Florida/Georgia Personal Injury & Workers Compensation

...the statute "effectively eliminates the holding of Summers. " It is not clear in Hennessey, however, whether the marital dissolution proceeding therein was instituted before the effective date of section 61.075. Moreover, Hennessey did not refer to Section 61.076(1), Florida Statutes (Supp....

...GRIFFIN and THOMPSON, JJ., concur. NOTES [1] It appears the parties had been filing separate tax returns. [2] See Brotman v. Brotman, 528 So.2d 550 (Fla. 4th DCA 1988); Rosenfeld v. Rosenfeld, 597 So.2d 835 (Fla. 3d DCA 1992); § 61.075(5)(a), Fla.Stat. (1995). [3] § 61.076, Fla.Stat....

...vested retirement plan is not to include any contributions made after the original judgment of dissolution. We believe that this gives effect to the statutory definition of marital assets in section 61.075(5)(a), Florida Statutes (1993), [3] and to section 61.076(1), Florida Statutes (1993)....

...[3] Section 61.075(5)(a), Florida Statutes (1993), provides in relevant part that marital assets and liabilities include: 1. Assets acquired and liabilities incurred during the marriage, individually by either spouse or jointly by them. (Emphasis added.) [4] Section 61.076(1), Florida Statutes (1993), regarding the distribution of retirement plans provides: All vested and nonvested benefits, rights, and funds accrued during the marriage in retirement, pension, profit-sharing, annuity, deferred compensati...

...See § 61.075(5)(a)(4), Fla. Stat. (2003) (defining "marital assets" to include "[a]ll vested and nonvested benefits, rights, and funds accrued during the marriage in retirement, pension, profit-sharing, annuity, deferred compensation, and insurance plans and programs"); § 61.076(1), Fla....

...which the pensioner can make alimony payments. In any event, the majority and the district court correctly note that Diffenderfer's holding on this point is immaterial in light of the subsequently enacted equitable-distribution and alimony statutes. Section 61.076(1) clearly provides that "[a]ll vested and nonvested benefits, rights, and funds accrued during the marriage in retirement, pension, profit-sharing, annuity, deferred compensation, and insurance plans and programs are marital assets subject to equitable distribution." § 61.076(1), Fla....

...1987), for an explanation of the shifting burdens of proof involved when one spouse contests the validity of a separation agreement on the ground that the agreement was unreasonable. [2] See Diffenderfer v. Diffenderfer, 491 So.2d 265 (Fla. 1986). The Diffenderfer rule has now been codified in the Florida Statutes. See § 61.076, Fla....

...He therefore would not receive any federal social security benefits in the future as the result of his job with the Department. The trial court in the instant case treated the Husband's Social Security Replacement Plan as a marital asset subject to equitable distribution pursuant to section 61.076(1), Florida Statutes (1997)....

...1 ( quoting Flemming v. Nestor, 363 U.S. 603, 609, 80 S.Ct. 1367, 4 L.Ed.2d 1435 (1960)). Similarly, we believe that substitute pension plans such as the one in issue, are not so similar to federal social security benefits as to render them exempt from the provisions of section 61.076(1), Florida Statutes. We therefore hold that pension plans, such as the Social Security Replacement Plan at issue and similar plans which purport to substitute for federal social security, are marital assets and should be distributed pursuant to section 61.076(1), Florida Statutes....

...[5] In sum, we REVERSE and REMAND for a re-determination of an equitable distribution of the marital assets, utilizing the concept of present value of the Husband's police pension plan. We AFFIRM the judgment of the trial court in all other respects. MINER, J. and McDONALD, PARKER L., Senior Judge, CONCUR. NOTES [1] Section 61.076(1), Florida Statutes (1997), provides: (1) All vested and non-vested benefits, rights, and funds accrued during the marriage in retirement, pension, profit-sharing, annuity, deferred compensation, and insurance plans and programs are marital assets subject to equitable distribution....

...the interplay between the Pension Plan's statutory anti-alienation provision (Section 8 of the 1937 legislation) and the more recently passed legislation in Chapters 61 and 222, Florida Statutes. This Court expressly concludes that Sections 61.075, 61.076, and 222.21, Florida Statutes, implicitly repealed Section 8 of Chapter 18610 (1937), Special Acts of the Legislature of the State of Florida (the City's pension anti-alienation provision) at least to the extent so as to permit the spouse of t...

...In response, Anna concedes that government pension plans are exempt from the federal law in which the QDRO was created. However, she insists that the trial court correctly concluded that the anti-alienation clause contained in the City's Pension Plan was repealed by implication by the subsequent passage of sections 61.075, 61.076 and 222.21, Florida Statutes....

...intent to do so. E.g., Jackson v. Consolidated Government, City of Jacksonville, 225 So.2d 497 (Fla. 1969). Anna argues that the anti-alienation clause of the City's Pension Plan was impliedly repealed by the subsequent adoption of sections 61.075, 61.076 and 222.21, Florida Statutes....

...istribution. It says nothing about whether the trial court may require that payment of any portion of such an interest *1015 equitably distributed to the non-participant spouse be made by the retirement or pension plan to the non-participant spouse. Section 61.076 reiterates that all interests in retirement or pension plans (whether vested or not) which accrued during the marriage are marital assets subject to equitable distribution....

...(Federal law expressly authorizes payment to one former spouse of alimony and child support, and of sums intended as a division of property, from the other former spouse's military pension, when ordered by a court. 10 U.S.C. § 1408. The provisions of section 61.076(2) and (3) are intended merely to assure that trial court orders include the information required by federal law.) We find nothing in either statute to manifest a clear legislative intent to repeal the anti-alienation clause of the City's Pension Plan....

...The trial court erred by failing to account in any way for the wife's pension plan in the equitable distribution scheme. The pension plan was a marital asset because it resulted from the wife's employment with Maxwell House Coffee for over 18 years during the marriage. Section 61.076(1), Florida Statutes (1995), provides: All vested and non-vested benefits, rights, and funds accrued during the marriage in retirement, pension, profit-sharing, annuity, deferred compensation and insurance plans and programs are marital assets subject to equitable distribution....

...uity, deferred compensation, and insurance plans and programs." Such vested and nonvested benefits, rights, and funds accrued during the marriage in retirement and other such plans and programs "are marital assets subject to equitable distribution." § 61.076(1), Fla....

...they were income, rather than an asset. Not so with the payments arriving after the husband reaches age 62.[ [2] ] The right to receive those payments in the future is the very definition of a retirement plan, subject to equitable distribution under section 61.076(1)....

...Diffenderfer, 491 So.2d 265, 270 (Fla.1986)); see also § 61.075(5)(a)(4), Fla. Stat. (2003) (defining "marital assets" to include "[a]ll vested and nonvested benefits, rights, and funds accrued during the marriage in retirement, pension, profit-sharing, annuity, deferred compensation, and insurance plans and programs"); § 61.076(1) ("All vested and nonvested benefits, rights, and funds accrued during the marriage in retirement, pension, profit-sharing, annuity, deferred compensation, and insurance plans and programs are marital assets subject to equitable distribution."); Reyher v....

...For these reasons, we agree with the Husband that there was no competent, substantial evidence in the record supporting the trial court's conclusion that the post-65 disability benefits were retirement benefits subject to equitable distribution under section 61.076(1)....

...Diffenderfer, 491 So.2d 265, 270 (Fla.1986)); see also § 61.075(5)(a)(4), Fla. Stat. (2003) (defining "marital assets" to include "[a]ll vested and nonvested benefits, rights, and funds accrued during the marriage in retirement, pension, profit-sharing, annuity, deferred compensation, and insurance plans and programs"); § 61.076(1) ("All vested and nonvested benefits, rights, and funds accrued during the marriage in retirement, pension, profit-sharing, annuity, deferred compensation, and insurance plans and programs are marital assets subject to equitable distribution."); Reyher v....

...ribution, and as we conclude that the trial court shall reconsider an award of permanent periodic alimony and the partial award of attorney's fees, we reverse and remand for further proceedings. The trial judge declared in his order that pursuant to section 61.076, Florida Statutes (1993), the former husband's military retirement plan was not considered a marital asset because the parties were not married for at least ten years while he was a member of the federal uniformed services....

...He further declared that the pension sums received may be used for support or alimony payments, but declined to award rehabilitative or permanent periodic alimony to the former wife. However, an award of $2,000.00 in lump sum alimony was provided to her. Section 61.076(1), Florida Statutes (1993), clearly provides that the pension plan is a marital asset subject to equitable distribution. See Johnson v. Johnson, 602 So.2d 1348 (Fla. 2d DCA 1992). Section 61.076(2), Florida Statutes (1993), requires certain information in the final judgment with respect to an equitable distribution of a military pension, but it has no effect on the wife's entitlement to equitable distribution....

...of the retirement fund be paid directly to him, the circuit court had not done so as of the date of the filing of the petition. The debtor claimed his interest in the retirement fund as exempt pursuant to Fla. Stat. § 121.131. The court found that § 61.076 [4] of the Florida Statutes created an exception to the prohibition against assignment set forth in § 121.31 and that the debtor was a person with accrued benefits under the Florida Retirement system by virtue of the circuit court order....

...The Court held that the debtor's interest in his ex-spouse's retirement was exempt from his creditors pursuant to § 121.131. The First District Court of Appeal has rejected the argument that an anti-alienation clause contained in a municipal pension plan was repealed by implication by the subsequent passage of § 61.076....

...Board of Trustees of Orlando Police Pension Plan, 838 So.2d 558 (Fla.2003). Additionally, the Florida legislature has not accepted the Vizcaino court's invitation to address the issue. Respectfully disagreeing with the decision in Cason and reluctantly following the decision in Vizcaino, the Court concludes that § 61.076 does not make an exception to the prohibition against assignment set forth in § 122.15....

...ed not make a specific determination as to whether Read is a creditor of Debtor. [3] ERISA is the acronym for Employee Retirement Income Security Act, legislation passed in 1974 to protect the interests of participants in employee benefit plans. [4] Section 61.076 provides in pertinent part Distribution of retirement plans upon dissolution of marriage (1) All vested and nonvested benefits, rights, and funds accrued during the marriage in retirement, pension, profit-sharing, annuity, deferred com...

...marital property. The Florida Legislature has provided that "[a]ll vested and nonvested benefits, rights, and funds accrued during the marriage in retirement [and] pension ... plans and programs are marital assets subject to equitable distribution." § 61.076(1), Fla....

...count from "all claims of creditors" does not shield IRA assets from a court order to pay Chapter 61 obligations. Chapter 61 demonstrates the intent to pour IRA accounts into the family pot for division or to meet obligations imposed by the chapter. Section 61.076(1), Florida Statutes (1995), declares "all ......

...not have been made. See also Geddes v. Geddes, 530 So.2d 1011 (Fla. 4th DCA 1988). Both parties have tried to collect the debt and have failed. Therefore, on remand, I would instruct the trial court to divide the debt between the parties. NOTES [1] § 61.076, Fla....

...See § 61.075(6)(a)l.d., Fla. Stat. (2011) (defining marital assets to include “[a]ll vested and nonvested benefits, rights, and funds accrued during the marriage in retirement, pension, profit-sharing, annuity, deferred compensation, and insurance plans and programs”); § 61.076(1), Fla....

Husband’s contention that the award was improper. Section 61.076(1), Florida Statutes, states, “[a]ll vested

...1986), the Florida Supreme Court held that “a spouse’s entitlement to pension or retirement benefits must be considered a marital asset for purposes of equitably distributing marital property.” Following Diffenderfer, the legislature enacted section 61.076, Florida Statutes, which governs the distribution of retirement plans upon dissolution of marriage. See Ch. 88-98, Laws of Fla. (1988). Section 61.076(1), Florida Statutes (2015), provides: “All vested and nonvested benefits, rights, and funds accrued during the marriage in retirement, pension, profit-sharing, annuity, deferred compensation, and insurance plans and programs are mar...

...member’s total service credit earned. § 121.101(4), Fla. Stat. (2015). 5  The former husband’s entitlement to a COLA was a vested benefit under Chapter 121 that accrued during the marriage. Under section 61.076(1), the former wife is entitled to equitable distribution of her share of the COLA benefit. The Amended QDRO effectively awarded the former wife a proportionate share of any future COLAs attributable to the service credit earned du...

assets with the exception of the wife’s IRA. Section 61.076(1), Florida Statutes (1997), provides that

...1st DCA 2011) (holding that pre-marriage contributions to a retirement plan are not considered marital assets acquired during the marriage). Because the pension was a military pension, special information needed to be included in the judgment. See § 61.076, Fla. Stat (1993). Pursuant to section 61.076(2)(c), the amount of the pension to be distributed to the Former Wife could be expressed “in dollars” or “as a percentage of the disposable retired or retainer pay.” If a percentage was used, it was intended to distribute the benefits “accrued during the marriage.” § 61.076(1)....

...Stat. (defining “marital property” as including “[a]ll vested and nonvested benefits, rights, and funds accrued during the marriage in retirement, pension, profit-sharing, annuity, deferred compensation, and insurance plans and programs”); see also § 61.076(1), Fla....

increased in value during the marriage. We affirm. See § 61.076(1), Fla. Stat. (1997). Katherine Nelson cross-appeals

...3d DCA 1993), wherein the third district reversed an order distributing marital assets because it included post-dissolution income in calculating the husband’s pension plan. Further, the court should have looked to the statutory provisions of sections 61.075(5)(a) (defining “marital assets”) and 61.076(1) 3 (outlining the distribution of retirement plans upon dissolution of a marriage) to reach the correct ruling that the amended QDRO was not in compliance with the MSA and final judgment. §§ 61.075(5)(a), 61.076(1), Fla....

...nt plan is not to include any contributions made after the original judgment of dissolution. We believe that this gives effect to the statutory definition of marital assets in section 61.075(5)(a), Florida Statutes (1993), and to section 61.076(1), Florida Statutes (1993). Id....

...appreciation in Former Wife’s 401(k) account. In the final judgment, the trial court used the final date of trial as the valuation date for Former Wife’s retirement accounts without regard to Former Wife’s active contributions after the filing date. Section 61.076, Florida Statutes (2024), provides that “[a]ll vested and nonvested benefits, rights, and funds accrued during the marriage in retirement, pension, profit-sharing, annuity, deferred compensation, and insurance plans and programs are marital assets subject to equitable distribution.” § 61.076(1), Fla....

...lution. Although the trial court properly found the enhancement, during the marriage, of the husband’s pension funds to be a marital asset it was error not to consider same when making its equitable distribution, § 61.075(5)(a), Fla.Stat. (1993); § 61.076(1), Fla.Stat....

61.075(5)(a), Florida Statutes (1993), and section 61.076(1), Florida Statutes (1993).1 The trial court

equitably divide it. The court erred. Section 61.076, Florida Statutes (2018), provides:

...3d 819, 823 (Fla. 4th DCA 2020))). "All vested and nonvested benefits, rights, and funds accrued during the marriage in retirement, pension, profit-sharing, annuity, deferred compensation, and insurance plans and programs are marital assets subject to equitable distribution." § 61.076(1)....

DCA 1992); § 61.075(5)(a), Fla.Stat. (1995). . § 61.076, Fla.Stat. (1995); Vaccaro v. Vaccaro, 677 So