Time Rule Formula Pension
The "time rule" formula includes a marital fraction, sometimes referred to as a "coverture fraction," which determines the marital interest in the pensions.
The marital fraction consists of the numerator which is the number of years (or months if more accurate) that the employee spouse has earned towards the pension during the marriage, over the denominator, which is the number of years (or months if more accurate) of total service towards the pension.
The marital fraction is multiplied times the monthly benefit and divided in half (in order to divide the marital portion of the pension benefits). at the time the court establishes the percentage, the benefit is an unknown figure. Therefore, actual calculation of a dollar amount must await receipt of benefits.
In re the Marriage of Hunt, 909 P.2d 525, 530-31 (Colo. 1995). a person was born on June 9, 1935, making him nearly 57 years old when the decree was entered in May 1992. He had qualified for early retirement, and would have been entitled to receive benefits had he retired when the decree was entered.
The use of the "time rule" formula has been approved by the courts in a number of states.
See Cooper v. Cooper, 167 Ariz. 482, 808 P.2d 1234 (Ariz. App. 1990), review denied, (Ariz. May 7, 1991);
Stouffer v. Stouffer, 10 Haw. App. 267, 867 P.2d 226 (Haw. App. 1994);
Warner v. Warner, 651 So. 2d 1339 (La. 1995);
Lynch v. Lynch, 665 S.W.2d 20 (Mo. App. 1983);
Rolfe v. Rolfe, 234 Mont. 294, 766 P.2d 223 (Mont. 1988);
Gemma v. Gemma, 105 Nev. 458, 778 P.2d 429 (Nev. 1989);
Berry v. Meadows, 103 N.M. 761, 713 P.2d 1017 (N.M. App. 1986);
Welder v. Welder, 520 N.W.2d 813 (N.D. 1994);
Woodward v. Woodward, 656 P.2d 431 (Utah 1982).
The Colorado court in Hunt aptly set forth many sound reasons supporting the use of that formula.
See also Graham & Keller, 15 Kentucky Practice Domestic Relations Law, 15.29, pp. 536-541 (2d ed. 1997), and the 2000 pocket part, for a further discussion of the merits of using the "time rule" formula and applying the employee's salary at retirement rather than the salary at the time of the divorce.
characterizes all such increases as the separate property of the employee spouse." Hunt, 909 P.2d at 532.
Although the reasons stated by the Colorado court in Hunt and by courts in cases from other jurisdictions for adopting the "time rule" formula and the "marital foundation theory" have some merit, we nevertheless opt to follow prior precedent from this court.
A number of jurisdictions have held that the employee's salary at the time of the divorce should be used. See Koelsch v. Koelsch, 148 Ariz. 176, 713 P.2d 1234 (Ariz. 1986); Shill v. Shill, 115 Idaho 115, 765 P.2d 140 (Idaho 1988); Berrington v. Berrington, 534 Pa. 393, 633 A.2d 589 (Pa. 1993); Berry v. Berry, 647 S.W.2d 945 (Tex. 1983).
We recognize that "a trial court retains broad discretion in valuing pension rights and dividing them between parties in a divorce proceeding, so long as it does not abuse its discretion in so doing in the sense that the evidence supports its findings and they thus are not clearly erroneous." Duncan v. Duncan, Ky. App., 724 S.W.2d 231, 234-35 (1987).
However, by failing to follow applicable precedent, the trial court abused its discretion. See Rules of the Supreme Court (SCR) 1.040(5).