Pensions pose risk in cases of divorce

The uncertain future of corporate pensions has permeated an area of personal finance that most people don’t like to think about: divorce.

“Fifteen or 20 years ago when you negotiated property division, most pensions were pretty much thought of as an absolute guarantee,” said Ike Vanden Eykel, a family law attorney. “Now you’re looking at them as, ‘Is this the next Enron?”‘

Struggling companies are turning their pension plans over to the federal government at a record rate. Even some healthy companies are eliminating future retirees’ promised monthly checks for life. Meanwhile, many people are still suffering after the turn-of-the-century stock bubble, and Social Security is on wobbly feet.

Lawyers say they see those concerns in divorce negotiations.

“What do you do when you have a risky asset?” asked Vanden Eykel. “You either try to give it to the other side, if you can, or you need to spread the risk and spread it in a way that the person who’s least able to accept the risk isn’t burdened with the majority of the risk. It’s not easy.”

Retirement benefits can be the largest assets a couple divides in a divorce.

If you are in a divorce situation, you’ll have to negotiate for your share. And the shifting landscape of pensions has changed many long-held assumptions of negotiations.

“Retirement accounts are certainly not viewed as being as secure or static as they once were,” said Janet Brumley, a family law attorney in Dallas. “Where we once viewed each and every retirement account as something that could only grow, we now seem to be coming around to the idea that retirement accounts are changeable assets that can lose value or even disappear, just like they can morph and grow.”

If you’re already divorced and worried about the future of your ex-spouse’s pension, there’s not a lot you can do, experts say. But contact your lawyer if you have questions.

If you’re in the process of divorcing, consider the following advice, which applies to both husbands and wives.

The first thing to do is make sure you understand the details of your spouse’s pension, as well as your own. Ideally, you should have had this information all along, even before you contemplated divorce.

“Identify all the benefits that there are,” said Anne Moss, a Washington attorney and consultant who helps lawyers divide pensions in divorce cases. “A highly paid employee will tend to have more retirement plans. Top executives will typically also have nonqualified plans or supplemental plans that are given on top of the regular company plans. Those need to be identified.”

Next, view traditional pensions as having an uncertain future and negotiate in that context.

“It’s one thing when you divide current assets,” said Barbara Handschu, president of the American Academy of Matrimonial Lawyers. “It’s another thing when you’re doing something in the future based on an account that might become defunct.”

One strategy for a nonworking spouse can be to take cash and property of equal value to the working spouse’s pension, leaving him or her with the future risk.

“Have an assessment of the plan done so both parties have a number as to the value of the pension plan today and then take her percentage interest in the community property estate asset of the retirement account in other community property assets, thereby divesting herself of any interest in the pension plan,” Brumley said.

However, the other spouse’s lawyer may have a different idea.

For any spouse, it’s wise not to take the whole pension, said Michael McCurley, a family law lawyer in Dallas.

“It’s given new meaning to the saying, ‘A bird in the hand is worth two in the bush,’ ” he said. “You must look suspiciously on any long-term payout in retirement, because it may or may not be there 20 years from now, 10 years from now or even five years from now.”

An important principle both spouses should be interested in is diversification.

Both parties should be negotiating for a good mix of assets during a divorce, McCurley said. “You have to look for different avenues of long-term security from both litigants’ point of view.”

There is a way to evenly split the risks and rewards of a pension. This works particularly well if both spouses have a pension and you don’t know whose is more secure.