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Collins v. Collins5/30/2002
f the divorce, he argues that they could no longer be considered marital property. Dr. Collins argues that the pension award was proper because, as the court stated, "`the Plaintiff has not received any portion of her marital share' for the months of May thru August, 2000."
The court explained its ruling as follows:
Now, insofar as marital, the military pension, the defendant has retired and is receiving from the military $3,685 a month and he began receiving this military pension in May of 2000 and to this date, the plaintiff has not received any portion of her marital share.
And her marital share is equivalent to 40 percent of the pension based on the number of months the parties were married while the defendant was earning his pension to the date of his separation from the military and so I am considering the numerator to be 248 months and the denominator 311 months, 80 percent roughly divided by half equals 40 percent. It comes out to $1,474 a month effective May 1, 2000.
There is no question that a pension, or rights to a pension, are part of marital property. FL § 8-204(b); Lookingbill v. Lookingbill, 301 Md. 283, 289, 483 A.2d 1 (1984); Deering v. Deering, 292 Md. 115, 130-31, 437 A.2d 883 (1981); Long v. Long, 129 Md. App. 554, 574, 743 A.2d 281 (2000).
Three methods of determining the value of a pension have been developed because most often the pension at issue has not vested as of the date of divorce. See Deering, 292 Md. at 130-31 (explaining the different methods of placing a value on a pension); Kelly v. Kelly, 118 Md. App. 463, 471, 702 A.2d 999 (1997) (noting that the true value of a pension often cannot be ascertained with any certainty at the time of divorce).
In this case, the pension had vested and present value was readily ascertainable. The court used the Bangs formula to determine Dr. Collins' marital portion of Lt. Col. Collin's monthly pension of $3,685. The division was to be fifty-fifty for pension benefits accruing during the marriage, as expressed in the following formula:
1 X (248 months of marriage) X $3,685
2 (310 months of service)
Lt. Col. Collins was already in the Air Force when he married Dr. Collins. Therefore, her share would be 50% of the portion earned while the two were married, rather than 50% of the entire pension. Lt. Col. Collins does not allege, nor do we perceive, any abuse of discretion in the trial court's determination that Dr. Collins was entitled to 50% of the marital portion of the pension.
Lt. Col. Collins complains that the trial court could not require him to pay to Dr. Collins a share of pension benefits he received for the four months during which they were separated but not divorced. This is because, although the rights to a pension are considered marital property, "property disposed of before trial cannot be marital property." Choate, 97 Md. App. at 366.
FL § 8-205 permits a monetary award "as an adjustment of the equities and rights of the parties concerning marital property[.]" (Emphasis supplied.) Although the court may consider any fact "necessary or appropriate" in arriving at a "fair and equitable" monetary award, the award relates back to marital property. In Gravenstine v. Gravenstine, 58 Md. App. 158, 177, 472 A.2d 1001 (1984), we said that marital property which generates a monetary award must ordinarily exist as "marital property" as of the date of the final decree of divorce based on evidence adduced at the trial on the merits or a continuation thereof. Therefore, property disposed of before commencement of the trial under most circumstances cannot be marital property.
The pension
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