First responders make a living serving our communities during unexpected events and understand the importance of being prepared.
When these brave men and women file for divorce, they can benefit from thinking ahead about how their assets will be divided, and what can be done to protect them.
Public Pensions & Property Division
Retirement benefits are one of the most significant types of assets in divorce. Like other marital assets, bank accounts, and even debt incurred during a marriage, retirement is subject to equitable distribution. This means splitting the retirement account in a fair and equitable manner, and which does not necessarily mean 50/50.
Although public retirement plans such as the Ohio Police and Fire Pension Fund (OP&F) enjoy many protections under Ohio Law – not being liable to garnishment, levy, or seizure under any legal or equitable process (Ohio Revised Code Section 742.47) – there are exceptions to the rule.
Divorce, child support, and spousal support are among those exceptions. However, this also does not mean a pension will be split down the middle. A former spouse of a police officer or firefighter eligible for OP&F benefits would only be entitled to a portion of the marital share of the pension. If the member spouse worked, earned income, and paid into the pension prior to marriage, those funds would be separate property and not subject to property division.
DPO: Dividing a Police & Fire Pension
Today, Ohio law allows for public pension plans like OP&F to be divided by in divorce through the use of a Division of Property Order (DOPO).
A court-issued DOPO orders OP&F to withhold a portion of a member spouse’s benefits and pay the withholding to their former spouse – even if the funds or benefits will not be collected until later in the future, such as when a person retires. In a DOPO:
- The pension member is the participant.
- The former spouse awarded benefits under a DOPO is the alternate payee.
A DOPO is different than a QRDO (Qualified Domestic Relations Order). It does not split pension accounts or create separate accounts for alternate payees, and does not allow for payments to be made at any time. Instead, it is a withholding paid when benefits become payable to the participant as detailed in the DOPO.
OP&F and other public pension plans are very particular about the form and language used in a DOPO. Even the slightest deviations can result in rejections and delays. As such, it is important that the DOPO format be followed and that all information provided is accurate. This includes information regarding:
- Type of Payment: The DOPO allows divorcing spouses to choose from a list of benefits to be withheld. If no benefits are selected, the DOPO will apply to the first benefit or lump sum payment received by the member. Spouses may also choose whether they wish to include a participant’s Deferred Retirement Option Plan (DROP) disbursements.
- Method of Payment: A DOPO provides for two methods of payment: a dollar sum or percentage. Only one method can be selected and both have their unique considerations. An attorney can help you determine which method of payment is most prudent in your particular case.
Options for Dividing an OP&F Pensions
OP&F has no say over whether a former spouse is entitled to a portion of a member’s pension; only the spouses, their attorneys, and the court can decide. This means there are various ways a Police and Fire Pension can be divided. For example:
- Spouses may decide on their own how pension benefits will be divided and submit their DOPO to the court for approval.
- If spouses cannot agree, the court may determine how pension benefits are divided based on the facts of the case.
- Spouses may choose not to divide the pension at all, but rather offset the value of its marital share by awarding other assets.
As noted, spouses have options when it comes to dividing OP&F benefits, and do not necessarily need to divide those benefits at all. An agreement where other assets are awarded in lieu of pension benefits can suffice, such as the family home or a lump sum payment. An experienced divorce attorney can help you explore your available options for protecting your rights and interests during property division negotiations.
Grossman Law Offices leverages decades of experience and the insight of Ohio State Bar Association Certified Specialists to guide clients through all aspects of the divorce process. If you have questions about dividing pensions in divorce, call or contact us online.