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March 26, 2012

Equitable distribution of retirement benefits, military benefits, pensions, and other assets

Military retirement benefits are marital assets and subject to equitable distribution. Florida Statute 61.076. The exception is that military retirement benefits that are based on a disability are excluded from equitable distribution. Abernethy v. Fishkin, 699 So2d 235 (Fla 1997).

Disability pension and benefits are not marital assets, and are not subject to equitable distribution. See Hanks v. Hanks, 553 So2d 340 (Fla. 4th DCA 1989). The reason for this is because the benefits are personal to the employee; it represents compensation for injuries or lost wages sustained on the job.

Federal social security benefits are not divisible as marital assets upon a divorce. Johnson v. Johnson, 726 So2d 393 (Fla. 1st DCA 1999). Social security represents social insurance, and it is not considered a property interest under the law.

A portion of workers' compensation benefits and personal injury claims are marital assets. The portion of the award representing past lost wages, loss of earning capacity, and medical expenses is a marital asset. The portion of the award, which represents future lost wages, loss of earning capacity, and future medical expenses is the separate property of the spouse who was injured. See the case of Weisfeld v. Weisfeld, 545 So2d 1341 (Fla. 1989) for a more detailed analysis of this particular subject.

pile of money desktop.jpgUnvested or contingent options are also marital assets. Florida law is replete with cases on this subject matter. These assets were created by marital labor that are capable of valuation and distribution in the event that monies are realized in the future upon the sale of the options.