Qualified Domestic Relations Orders and Pension Evaluations
Pension Evaluations Qualified Domestic Relations Orders QDRO's QDRO Tutorial Pension Evaluation Contact Us
QDRO
QDRO Forms
Pension Evaluation
Additional Services
QDRO Administration Services
Seminar/Lecture Services
CLE Courses
Fee Schedule
Learning Tools
Newsletters
Relevant and Cited Cases by our Staff
FAQ's
Glossary
About Us

Name:
Email:
Phone:
--
Message:
Make a Payment
We support Apraxia-KIDS

IMPACT OF NOT FOLLOWING

BOYETT & HOWERTON

Florida family law practitioners recognize that Boyett (703 So. 2d 451) limits the amount of pension benefits that can be awarded to an Alternate Payee. The Boyett limit is:

  • an agreed percentage of the employee's monthly accrued benefit accrued up to the Date of Divorce.

Boyett, endorsed the reasoning found in the Howerton decision (491 So. 2d 614). Essentially, the Boyett-Howerton formula calls for a finite benefit to be awarded to an Alternate Payee. This "finite point in time" may not be later than the date the parties are divorced.

The Boyett – Howerton calculation for the division of a Defined Benefit Plan incident to divorce would be as follows:

Step I.

Compute the employee's monthly accrued benefit as of the date of divorce (or filing date).

Step II

Multiply the Step I. benefit by a fraction:

Numerator: total years of service while married and accruing a benefit up to jurisdiction's End of Marriage Date

Denominator: total years of service up to jurisdiction's End of Marriage Date

Based on the Ingram decision that fraction was

Coverture Fraction

Numerator: 11 Years

Denominator: 11 Years

(11 ÷ 11 = 100%)

The product of this calculation is the marital benefit.

Based on the Ingram Coverture Fraction, at this point the benefit was fully marital.

Step III.

Award to Alternate Payee a percentage of the Step II marital benefit (assume 50%)

Commentary.

Central to the Boyett-Howerton formula is use of either the date of divorce or the date the action was filed in the calculation of the monthly benefit to be paid to the Former Spouse. The Boyett – Howerton formula produces a finite monthly benefit, i.e. $500.00 per month. This award to a Former Spouse does not change or increase over time. It is a fixed award to the Former Spouse determined at divorce that becomes payable upon the retirement of the employee. Benefit accruals subsequent to the end of marriage are the exclusive property of the Employee Spouse.

The Ingram Decision (133 So. 3d 1205), reflects the impact of a settlement that does not conform to the Boyett – Howerton formula. Application of the Ingram formula results in an award to a Former Spouse that is greater than the benefit a Former Spouse would receive from the Boyett – Howerton formula.

Little statistical data is found in the Ingram decision other than the fact that the parties were married for eleven years during which the husband was accruing a military retirement benefit. The discussion that follows is based on the statistics provided below. Only the eleven year figure is taken from the Ingram matter, the balance of the statistics are not derived from the Ingram decision, but are consistent with the pay grades for the years:

  • 1993 Soldier with Eleven years of service
  • 2002 Soldier with Twenty years of service
  • 2012 Soldier with Thirty years of service

The rank and pay grade of husband were not indicated. For this article it assumed:

1993 A rank of O-4 at eleven years,

2002 A rank of O-6 at twenty years,

2012 A rank of O-7 at thirty years

STATISTICS AT TIME OF DIVORCE

APPLY THE BOYETT – HOWERTON FORMULA

Soldier Tom Striker

Coverture Fraction 100%

Numerator 11

Denominator 11

Pay Grade Major O-4

O-4 Pay, 1993 Schedule $39,276.00

Benefit At Divorce $900.08

(2.5 * 11 * $39,276.00 = $900.08)

Coverture Fraction 100%

Marital $900.08

Wife Award from Pension (50%) $450.04 [1]

Commentary.

If the Soldier retired after twenty or thirty years of service, and Boyett – Howerton language was inserted into the Marital Settlement Agreement the amount awarded to the Former Spouse would remain at $450.04.

ALTERNATE OUTCOME

BOYETT – HOWERTON NOT OBSERVED

INGRAM FORMULA APPLIED

Significance of Non-Conforming Language Compared to Boyett-Howerton.

The Ingram Marital Settlement Agreement provided that the Former Wife

[is] entitled, under the laws of the State of Florida, to 27.5 percent of [the Former Husband's] disposable retired pay upon his retirement from military service.

STATISTICS FOR MEMBER WITH 20 YEARS OF SERVICE

Pay Grade Major O-6

Pay At 20 years of service $83,379.60

Monthly Benefit At 20 yos $3,474.15

Agreed Percent Award To Wife 27.50%

Wife Part of Pension $955.39

The Percent of Increase to the Former Spouse due to failure to insert

Boyett – Howerton language 112.29%

STATISTICS AFTER 30 YEARS OF SERVICE

Pay Grade Major O-7

Pay At 30 yrs. of service $144,252.00

Monthly Benefit At 30 yos $9,015.75

Agreed Percent Award To Wife 27.50%

Wife Part of Pension $2,479.33

The Percent of Increase to the Former Spouse due to failure to insert

Boyett – Howerton language 450.92%

Summary.

Had Boyett-Howerton language been inserted into the Marital Settlement Agreement the amount of monthly benefit payable to the Former Spouse, Regardless of the Soldier's Time of Retirement, would have been: $450.04.

Failure to insert Boyett-Howerton language into a Marital Settlement Agreement results in:

  • A substantial increase in the monthly benefit paid to a Former Spouse
  • A substantial decrease in the monthly benefit paid to the retiree

Final Comments:

Application of the Boyett – Howerton formula is not mandatory. Clearly, the message to an attorney representing the non-employee spouse is:

APPLY THE INGRAM FORMULA



[1] This award will be payable to the Former Spouse upon the retirement of the soldier.