Is my wife entitled to half of my pension if I was forced to retire from police work due to a line of duty knee injury?

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Is my wife entitled to half of my pension if I was forced to retire from police work due to a line of duty knee injury?

I have been separated from my wife for over a year now. We have not yet filed for legal separation. She already has a new boyfriend. We have no intentions whatsoever of reconciling. I retired from being a police officer in early 2010 on a medical pension due to a line of duty injury. If we go to court is she entitled to half of the medical pension? She works full-time. I now work part-time for only $13 an hour. We have 2 kids and share custody 50/50. Should I speak with a divorce attorney? In Phoenix, AZ.

Asked on November 28, 2010 under Family Law, Arizona

Answers:

M.D., Member, California and New York Bar / FreeAdvice Contributing Attorney

Answered 11 years ago | Contributor

In a divorce, courts are divided about whether disability payments are marital or separate property. One view is that they are separate property since they are compensation for a personal injury, which involves injury to a person as well as pain and suffering. The other view is that these payments are a fringe benefit of employment that earned during a marriage and a form of deferred compensation.

More and more courts are performing a "purpose analysis".  This involves separating the disability benefits into a retirement component, which is marital; and disability component, which is separate (except to the extent that the benefits are compensation to the marital partnership for lost earnings during the marriage).

Note:  Many types of disability benefits are paid only after the employee waives retirement benefits. In such cases, courts have ruled that anything above what the party would normally have received is the disability component. In this way, the retirement benefit portion of the benefit can be treated as it would in any divorce settlement.

At this point, you need to consult directly with a divorce attorney in your area. They can best advise how local courts view such payments.


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