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Does a Marital Settlement Agreement Override Florida Law Governing the “Cut-Off” Date for Classifying Marital Assets?


Under normal circumstances, Florida law imposes a “cut-off date” for classifying assets as marital or separate in a divorce case. That is, all assets acquired by either spouse after the cut-off date is not subject to equitable division by a judge. However, if the parties enter into a marital settlement agreement (MSA), they may agree to include assets that would otherwise be excluded as past the cut-off date.

Court Upholds MSA Granting Ex-Wife Half of Ex-Husband’s Total Pension Benefits

In a recent case, Suess v. Suess, the Florida Second District Court of Appeal reversed a trial judge who refused to enforce the terms of an MSA granting a former wife a share of her former husband’s entire pension. The former wife and former husband were married for nearly 30 years. The divorce itself was uncontested and the parties entered into an MSA, which was adopted by the trial court as part of the final judgment.

Of note here, the MSA stated the former wife would receive “50 percent of all retirement benefits from her husband.” She would also “remain the death beneficiary on each of these retirement accounts.”

On the surface this all appears rather straightforward. But after the former husband remarried in 2016, the parties disagreed as to the former husband’s continuing obligations under the MSA. The former wife returned to court and asked a judge to enter an order to “formalize the division” of the husband’s pension under the Florida Retirement System (FRS).

In response, the former husband argued the former wife was only entitled to 50 percent of the “retirement benefits that accrued during the marriage.” He also maintained that, notwithstanding the language of the MSA, the former wife was not entitled to remain as the death beneficiary on his pension as that would conflict with the Florida Retirement System Act.

Although the trial judge accepted the former husband’s arguments, the Second District did not. It held that while Florida law would normally limit the former wife to a portion of the former husband’s retirement benefits accrued during the marriage, the “clear and unambiguous” term of the MSA overruled that default. And the judge “erred in rewriting” the parties’ agreement to say otherwise.

Nor does the FRS prevent the ongoing designation of the former wife as the death beneficiary on the former husband’s pension. The former husband argued that the Act only permitted a current spouse to serve as beneficiary. Not so, the Second District held. The Act “expressly” permits “someone other than the member’s current spouse to be named the beneficiary of the member’s retirement account.” Indeed, Florida courts have previously upheld the designation of a former spouse as an FRS death beneficiary “even to the preclusion of a member’s current spouse.”

Speak with a Boca Raton Divorce Lawyer Today

Even when a divorce itself is relatively simple and uncontested, there may still be complex legal questions that arise after the settlement becomes final. If you need advice or legal assistance from a qualified Boca Raton divorce attorney, contact WiseLieberman, PLLC, at 561-488-7788 today to schedule a consultation.


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