 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Ruggles v. Ruggles8/16/1993
thod. Koelsch, 148 Ariz. at 183, 713 P.2d at 1241 ("provides a clean break between the parties"); Shill, 100 Idaho at 437, 599 P.2d at 1008 ("effects a complete severance of the spouses' interests"); Gemma, 778 P.2d at 431 ("end the parties' involvement with each other and finaliz the divorce immediately in all respects"); Sherry A. Fabina, Note, The Retirement Equity Act: An Accommodation of Competing Interests, 63 Ind.L.J. 131, 143 (1987) ("avoid future confrontations about financial matters").
With these principles in mind, we now apply them to the issues in these cases.
III. APPLICATION OF THE PRINCIPLES
A. Critique of Schweitzer
We begin with a critical analysis of Schweitzer 's "equal sharing of the risk" rationale for adopting the "pay as it comes in" or reserved jurisdiction method of distribution. We note first that Schweitzer has been criticized by commentators, see generally Carter & Myers, supra, but we do not intend in this Discussion to review those criticisms. Rather, we intend to provide our own analysis of the shortcomings of the rationale enunciated for the "pay as it comes in" method.
As noted above, the Court's concern in Schweitzer over the lump sum method was twofold: First,
the court could award a "lump sum" benefit in one case which would grant to the non-employee spouse an amount that might not ever be received if either spouse died before the projected benefits had been paid out; and on a "pay as it comes in" basis in another case, which would operate to the benefit of the employee spouse whose retirement income would not have to be divided after the non-employee spouse's death.
. Second,
he inequality would be compounded if the employee spouse died first, having received only a portion of his or her divided share but having paid the exspouse the present value of all of his or her estimated lifetime share under the lump sum decree.
Id.
Thus, the Court focused its concern over the lump sum method on the potential inequality arising from the risk of forfeiture borne by the employee spouse: If he lived longer than his life expectancy, he would realize benefits in excess of those distributed to his ex-spouse on dissolution; if he died before retirement or before living out his life expectancy, with no ability to alienate or transmit at death the value of his pension rights, he would receive less than the value of the rights transferred to his former spouse at the time of divorce . As the Court of Appeals put it in Ruggles below, this Court in Schweitzer "was most concerned with the possibility of the employee spouse bearing all the risk of forfeiture and desired instead for both parties to bear the risk. . . . [The Supreme Court determined] that it is preferable for both spouses to bear the risk of forfeiture equally. . . ."
But we think it impossible to devise a system that, in all cases, will result in both spouses bearing the risk of forfeiture equally. Although this is the professed goal of the reserved jurisdiction or "pay as it comes in" method, its achievement of that goal is illusory. For, while the nonemployee spouse risks losing everything if her husband dies prematurely (i.e., before retirement), the employee spouse walks away from the marriage dissolution secure in the knowledge that, if he lives past retirement, he will eventually have a pension to protect him in his retirement years. In the meantime, he has a job. He has a source of income (probably amounting to considerably more than the amount he would receive as a retirement pension) and the rela
Page 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 New Mexico Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|