A Carluzzo Rochkind & Smith note: Following is an article by Virginia Lawyers Weekly. We did not handle this case, but it brings up important marital points your divorce lawyer should be familiar with. For more than 30 years our divorce lawyers in Manassas have helped clients with such matters in Prince William County, Fairfax County, Woodbridge, and throughout Northern Virginia. If you have any questions or would like to schedule an appointment, please contact our law firm at (703) 361-0776.
Domestic Relations: Husband not required to name wife as pension beneficiary
By Virginia Lawyers Weekly – 5/12/2024
Where the parties’ marital settlement agreement did not require the husband to name the wife as the beneficiary of the survivor benefit plan connected to his pension, the circuit court erred when it entered a qualifying court order imposing this requirement.
Background
David Renberg appeals the circuit court’s entry of a qualifying court order, or QCO, dividing his military pension. He argues that the circuit court erred entering the QCO because the QCO required him to list Julia Renberg as the beneficiary of the survivor benefit plan, or SBP, connected to his military pension in contravention of the terms of the parties’ marital settlement agreement, or MSA, and the divorce decree. He also argues that the circuit court was without jurisdiction to enter the QCO because the QCO modified the substantive terms of the divorce decree in violation of Rule 1:1.
Analysis
Paragraph 17 of the MSA, titled “Retirement Accounts and Pensions,” provides that in the consent order “the Parties reached an agreement as to the division of the marital portions of their respective retirement accounts” and attached exhibits evidencing that agreement. Additionally, it said that the “[p]arties shall comply fully with all requests of Pamela Squires to implement said terms.” Nothing in the language of this provision, or any other provision in the MSA, requires husband to name wife as the SBP beneficiary. This provision simply incorporates the agreement reached by the parties in the March 8 consent order.
While the consent order does appoint Pamela Squires to assist the parties, it also sets out the parameters within which she is assisting. Under the consent order, she is to (1) calculate the marital share of each account listed in the exhibits, (2) calculate the “amount necessary to equalize the value” of the retirement accounts, (3) draft a written agreement “to effectuate the parties’ intent to equally divide the marital portions” of each account, and (4) prepare the documents and court orders to accomplish “the provisions of any written agreement.” Nothing in this language implicates the SBP.
Nor does the language of exhibit two, attached to the consent order, mention the SBP. It mentions that husband is already retired and thus in active pay status, and it suggests a proposed distribution of the account. But the exhibit does not list a proposed SBP beneficiary or even the current SBP beneficiary. In fact, the exhibit does not mention the SBP at all. Viewing the MSA and consent order together, there is nothing in either document that makes any kind of reference to the SBP. Nor is there anything in the language that could be considered a reference to the SBP.
Wife argues that paragraph 17 of the MSA required the parties to fully cooperate with Squires, and she argues that Squires prepared the QCO “based upon the information and agreements between the parties.” Specifically, she points to the March 3 email in which husband agreed to keep wife as the SBP beneficiary. The court finds this argument unpersuasive. Although husband may have agreed by email to maintain wife as the SBP beneficiary, that agreement is not reflected in the consent order or the MSA. And courts may not “rewrite contracts” or add terms that were not included by the parties.
Furthermore, paragraph 33 of the MSA states that the MSA “contains the entire understanding of the [p]arties,” and it invalidates “[a]ll prior agreements between the [p]arties respecting their property, support, and marital rights.” Whatever the parties may have initially agreed upon regarding the SBP, they did not include that term in the MSA, which constitutes their entire agreement. Both husband and wife are bound by the terms of the contract, and that contract did not require husband to name wife as the SBP beneficiary.
Thus, the QCO listing wife as the SBP beneficiary was a modification of, and not consistent with, the substantive terms of the divorce decree, and it did not fall within the limited exception to Rule 1:1 in Code § 20-107.3(K)(4). Because more than 21 days had passed since the entry of the divorce decree, and the order did not fall within the Code § 20-107.3(K)(4) exception, the circuit court did not have jurisdiction to enter the QCO naming wife as the SBP beneficiary.
Reversed, vacated and remanded.
Renberg v. Renberg, Record No. 1362-22-4, Apr. 23, 2024. CAV (unpublished opinion) (Atlee). From the Circuit Court of Prince William County (Swersky). William D. Ashwell (Ashwell & Ashwell, PLLC, on brief), for appellant. Jeff Evan Lowinger (Cheryl M. New; Melissa L. Schefkind; New & Lowinger, P.C., on brief), for appellee. VLW 024-7-131. 9 pp
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