The Law Office of Kurt H King

November 18, 2013

Unusual Varieties of Income for Child Support Calculations

Filed under: Divorce,Family Law,Paternity,Support — kurthking @ 9:23 pm
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Here is a list of some out-of-the-ordinary sources of gross income for child support calculations in Missouri–from Heckman v. Heckman, Slip Opinion WD75676 (October 15, 2013):

1.  Salary, of course

2.  Dividends, capital gains, annuities, pension and retirement benefits–but the increase in value of stock is GENERALLY NOT included unless it is liquidated so as to result in capital gain (Gordon v. Gordon, 924 S.W.2d 529, 533 (Mo. Ct. App. 1996))–HOWEVER, the employee’s sale of restricted stock issued by company to employee as part of compensation package may be treated as dividends and included in gross income–p. 8 of Heckman

3.  Pre-tax “flex plan benefits”–citing Fulton v. Adams, 924 S.W.2d 548, 554 (Mo. Ct. App. 1996); but not employer contributions to retirement plan, Roberts v. Roberts, 847 S.W.2d 108, 109 (Mo. Ct. App. 1992)

4.  Rent received is included–Graves v. Graves, 967 S.W.2d 632,641 (Mo. Ct. App. 1998)

5.  The value of new stock issued as part of annual compensation package–even if it is restricted stock that vests over a time span of years, at least where the amount that vests each year may be averaged or there is some other reasonable method for considering past, present, and anticipated restricted stock earnings–pp. 7-8 of Heckman slip opinion

6.  The employee’s sale of restricted stock issued by company to employee as part of compensation package may be treated as dividends and included in gross income–p. 8 of Heckman

7.  Company stock purchased with funds which would otherwise have been received as compensation is included–p. 9 of Heckman

Kurt H. King

Law Office of Kurt H. King, 20 E. Franklin, Liberty, Clay County, Missouri 64068


Family Law–Dissolution of Marriage, Modification, Paternity–Child Custody, Support, Visitation

Personal Injury, Workers’ Compensation, Chapter 7 Bankruptcy, General Matters


Filed under: Divorce,Family Law,Litigation,Uncategorized — kurthking @ 3:13 pm
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Missouri law 511.310, RSMo 2013, seems to be a rarely used, straight forward way to recover for property that the ex-spouse fails to return as ordered in a divorce judgment.  However, the law does not limit itself to divorce judgments and applies generally. That statute provides:

“511.310. Damages in lieu of performance of judgment

When complete justice cannot otherwise be done, the court may, on the petition of the party entitled to the benefit of a final judgment, cause an inquiry to be made by a jury of the amount of damages which ought to be paid in lieu of the performance of the judgment, and may render a judgment for the damages so assessed, and award execution thereon.”

Perhaps an advisory jury would suffice instead of a full-blown jury trial.

In any event, 511.310 may be a viable and effective alternative to actions for contempt of court and conversion of property.

Kurt H. King

Law Office of Kurt H. King, 20 E. Franklin, Liberty, Clay County, Missouri


Family Law–Child Custody, Support, Visitation, Dissolution of Marriage, Modifications, Paternity

Personal Injury, Workers’ Compensation, Chapter 7 Bankruptcy, General Matters

September 30, 2013

Child Must Have Been Incapacitated At 18 For Child Support To Continue

Filed under: Divorce,Family Law,Support — kurthking @ 8:52 pm
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When does a parent pay child support for a child over age 18 but unable to care for himself/herself?

In Bright v. Bright989 S.W.2d 196 (Mo. Ct. App. S.D. 1999), the child did not become disabled until he became mentally ill during his first semester in college.   The child withdrew from college before the end of that semester and father ceased paying child support.   The child committed suicide over a year later–two months before his 22nd birthday–being incapacitated and unable to provide for his necessities due to his illness.  The mother later sued the father for child support for the months after the child withdrew from college, funeral and medical expenses of the child, and her attorneys fees.  The trial court compassionately awarded mother the relief she requested but the court of appeals reversed, taking it all away except the attorneys fees award.

The appellate court found little or no evidence that the child was incapacitated at age 18.  Father’s duty to continue to pay child support after the child reached age 18 was based solely upon the child attending college.  When the child withdrew from college that basis for father to continue to pay child support ceased.

Looking to Missouri’s 452.340 (subsections 3 and 4), the court found no intent that Missouri lawmakers intended to restart child support after it terminates by law.  Had the child simply gone on work a job after turning 18, no one would argue that a parent should have to recommence paying child support if the child later became incapacitated.  Likewise, no child support would be due from a parent if a 50, 60, or 70 year old child of that parent became incapacitated.  In order that the law be uniformly fair, the court could not in good conscience give the mother of the mentatlly incapacitated child in this case any back child support for those months after the obligation to support the child terminated by law.

Thus, the court of appeals reads 452.340.4 as granting a court the power to order child support of a mentally or physically incapacitated child to continue ONLY IF the child is so incapacitated on his or her 18th birthday.

As for the child’s medical and funeral expenses, the court found no Missouri law obligating a parent to pay for the such expenses of their child when that child is no longer a minor.

But the court left in place the trial court’s award of attorneys fees in favor of wife.  Given the novel questions of law, and the father’s much greater income, the court of appeals found no abuse of discretion in the award of fees to mother.

Kurt H. King

Law Office of Kurt H. King, 20 E. Franklin, Liberty, Clay County, Missouri 64068


Family Law, Divorce, Modifications, Paternity; Child Support, Visitation, & Custody

Personal Injury, Workers’ Compensation, Chapter 7 Bankruptcy for Debtors

June 14, 2013

Child Support In Missouri When Neither Parent Has Custody

Filed under: Custody,Divorce,Family Law,Paternity,Support,Uncategorized — kurthking @ 2:01 pm
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When the child is a minor and neither parent has custody, a case for child support can be initiated for the child by a state agency, a guardian, or third person providing support as next friend for the minor child.

But what about an adult son or daughter over the age of 18 in college living with neither parent?  While child support generally continues until the the child reaches age 21 for those who go on to college or other certain other post-high school education, who can bring a case in court for support of the adult child not yet 21 who left both parents behind (or vice versa) for whatever reason and is taking the required class load and working part-time?

First, can a parent file for the other parent to pay support when the child lives on his/her own or with third persons?

Law:  Where an adult child not yet 21 years of age is not living with either parent–i.e., on their own or living with friends–and attending college or such, and neither parent is making a financial contribution to the child’s expenses, then neither parent is sufficiently affected by the non-payment of child support by the other so as to be able to sue for child support from the other parent.  See Higginbotham v. Higginbotham, 362 S.W.3d 34, 36-37 (Mo. Ct. App. S.D. 2012) (daughter could not sue for child support ordered paid by mother to the grandmother).

And see Denton v. Sims, 884 S.W.2d 86, 89 hn. 5 (Mo. Ct. App. E.D. 1994), where the court of appeals reversed the trial court by ruling that the mother was not entitled to retroactive child support for one of three children  “for a period of time when she was not supporting daughter and daughter was not living with her.”  The daughter lived with a third-party and mother then made “no financial contribution to her upbringing.”

Second, if the parents cannot sue, can such an adult child entitled to support sue one or both parents in those circumstances?

Despite a dearth of Missouri cases on this point, there seems to be no reason why the adult child could not sue in his or her own name for support just as an adult could bring other cases in court.  But, this does not appear to be happening as a practical matter.  Presumably, adult children having flown or been kicked out of  the family nest are not of the mindset to turn back and sue a parent for support.  Maybe it is pride, but certainly it is psychologically difficult to sue to your parents.  And so, while it can happen, it doesn’t.

Lastly, if the lot of such an adult child not yet 21 trying to make it in the world and get a college or similar education, without support from the parents, seems unfair, REMEMBER: life is not fair, and Missouri law does not require parents still married to support their children after high school either.  For some reason, divorced parents can be ordered to pay support during college generally until the child turns 21, but married parents need not.  One of life’s little injustices?

Kurt H. King

Law Office of Kurt H. King, 20 E. Franklin, Liberty, Clay County, Missouri 64068


Family Law, Personal Injury, Workers’ Compensation, General Matters

May 22, 2013

The General Rule on Maintenance in Missouri

Filed under: Divorce,Family Law,Litigation,Support — kurthking @ 9:38 pm
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The recent May 7, 2013, opinion ED98727 out of the Eastern District of the Missouri Court of Appeals in In re the Marriage of John P. McMillian and Susan I. McMillian, follows established Missouri law on  how maintenance (formerly called alimony) is to be awarded by Missouri courts in divorce cases.

Here the husband enjoyed a substantial income while the wife’s income had diminished with no real signs of improvement in the future.  Not having settled the issue of maintenance, the parties tried the case to the court in a bench trial.  The trial judge awarded maintenance but limited it to three years and declared it to be non-modifiable.

The Eastern District reversed as it found no or insufficient proof that the wife’s income would increase by three years time.  Accordingly, the court of appeals ordered that such maintenance shall be paid indefinitely but that the maintenance shall be modifiable so that the husband may move to modify the maintenance award should the financial circumstances of the parties change significantly in the future.

This case illustrates Missouri case law holding that to limit the duration of maintenance there must be adequate proof that the financial situation of the parties will definitely change at a certain point in the future.   Lacking such proof, trial courts are not to set a time limit, unless the parties agree on one.

So if you want to limit the time that you will have to pay maintenance, try to reach an agreement which may well mean that you will have to sweeten the pot by offering your spouse more maintenance than the judge may order so that he/she will agree to a cut-off date.  This is a dangerous issue to take to trial so try to settle it.


Kurt H. King

Law Office of Kurt H. King, 20 E. Franklin, Liberty, Clay County, Missouri 64068


Family Law–Divorce, Modifications, Child Custody, Support & Visitation, Paternity

Personal Injury, Workers’ Compensation, Chapter 7 Bankruptcy

May 7, 2013

SSI For A Disabled Child Is NOT Credited Against Child Support

Filed under: Divorce,Family Law,Paternity,Support,Uncategorized — kurthking @ 5:16 pm
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Previous posts speak of the non-custodial parent receiving a credit against that parent’s child support obligation in the amount of Social Security Disability paid for the child on account of the obligated parent’s disability.  And, that a credit for SS Disability is not granted the obligated parent when SS Disability is paid for the child on account of the CUSTODIAL parent’s disability.

BUT what about when the child is disabled and receiving Supplemental Security Income (SSI) payments from Social Security due to the child’s own disability and not that of either parent?

Both the Western and Eastern Districts of the Missouri Court of Appeals rule that the parent paying child support is not entitled to a credit against his or her child support obligation for SSI paid due to the child’s disability.  Lewis v. Dept. of Social Services, 61 S.W.3d 248, 258 (Mo. Ct. W.D. 2001); Malawey v. Malawey, 137 S.W.3d 518, 528 (Mo. Ct. App. E.D. 2004).

The courts reason that SSI paid on the child’s account due to the child’s disability merely supplements in order to defray the extraordinary cost of caring for a child with disability.  Too, such SSI  is paid on account of the child, disconnected from the Social Security account of the parent obligated to pay child support.

So, a credit against child support due to SSI on account of the child’s disability is not happening in Missouri.

Kurt H. King

Law Office of Kurt H. King, 20 E. Franklin, Liberty, Clay County, Missouri 64068


Family Law–Divorce, Modification, Paternity, and Child Custody, Support, Visitation

Personal Injury, Workers’ Compensation, and General Matters

March 19, 2013

50/50 Custody and Child Support in Missouri

Filed under: Custody,Divorce,Family Law,Paternity,Support — kurthking @ 8:44 pm
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Times have changed since my previous post on 50/50 custody.  It is now the rule and not the exception in Missouri.  Lawmakers have moved on since the former days of one parent having primary or residential custody, with the other parent having alternate weekends, holidays, and weeks during the summer.

Kurt H. King

Law Office of Kurt H. King, 20 E. Franklin, Liberty, Clay County, Missouri 64068


Family Law–Dissolutions, Modifications, Child Support/Custody/Visitation, Paternity

General Litigation and Matters

Missouri Grandparent Visitation Under 452.402

Filed under: Custody,Divorce,Family Law,Paternity,Support — kurthking @ 8:17 pm
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At a Clay County family law seminar last Friday (03.15.2013), Commissioner Roberts spoke on Grandparent Visitation in Missouri under much revised statute 452.404.   Our Commissioner apparently put a good deal of work into researching the background and status of this relatively involved law.  The gist of what I took from her presentation includes:

1.  Important to select the correct tool to proceed for grandparent visitation rights.  Use the wrong one at your extreme peril and likely defeat.  Choices include: 1) Motion to Intervene into a Dissolution of Marriage case; 2) Motion to Modify where this is already a judgment of dissolution; 3) separate action for grandparent visitation where, for example, one parent is deceased and the surviving parent denies visitation.

2.  If the parents are legally married, and living together with the child (not having filed for divorce or legal separation), the grandparents CANNOT file for visitation under 452.404 even if unreasonably denied all visitation with the grandchildren.

3.  When a denial is “unreasonable,” and what visitation is “reasonable,” is undefined and far from clear.

4.  The Commissioner  reads 452.404 as requiring in all cases that unreasonable denial of visitation have run for 90 days or more.  Otherwise, the court lacks jurisdiction and the case may well be dismissed.  The statute is unclear but the Commissioner is probably right.  Simply put, if the denial is not unreasonable and has not run for at least 90 days, do not file for grandparent visitation.

5.  Step-grandparents have no right to use 452.404 but may try to proceed for visitation as a “third party” under 452.375.

6.  Older cases allowed grandparents of children born out of wedlock to obtain visitation rights.  Commissioner Roberts opines that the new version of 452.404 limits such grandparent visitation actions involving out of wedlock grandchildren to only cases where a parent dies and the grandparents of the deceased parent are unreasonably denied visitation with the grandchildren; OR, the grandchild lived with the grandparent the necessary time frames AND the grandparent is unreasonably denied visitation for 90 days or more.

7.   As a broad general rule, there is no room for grandparent visitation motions to intervene in a case to adopt the grandchildren.  Rare exception was once made where the grandparents had already been granted visitation rights (in a paternity case) which the court found were NOT terminated by the subsequent adoption case.  There is also the alternative route of seeking generic third party rights through a 452.375 action.

8.  In probate actions by a grandparent for guardianship of the grandchild, a settlement whereby the grandparents dismiss in exchange for an order of visitation rights runs considerable risk.  In Clay County, the court finds that it has NO equitable rights to order such grandparent visitation rights and 452.404 does not apply in probate settings.  Clay County would say that it cannot grant the petitioning grandparents visitation as all they can seek there is guardianship and to also be appointed conservator.    Thus, such a visitation order would be void ab initio in Clay County as was also the case in the case of In the Matter of DCO and AOD, 239 S.W.3d 714 (Mo. Ct. App. S.D. 2007).  Jackson County begs to differ, however, contending that it has the equitable power to order grandparent visitation in such an instance.

9.  Note that grandparent visitation is a creature of statute and cannot survive absent specific statutory authority.

10.  Again, 452.404 does NOT apply to probate proceedings.

11.  A mere 2 hours every 90 days has been found to be sufficient grandparent visitation.  Is a grandparent visitation case worth the time and trouble?

12.  Commissioner Roberts provided a good working outline on this subject and presumably would share it with interested counsel.


Kurt H. King

Law Office of Kurt H. King, 20 E. Franklin, Liberty, Clay County, Missouri 64068


Family Law–Dissolutions, Modifications, Child Support/Custody/Visitation, Paternity

General Litigation and Matters

January 16, 2013

Discharge in Bankruptcy Of Debts Ordered Paid in a Divorce or Legal Separation Setting

Filed under: Divorce,Family Law,Litigation — kurthking @ 11:03 pm
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While no longer “breaking news,” cases continue to proceed to court over what happens to an ex-spouse who fails to pay debt he/she was ordered or agreed to pay in connection with a divorce or legal separation proceeding under Missouri law.

One such recent case is Henderson v. Henderson, No. ED98357 (Eastern District Slip Opinion Filed December 26, 2012).  There the former wife filed a motion to hold her ex-husband in contempt for failure to pay a line of credit debt that he agreed to pay in a dissolution settlement agreement and the resulting court judgment of dissolution of marriage.   Instead of paying off the debt as ordered, this man filed Chapter 7 bankruptcy and was granted a discharge of that debt–meaning that the creditor could no longer collect against the ex-husband.

But the creditor could proceed against the former wife to the extent that she was jointly obligated on the debt.  The opinion indicated that the line of credit creditor was attempting to collect from wife but apparently had not yet been successful in those attempts.  There is no mention of the creditor having sued or obtained a judgment against the former wife.  However, the former wife requested an award for attorney fees and costs in her case to hold her ex-husband in contempt of court.

At the trial, the judge  found that the ex-husband was not in contempt for non-payment of the line of credit indebtedness because, “the balance due US Bank is not owed by [Husband] to [Wife] or to US Bank.”  (See page 4.)  Nor did the trial court award attorneys fees and costs on the former wife’s claim for such in the contempt case.  On the other hand, the trial court did order the ex-husband to pay wife [not US Bank]  $9,600 which turned out to approximate roughly half of the balance of the line of credit discharged in the ex-husband’s Chapter 7 bankruptcy.

Both parties appealed the trial court’s decision, the ex-husband complaining that he should not have to pay former wife $9,600 when she never paid a dime of the balance to US Bank on the line of credit.  And, wife of course charged the trial court with error in not holding the ex-husband in contempt to force him to pay her all the line of credit debt and her attorneys fees and costs incurred in the contempt case.

On appeal, the Eastern District easily found in favor of  the former wife in holding the entire Line of Credit is nondischargeable pursuant to 11 USC section 523 (a)(15) which provides that a Chapter 7 bankruptcy discharge–

“[D]oes not discharge an individual debtor from any debt–

. . .

(5) for a domestic support obligation;

. . . [or]

(15) to a spouse, former spouse, or child of the debtor and not of the kind described in paragraph (5) that is incurred by the debtor in the course of a divorce or separation

or in connection with a separation agreement, divorce decree or other order of a court of record, or a determination made in accordance with State or territorial law by a

governmental unit.”

And this is apparently true even though the ex-spouse fails to file any objection to discharge of the marital debt in the bankruptcy case as the former wife failed to file any such objection to her ex-husband’s bankruptcy case.

The appellate court then summarily rejected the ex-husband’s argument that the former wife failed to make a sufficient case of contempt, and ordered the case sent back to the trial judge for reconsideration of whether husband was in fact in contempt of court and the former wife’s attorney’s fees.

So, this case makes clear that one spouse–the former wife in this case–need not file objection in the other spouse’s bankruptcy case in order to prevent discharge of such marital debt.  Rather, the “marital debt” is not dischargeable even when no objection to discharge is filed.

And while that reasoning seems clear, what about the holding that the debtor owes his or her former spouse the full amount of the discharged debt when that former spouse has not paid a penny of the debt in issue and has not even been sued to collect the debt, and there is no judgment against her to pay any of the debt?  For if the ex-husband now pays the full amount of the debt to the former wife  to avoid jail for contempt of court, there remains no assurance that former wife will use all or even part of those monies to pay the creditor.  Or, perhaps, the former wife negotiates with the marital debt creditor so that she pays only part of the debt in return for a full release of the debt, and by so doing pockets some of money for herself.  The trial court in this case may have been best situated to assess how “judgment proof” the former wife is and craft judgment accordingly so that a windfall to the former wife did not result at the unfair expense of the ex-husband.

As a practical matter, the ex-husband may find himself better off to negotiate quickly with US Bank to pay 50 cents on the dollar, for example, in order to get a full release of himself and his former wife on the marital line of credit debt.  Maybe that is the real lesson in this case–assuming he has the money to pay.

Kurt H. King

Law Office of Kurt H. King, 20 E. Franklin, Liberty, Clay County, Missouri; 816.781.6000

Domestic Relations Law and General Practice–Divorce, Modifications, Paternity, Child Support, Custody, & Visitation

April 20, 2012

Does the ex-Spouse get the Ford Retirement?

Fact-set:  Ford worker dies soon after a contested Missouri divorce.  His Ford retirement benefits include money in the TESPHE savings plan and a group life insurance benefit.  During the divorce the Ford worker changed the beneficiary on the life insurance without the wife’s consent.  The beneficiary on the TESPHE never changed and the ex-spouse is still the named beneficiary.  What happens?

Like many states, Missouri law includes a statute that provides that upon divorce, the ex-spouse loses all rights as a named beneficiary of property owned by the other spouse.  See VAMS 461.051.1.  But while this law may bar the ex-spouse as beneficiary on an IRA (an example of a non-ERISA asset), a Ford worker’s retirement includes (1) the TESPHE savings plan, and/or (2) a pension plan–both of which are governed by federal law known as ERISA (Employee Retirement Income Security Act), as later modified by the REA (Retirement Equity Act).  ERISA preempts/overrides state law on matters sufficiently related to ERISA–including Missouri’s section 461.051.1.  See Egelhoff v. Egelhoff, 532 U.S. 141 (2001).

Note that the group life insurance provided by the employer is a welfare plan–not a retirement plan and thus not governed by ERISA or REA federal law.

Key questions:  (1) can the Ford worker validly change (before the divorce is final) the beneficiary on the life insurance benefit without the spouse’s consent?; and (2) is the ex-spouse entitled to the balance in the TESPHE savings plan since the ex-spouse remains the named beneficiary–even though the divorce judgment awarded all the retirement to the ex-husband/employee?

Generally, Missouri law and ERISA’s 29 U.S.C. section 1055 seems to allow change of beneficiary of LIFE INSURANCE during the marriage without the spouse’s consent.   So the Ford employee’s change of beneficiary on the employee life insurance benefit from spouse to adult son appears to be valid and lawful where the welfare plan and the underlying life insurance policy itself do not expressly prohibit.  See Sun Life Assurance Co. v. Mae Bell Benjamin, Case 1:09 CV 2452 (U.S. Dist. Ct., Northern District of Ohio, Eastern Division 2010). .

However, as to the FORD RETIREMENT, federal ERISA law governs.  DURING THE MARRIAGE, 29 U.S.C. section 1055 protects the worker’s spouse from being left high and dry form the employee changing the beneficiary on the retirement while married, mandating by law that the spouse gets at least half of the pension (the “qualified joint and survivor annuity) UNLESS (1) the spouse consents in a very specific writing that is notarized or witnessed by a plan representative; or, (2) by a Qualified Domestic Relations Order (“QDRO”) used in the case of divorce.  See subsection (c)(2)(A)  of section 1055 as to how a spouse may waive her interest in the worker’s pension plan.   And see 29 U.S.C. section 1056(d)(3) as to alienation/transfer of the spouse’s share by means of a QDRO.  Simply put, Congress crafted ERISA to grant the worker’s spouse at least half of the pension plan benefits, and to prevent the transfer or taking of the spouse’s share of the pension plan benefits without the spouse’s consent.

But what about cases where the divorce court awards the retirement to the employee, only for the employee ex-spouse to fail to change the beneficiary after the divorce?  A pair of U.S. Supreme Court cases squarely answer the question.

First, in Egelhoff v. Egelhoff, 532 U.S. 141 (2001), the high court held that pension plan administrators need only apply the language of the plan and pay the money to the last named beneficiary.  In so ruling, the Court observed that payment of pension plan benefits is a central aspect of ERISA plans and that it is unduly burdensome to saddle plan administrators with the task of figuring out the various laws that nearly all 50 states have to prevent the ex-spouse from getting the pension plan money after the divorce.  The Court focused on the need for the administrator to simply apply the pension plan’s provisions to determine the proper payee to save the time and expense of ascertaining  myriad state laws and the innumerable interpleader lawsuits that would result to protect the administrator from double liability due to paying the wrong payee.  So, with qualified pension plans, ERISA preempts state laws such as Missouri’s that attempt to cancel out the ex-spouse as the beneficiary after divorce.  Consequently, if the employee-spouse fails to change the  beneficiary after the divorce and leaves the now ex-spouse as beneficiary, the ex-spouse is entitled to employee’s pension plan monies.

Lastly, what of provisions commonly found in divorce settlement agreements which are often incorporated or quoted in the court judgments dissolving marriages–typically providing that each spouse forever waives all interests in the property awarded to the other party?  This question the Supreme Court answered in Kennedy v. Kennedy, 129 S.Ct. 865 (2009), involving a pension plan, where the Court held that the plan administrator need only follow the dictates of the plan on which the employee left the ex-spouse as beneficiary after divorce.  The plan administrator is free to IGNORE language in the divorce decree that the wife “is . . . divested of all right, title, interest, and claim in and to . . . [a]ny and all sums . . . the proceeds [from], and any other rights related to any  . . . retirement plan, pension plan, or like benefit program existing by reason of [William’s] past or present or future employment.”   Hence, the boilerplate waiver language in many divorce settlement agreements and judgments does not preclude the ex-spouse from receiving the proceeds of the pension plan on which she was left as named beneficiary after divorce.

Of note on page 15 of the Kennedy opinion is the Court’s statement that:  “ERISA forecloses any justification for enquiries into nice expressions of intent, in favor of the virtures of adhering to an uncomplicated rule: ‘simple administration, avoid[ing] double liability, and ensur[ing] that beneficiaries get what’s coming quickly, without the folderol essential under less-certain rules.'”

And on 17:  “What goes for inconsistent state law goes for a federal common law of waiver that might obsure a plan administrator’s duty to act in accordance with the documents and instruments.'”

“And this case does as well as any other in pointing out the wisdom of protecting the plan documents rule.”  (Also on page 17 of the opinion.)

In summary after considerable research of Missouri and federal common law, mind-mashing ERISA statutes, and U.S. Supreme Court opinions–the ex-spouse as cast above is the last named beneficiary on the TESPHE pension plan and as such entitled to those funds since there was no QDRO or consent divesting the ex-spouse as beneficiary.  If you are an employee with retirement or pension, make absolutely sure that you change the benficiary away from the ex-spouse unless yours is the rare case where you want the ex-spouse to remain as beneficiary.

Kurt H. King

Law Office of Kurt H. King, 20  E. Franklin, Liberty, MO 64068


divorce & modification, child cusotdy and visitation, support and paternity

personal injury & workers’ compensation, bankruptcy, and probate.

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