# What pension rights does she have?



## MaxJax (22 Aug 2007)

I am currently Legally Separated and have just started Divorce proceedings.

My 'soon to be' ex wife has recently contacted me (after years of only corresponding through our solicitors) to make a proposal and I desperately need to find out where I can get professional financial advice regarding this - my solicitor can't or won't give me a straight answer, just tells me it's for the courts to decide, which doesn't help me in my current predicament.

I'll try to make it as short as possible:

The Legal Separation was very messy and expensive, I was expecting the divorce to be the same. Then my ex contacted me to say she is happy for the divorce to go ahead and would be happy to accept exactly what she is getting paid now in maintenance - that's her and the 2 last dependant children. Then the pension was mentioned! She says she will revoke all rights to my pension if I pay her a lump sum now - she has yet to come up with a figure. Whatever she decides on and if I accept, I will have to get a loan as I have no savings whatsoever.

Thing is, I want to have an idea of what she might possibly be awarded by the courts should I let a Judge decide. I have seen the 'formula' that is supposed to help you figure out what will be paid, but that's gone WAY over my head. As previously mentioned above, my Solcitor is useless on this matter and says it's up to the Judge. 

Another factor is that, in the Legal Separation I was ordered to sign over my half of the house to her, she agreed to take over the mortgage from that point, prior to that I had always paid it as she didn't work outside the home. I got nothing for my half of the house, I basically signed away about €100,000 and had to start afresh, I now only have a 50% share in a house (with a mortgage) and will never be able to afford to buy the other 50%. Will the fact that I gave her my half of the house be taken into consideration by the courts if they were sorting out how much of my pension she should get?

I am also concerned that given there is no 'clean break' divorce in Ireland, if I did accept her proposal and gave her a lump sum now, would she be able to go back to the court in the future and ask for her pension rights to be re-instated?

Last question, if the courts did decide on what she was due, would she still be entitled to a weekly maintenance amount from my pension as well as a percentage of the lump sum involved, or would it just be the percentage of the lump sum?

Sorry for all the questions but I want to make sure I'm not taken advantage of, this 'change of heart' of hers is quite disconcerting so I'm not sure if she's trying to dupe me!

If nobody here can help me, would anyone be able to point me in the direction of a professional who can? 

Thanks in advance
Max


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## ClubMan (22 Aug 2007)

Not much help but if your existing solicitor claims that s/he cannot advise then maybe you need a new one as that sounds like a cop out?


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## MaxJax (22 Aug 2007)

ClubMan said:


> Not much help but if your existing solicitor claims that s/he cannot advise then maybe you need a new one as that sounds like a cop out?


 

I've considered it, believe me!  But I don't know if it would be more hassle than it's worth!  Plus, there's no way I could pay the solicitor fees right now should I decide to stop using my current one and go for another!  I think I'm stuck with this one.  

Max


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## ClubMan (22 Aug 2007)

Is free legal aid available in this situation? Maybe I'm missing some pertinent information here but it does sound like your solicitor is slacking.


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## MaxJax (23 Aug 2007)

ClubMan said:


> Is free legal aid available in this situation? Maybe I'm missing some pertinent information here but it does sound like your solicitor is slacking.


 
Unfortunately not, I don't qualify for free legal aid.  Is this (the above info I'm requesting) something my solicitor should know or am I expecting too much?

I've hunted out my legal separation document and regarding the pension it says:

_"An Order in respect of Pension Adjustment under Section 12 of the 1995 Act."_

This tells me little or nothing of what kind of percentage I might be expected to pay, does anyone know if it is a standard 50% or can the Judge vary it according to what my 'ex' got in the Legal Separation, i.e. my half of the house?  I asked my solicitor what this meant and she said she'd have to look it up!!??!!  

Is there any kind of 'set' instructions as to how the Judge determines the percentage of the pension that the ex should get?

Sorry again for all the questions!

Max


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## boaber (23 Aug 2007)

This is the section of the Family Law Act 1995 that relates to Pension Adjustment Orders (PAO) http://www.irishstatutebook.ie/1995/en/act/pub/0026/sec0012.html

Paragraph (2) relates to Retirement Benefits (i.e. Pension) and paragraph (3) relates to contingent benefits (i.e. death benefits).

I work in the Pensions section of a Life Office and have seen many PAOs come in.  The award to the ex-spouse is usually expresses as a % of the benefits between certain dates (usually the later of the start date of the policy or date of marriage and the date of divorce).  In % terms, I have seen the amount range from 0.001% to 100%.

Your solicitor may seem to be avoiding the quesion but, as the Act keeps stating "as the court may determine".  She obviously has no experiene in the field of PAOs?  If she had she should be able to tell you what 'the most likely' outcome would be based on earlier cases.  Could be time to start looking for a solicitor with experience in this area.


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## boaber (23 Aug 2007)

This solicitors website http://www.traceysolicitors.ie/pensions.html states the following:

"How the Courts deal with pension rights 

In Proportion 

A pension adjustment order requires the trustees of that scheme to pay a proportion of the pension benefits to the other spouse or for the benefit of a dependent member of the family. 

The Court may take account of pension benefits by making an adjustment to the allocation of non-pension matrimonial properties. The Court can also decide that adequate financial protection can be made for the dependent spouse and children by requiring the other spouse to set up a suitable life assurance policy - rather than making a pension adjustment. 

Only the spouse or someone representing the children can apply for such a Court order. The Court will take into account whether sufficient provision has already been made"

Hope this helps


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## lyonsie (23 Aug 2007)

My partner got his divorce a few years ago and his ex signed away her rights to his pension and lump sum in favour of his signing over his half of the family home and giving her the house mortgage free (we had to re. mortgage and take on what was left), she just wanted the widow's pension should he die before her..... a great incentive for him to outlive her...
When the pension was being discussed, we understood her entitelement would be a percentage of it for the duration she was with him during the life of it.
If she were awarded 50% of the portion she was with you for, would that be smaller or greater than a lump sum.....  You will have to wait for the lump sum to be mentioned.... and wait you should.... do not be rushed into making any discision.

On another note...  a man we know was getting divorced and all of a sudden the ex was willing to settle very quickly for lump sum and no pension etc,   he could'nt believe his luck after it being very messy for seperation.    Turned out that she was pregnant with new man and had he not been so hasty for the 'peace and quiet' he would have gotten a much better deal for himself.


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## money man (23 Aug 2007)

sorry just wondering what "the formula" is and where can you see it...sorry to hear about your predicament but i know from one situation that if you have the money then its best to wait and see what comes out rather than rushing to a quick settlement. Remember you will be able to prove to the judge that you have no savings a mortgaged property which you will need to contine to pay... and that you will have to have adequate money for your own retirement...its not just as simple as she is entitled to half of everything...you have rights also


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## MaxJax (23 Aug 2007)

Thanks to everyone for their replies - I've written to my solicitor explaining what I need to know and why I need it, and asking if she can't answer the question, can she find someone who can!

Moneyman - I found the 'formula' here 

http://www.pensionsboard.ie/index.asp?locID=328&docID=281

But I don't know how current it is as it uses a £ sign instead of a €!!


Boaber - thanks for that info, funny thing is, this solicitor was recommended to me by another solicitor who didn't actually deal with matrimonial cases! I don't know if she just doesn't want to give me any details of past cases because my outcome might be so different or if she just doesn't know - it's very frustrating. I'll see what my solicitor says in her reply. 

I've also been trying to get in touch with my Superannuation office to find out how they work out the final pension but just keep getting told that the person who deals with that is on holiday - looks like noone covers their work for them while they are away! Does anyone here know how Superan works out the pension? 

Thanks again,

Max


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## Tom Hagen (23 Aug 2007)

MaxJax - pensions can be quite a difficult area and it appears that quite a number of solicitors either don't understand the issues involved or have developed some sort of mental block.

The first thing that your solicitor should do is requisition a copy of the Trust Deed and any explanatory booklets from your pension provider as the terms of the scheme will determine the manner in which your pension will be administered by the Trustees of your scheme. For example, in some schemes no spousal benefit will be paid out to spouses who are living with a person other than the 'member' as man and wife. Obviously the specifics will differ from scheme to scheme and your solicitor will need to be fully aware of the conditions in yours.

In the event that you are looking to limit or prevent your spouse from having your pension 'split' or some of it 'earmarked' in her favour you should get your solicitor to seek a nominal pension adjustment order in your Family Law Civil Bill / Defence and also an order blocking any future dealings with your pension. This is an order such as "0.01% of the benefit which accrued between midnight and midday of the first day you joined the scheme". However, it is unclear whether you signed a Deed of Separation when you became 'Legally Separated' and if this is the case it will affect your ability to deal with pensions and you will need to discuss this with your solicitor in detail.

In the event that either yourself or your estranged spouse is going to seek to have any dealings with your pension you will need to get your solicitor to serve a "Notice to Trustees" on the trustees of your pension scheme so that they can be represented at the hearing at their discretion and your expense.

If you or your solicitor are unsure of the position in relation to pensions try to get your hands on a copy of the Law Society Family Law manual published by Oxford Union Press and available in shops such as Easons or various libraries which explains the issue thoroughly. Alternatively ask your solicitor to retain a family law barrister to provide you with a more in depth answer if your solicitor lacks the necessary experience - it will cost you a few bucks but is ultimately money well spent.

Finally, it is notoriously difficult to predict what the courts will consider 'proper provision between the parties' and this may be the reason why your solicitor is unwilling to give you a concrete answer but you should try to find out exactly how strong your hand is before entering into any negotiations on a lump sum. Also, remember you should not be trying to get out for as little as possible and the courts will undoubtedly try to make reasonable provision for both parties so try to be fair in any negotiations. Good Luck!


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## MaxJax (25 Aug 2007)

Tom Hagen - thanks so much for your advice, I'll make sure to follow it through, may I ask a question on the following?

_*Originally posted by Tom Hagen*_
_"The first thing that your solicitor should do is requisition a copy of the Trust Deed and any explanatory booklets from your pension provider as the terms of the scheme will determine the manner in which your pension will be administered by the Trustees of your scheme. For example, in some schemes no spousal benefit will be paid out to spouses who are living with a person other than the 'member' as man and wife. Obviously the specifics will differ from scheme to scheme and your solicitor will need to be fully aware of the conditions in yours."_

Sorry to sound a bit thick here, but does this mean that if my pension scheme is as you mentioned here, if my ex starts living with a boyfriend or gets remarried, she gets none of my pension and the Judge can't order otherwise through the court?  She'd stay single just to spite me!! 

I spoke to my Superannuation Dept today and the person there told me that the maximum % of my weekly pension my ex might be awarded in the courts would be 50%.  She also told me that my ex would not be entitled to any of the lump sum I get on retiring.  Would this be true?  I was quite surprised as I thought this would be the first thing to get divided between us.

The Superan. Dept, is sending me out an estimate of what my pension will be should I retire at 55 so I thought of trying to figure out what the maximum my ex would get using the formula that I mentioned earlier - don't suppose anyone knows if this formula is still current?

I don't mean to sound like a scrooge who doesn't want to pay her anything, I'm more than happy to give her a fair share, but this change of heart she has had is so out of character that I'm worried she's actually trying to pull a fast one on me by trying to get this lump sum!  In my most recent conversation with her she was supposed to give me a figure of what she was looking for, but this has now been turned around and she wants me to give her a figure I'm willing to pay.  When I told her that the pension Dept had told me she wasn't entitled to any of the future lump sum, she didn't bat an eyelid, which makes me think she already knew about this - looks like she's getting better advice than me!

I'll just have to wait until the Pension paperwork comes through and try to figure it out, if the Supperannuation person I spoke to was correct and she doesn't get any of my lump sum, then this will make it a little easier for me to decide.

Thanks again everyone for your advice,
Max


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## shaking (25 Aug 2007)

MaxJax

My parents got divorced 2 years ago after being legally seperated for 24 years. Us children (3) lived with our mum the whole time and my dad paid her maintenance each month. When it went to court, dad was ordered to pay her a lump sum, and he has to continue paying maintenance, which increases each year, for the rest of his life (we're all over 21) she also got 100% benefit of four pension plans. Not sure if he has any other ones that she didn't get.

Don't know if that's useful information or not but it's an indication of what the judge can decide.


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## MaxJax (25 Aug 2007)

Shaking - thanks for your experience.

I get more and more confused the more I read!  *L*

When you said your mum got 100% Benefit - does this mean she got the whole thing and your dad got nothing?  How on earth does your dad live?  

When I was told by my Superan. Dept. that it would be a maximum of 50% I took it that meant she would get half of my pension but that I would have at least half to live on - it's the only pension I have!  And she now has a good job so I assume she will also have her own pension when the time comes too.

I'm hoping that the fact I gave her my half of the house (although I was ordered to do that by the Judge, I had no say in the matter) will count for something, I literally signed away approx. E130,000 when I did that as there wasn't much left on the mortgage at the time.    I've had to start again and now only own a 50% share of the house I'm living in, the other half belongs to family members.

I'll just have to wait for the Pension info to come through so I can have a look at that and see if I can figure anything out from that.

Max


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## shaking (26 Aug 2007)

I'm not sure if my dad had other pension plans I assume he does but she got 100% entitlement to 4 of them


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## South (27 Aug 2007)

If your solicitor does not have a clue about pensions then, if the client can afford it, s/he should retain a pension consultant to assist him/her with these situations.


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## Tom Hagen (27 Aug 2007)

MaxJax 

With regard to the section highlighted in blue, the rules of your pension scheme will strictly set out the present position in relation to your pension and the limitations placed on the trustees as things stand.

However, the court will have absolute discretion and can impose any terms in the court order it deems appropriate even if these wholly contradict the terms of the pension scheme. Naturally, the court will take the rules into consideration before reaching a decision but the primary factor will be proper provision for both spouses and the trustees of your scheme will be obliged to adhere to the ruling. This is the reason why a Notice to Trustees is served as it provides the trustees with an opportunity to address the court on the specifics of the scheme and make representations in support of what they believe is the most appropriate / manageable means of administering the scheme going forward.

Obviously I cannot comment on the terms of your scheme without seeing the rules and explanatory booklet but I would caution that you should perhaps take the advice of the Superannuation Dept. with a pinch of salt and should definitely seek the advice of your solicitor on this point. As a general rule the Court will have absolute discretion.

Finally, I would ensure that you receive very clear legal advice on this matter as it will have a massive impact on the rest of your life. At the end of the day you are just another file on your solicitor's desk and if they are not that competent in this area you could end up selling yourself very short. I genuinely don't mean to scare you by saying that but you should bear in mind that a very large percentage of family law proceedings are finalised on the basis of an agreement between the parties which is then ruled by the Court so I would be seeking to ensure that my representation was fully appraised of all the intricacies of my specific case and was not simply following the example of previous files in the office.

Once again, best of luck and I hope things work out for you both.


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## ronny78 (28 Aug 2007)

I don't want to hijack this post but if the OP's wife has her own pension plan, does the OP have a right to look for a payment from that on her retirement also ? Or is she obliged to declare that she will have this additional income in the future ?


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## Homer (28 Aug 2007)

ronny78 said:


> I don't want to hijack this post but if the OP's wife has her own pension plan, does the OP have a right to look for a payment from that on her retirement also ? Or is she obliged to declare that she will have this additional income in the future ?


 
Very good point and one that the OP should pursue.

As other posters have said, it's impossible to predict what the courts will decide as they tend to look at pensions 'in the round' as part of the overall divorce settlement. But this means that the pension schemes of both spouses should be taken into account in deciding on the terms of a Pensions Adjustment Order. There is a very good booklet on the pension provisions of the Family Law Acts on the Pensions Board website which you can download for free at http://www.pensionsboard.ie/index.asp?locID=358&docID=405&COMMAND=PRINTER

In my experience, very few lawyers fully understand the pensions provisions of the Family Law Acts and it's not uncommon for judges to decree Pension Adjustment Orders that are unenforceable. The entire area is very poorly understood.

It's sounds as if your employer's pensions department also don't understand how PAOs work as the non-member spouse is entitled to a pro rata share of any lump sum option applying on retirement. For example, if she is entitled to 30% of your retirement pension, she is also entitled to 30% of the retirement lump sum option and you are only entitled to 70%, _whether or not she exercises her 30% option. _Also, whatever order applies to your retirement pension also applies to any spouse's death after retirement pension. You can not differentiate under a PAO between one aspect of your retirement benefits and another aspect.

A separate order can however be made in relation to contingent benefits i.e. benefits payable if you die while still in the service of your employer. Where many court orders go wrong is in thinking that the spouse's death after retirement pension is a contingent benefit instead of a retirement benefit.

If you read the Pensions Board booklet, it should make things a bit clearer. However, it will require a bit of effort as the law is quite complicated and, as stated above, is often poorly understood by the legal profession.

Regards
Homer


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## F. Kruger (28 Aug 2007)

Could the PAO be made in favour of the children?


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## Homer (29 Aug 2007)

F. Kruger said:


> Could the PAO be made in favour of the children?


 
Yes.  Some or all of the PAO could be made in favour of the children, if they are dependent.

Homer


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## MaxJax (8 Sep 2007)

Thanks again everyone for the other replies.  I've now got to the point where I think I'm going to look for another solicitor, I've tried for 2 weeks to get mine to phone me with some answers and despite promises from her secretary, I've yet to hear from her.

I'm going to start another thread asking if anyone has any recommendations, but on the off-chance anyone reading this knows of a good divorce lawyer - please feel free to PM me the details!

Thanks
Max


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## dunn (7 Oct 2007)

Also any PAO will depend on if it is a 'defined contribtion' or 'defined benefit' pension.  If you agree a 'lump sum' in lieu of pension rights then you should also agree a Nil pension adjustment order to protect your retirement rights.   In most pension that max a spouse can get is 50%, if she remaried after divorce she is no longer a spouse and if she did not get a PAO prior to divorce she will not be able to claim against your pension.  So think long and hard about it.


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## gipimann (7 Oct 2007)

ronny78 said:


> I don't want to hijack this post but if the OP's wife has her own pension plan, does the OP have a right to look for a payment from that on her retirement also ? Or is she obliged to declare that she will have this additional income in the future ?


 
My own experience for what it's worth.

Ex and I both worked in public service, each contributing to our own pension.   When we divorced, the judge noted that we each had a pension and made no order for any transfer of pension/lump sum payments - in other words we were on our own regarding pensions.   There were no children, and the family home had been divided equally.


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