial contributions made to the pension when it has not vested prior to the entry of Final Judgment of Divorce, or (2) the benefits provided by the pension when it has vested prior to the entry of Final Judgment.

§ 15-5-16.1  Assignment of property is the statute that governs the treatment of gifts in a divorce proceeding.  This is, of course, subject to case law that interprets the statute and other legal principles that may be argued alongside the gift statute.

The statute states in pertinent part,

§ 15-5-16.1  Assignment of property. -

(b)  . . . The court shall not assign property or an interest in property which has been transferred to one of the parties by gift from a third party before, during, or after the term of the marriage.

This is an interesting statute to note. . . . among many others . . . yet consider this interesting affect on this Rhode Island statute when supported by case law.

EXAMPLE

During their marriage John is given a player piano by his friend Celia.  The piano works great and has several piano rolls that come with it that play perfectly with various holiday songs.  John is not all that technically inclined but his wife Genna becomes familiar with the piano and knows how to carefully change the rolls.  The piano is an antique and is in good shape.

John consults with his wife Genna and they decide to put the player piano in the livingroom.  John and Genna are married for 15 years and every year the piano became the center piece of each holiday and family gathering.  Genna changed the player rolls, decorated the piano for each holiday and family gathering, cleaned the piano and arranged for it to be tuned each year.  John paid for the tuning.

John and Genna are getting divorced in Rhode Island.  The piano is appraised at $35,000.   John claims that the piano was a gift and Genna is not entitled to any portion of it.  Genna argues that the piano lost its quality as a "gift" and came within the marital estate when John commingled it in the family gatherings and holidays and allowed Genna to assume the maintenance of it.  Once the player piano became such a primary focal point of the family and was maintained by Genna, it became a marital asset and came under the power of the court.

What do you think?  Should the commingling with the family and maintenance by Genna bring the player piano within the Rhode Island Family Court's power as being able to distribute the marital estate? 

If this statute about gifts exists and case law exists that states that commingling a non-marital item within the marital estate and the Rhode Island Judge's power of equitable distribution, which rule governs?  The statute or the case law?

Many Rhode Island Divorce Lawyers and parties within the divorces believe that things such as "gifts" are "simple", but are they really?