Janko Family Law Solutions Home
Dividing Public Employee’s Retirement Association (PERA) Benefits in Colorado Springs, Colorado Divorce
Are you involved in a Colorado divorce or family law proceeding? An experienced Colorado Springs, Colorado divorce and child custody lawyer can guide you through the legal process and assist you in exploring your options. You have one bite at the apple in the court system so make it count.
When a marriage ends in Colorado, retirement benefits earned during the marriage are among the most valuable—and complex—assets to divide. For many Colorado public employees, that means dividing benefits from the Public Employees' Retirement Association (PERA).
PERA Benefits Are Marital PropertyColorado law treats pension benefits, including PERA, as marital property subject to equitable division in dissolution cases. In re Marriage of Grubb, 745 P.2d 661 (Colo. 1987). The portion of PERA benefits earned during the marriage is divisible between the spouses, while any portion attributable to employment before the marriage or after the decree remains separate property.
Court Jurisdiction Is Limited: A court has no jurisdiction to enter an order dividing a public employee retirement benefit except upon written agreement of the parties. C.R.S. 14-10-113.
Direct Payment by the Plan:When the parties enter a written agreement and the court approves it, PERA itself can make payments directly to the former spouse. C.R.S. 14-10-113, C.R.S. 24-51-212. This avoids the necessity for the employee spouse to directly pay a portion to the former spouse.
If the parties cannot agree in writing on division of PERA benefits, the court still has jurisdiction to divide the marital portion of the PERA account as marital property—but the court cannot order PERA itself to make direct payments to the former spouse without a written agreement. In re Marriage of Tagen, 62 P.3d 1092 (Colo. App. 2002). Instead, the court may order the employee spouse to pay the non-employee spouse his or her share directly. In re Marriage of Tagen, 62 P.3d 1092 (Colo. App. 2002).
Draft a Clear Written AgreementThe parties' written agreement must:
- Clearly identify the participant and former spouse
- Specify the formula or percentage for division
- Indicate when payments to the alternate payee will begin
- Address survivor benefits and beneficiary designations
- Comply with PERA's procedural rules and any standardized forms
Many divorcing couples have multiple retirement accounts. It is important to consider the overall retirement assets and the tax characteristics of each account when structuring an equitable division.
Consider Timing and Survivor BenefitsDecide whether the former spouse will begin receiving benefits when the participant becomes eligible or when the participant actually retires. With PERA, there is that option. Address what happens if the participant dies before or after retirement, and whether the former spouse will receive survivor benefits. The survivor benefits are not automatic. As a note, PERA benefits that have been divided as property are not included in gross income for purposes of calculating maintenance.
Turning Change Into Opportunity in Colorado Springs, Colorado Divorce and Child CustodyA highly knowledgeable and experienced Colorado Springs divorce and child custody lawyer can guide you through Colorado Springs divorce and child custody matters by negotiating, mediating and litigating on your behalf. You can focus on moving to a better future instead of spending your time attempting to navigate complex legal rules and procedures.
Sabra Janko from Janko Family Law has more than 20 years of legal experience and has written “the book” on Colorado divorce and family law – “Colorado Family Law With Forms”, published by LexisNexis, which you can find here. Contact us at 719-344-5523 or complete our online scheduling request for a free 30-minute informational consultation. We also offer paid advice sessions for a more in-depth analysis of your case.
