In Re Marriage of Lee: The trial court had found the non-modifiable maintenance adjustment clause unenforceable; the Court of Appeals reversed it.
By Christina A. Meserve and Charles E. Szurszewski
The parties were divorced in 2000. The decree of dissolution awarded to the wife “one-half of the husband’s Group Health Retirement benefits” subject to an attached QDRO. No QDRO was attached.
Eleven years later, the wife’s attorney sought entry of a QDRO to effectuate the terms of the decree. At issue was whether the wife’s interest was limited to the pension accrued during the marriage, or whether she was entitled to 50% of all of the husband’s Group Health Retirement benefits. Both the trial court and the Court of Appeals had no difficulty in concluding that the decree did not contemplate that the wife would receive any interest in the husband’s pension earned post-separation. In fact, the trial court awarded Civil Rule 11 sanctions against the wife’s attorney on that issue and the Court of Appeals affirmed.
A more troubling issue was raised by the separation contract entered into by the parties in 2000. It called for child support subject to a cost of living adjustment and non-modifiable maintenance subject to a cost of living adjustment. The court held the child support order void under long-established Washington law. However, the non-modifiable maintenance adjustment clause was a different matter. The trial court had found that clause unenforceable as well; the Court of Appeals reversed on that issue. While a court at trial could not have imposed a CPI adjustment clause on spousal maintenance, the parties were free to negotiate and agree to such a clause in their separation agreement.
Practice Tip: If no contemporaneous QDRO, make sure there is a letter as to that decision.
Christina A. Meserve and Charles E. Szurszewski practice family law in Olympia, Washington with the law firm of Connolly Tacon & Meserve.
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