SELECTED NEW JERSEY APPELLATE DIVISION DECISIONS RELATING TO QUALIFIED DOMESTIC RELATIONS ORDERS

• Marx v. Marx, 265 N.J. Super. 418 (1993):

  In Marx, the Appellate Division held that pensions "clearly subject to equitable distribution under New Jersey law." With respect to the method by which a pension is to be distributed, the Court in Marx states:

  The method of distribution prescribed by the court involves the application of the coverture fraction multiplied by the non-employee spouse's share. The coverture fraction is determined as follows: "The numerator of the fraction is the period of pension plan participation during the marriage and the denominator is the total period of plan participation necessary to the receipt of benefits."

  Id. (citing Whitifeld, 222 N.J. Super. at 48, 535 A.2d 986).

• Panetta v. Panetta, 370 N.J. Super. 486 (2004).

  In Panetta, the Appellate Division noted that its prior decision in Marx (discussed hereinabove) sets forth the appropriate methodology for distributing the non-participant's spouse's share in a deferred-distribution pension. The Court summarized the calculations mandated in New Jersey trial courts as follows: "The actual retirement benefit is multiplied by the coverture fraction and divided by two to produce the marital share"

  In Panetta, the Appellate Division also restated the well-established principal that a non-participant spouse is entitled to participate in post-retirement cost of living adjustments:

  It is well settled that post-retirement COLAs are subject to equitable distribution to the extent they are "attributable to the portion of the pension that was earned during the marriage."

  Id. (quoting Risoldi, 320 N.J.Super. at 536, 727 A.2d 1038)

• Claffey v. Clafeey, 360 N.J. Super. 240 (2003)

  In Claffey (as in Panetta) the Appellate Division emphasized that its decision in Marx sets forth the basic method by which a non-participant spouse's share of a pension is to be calculated:

  1. the total accrued benefit is determined when the non-pensioner spouse is permitted to move her or his share of the benefit to pay status pursuant to the plan requirements;
  2. the plan administrator determines the coverture fraction and multiplies the total accrued benefit by the coverture fraction; and
  3. the product of the total accrued benefit times the coverture fraction is divided in half in accordance with the non-pensioner spouse's equitable share.

The Court in Claffey discussed some of the more difficult issues that face litigants and their attorneys with regard to pensions and qdro's. Among these is the rule that pursuant to N.J.S.A. 2A-34:23(b), a share of a retirement benefit that is treated as an asset for purposes of equitable distribution may not also be considered as income with regard to alimony determinations. The Court noted that this restriction only applied to the part of the pension that was distributed, and was not applicable to the pension benefits that were earned after the date of the divorce.