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mmdesq
mmdesq, Family Law Attorney
Category: Family Law
Satisfied Customers: 460
Experience:  Attorney with 13 years experience.
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My company has a deferred compensation program that allows

Customer Question

My company has a deferred compensation program that allows me to defer up to 50% of my salary and up to 90% of my bonus for pretty much as long as I want up until when I leave the company. Historically, I have deferred 90% of my bonus. When I signed my
divorce papers in August following a two year separation my ex and I agreed on how we would divide up my past deferred compensation plans when they are paid out. We did not contemplate future annual deferred compensation plans in our agreement, but there is
a fixed percent that I am supposed to pay of any bonus income that I receive. It is now time for me to make my annual election as to how much, if anything, I'd like to defer. My question: When do I owe her the mandated percentage of my bonus should I chose
to defer receipt? Notes: - As the Deferred Comp program says, I am not guaranteed to receive my deferred comp. In the case of financial insolvency of the company, I would be come a creditor. - Spousal support terminates for me in March of 2017 and child support
after 2031 so if I don't receive the bonus until after March 2017, would I owe spousal support on it? I know that I would owe child support on it if I received it during the child support period. - What is challenging me is that if I owe
Submitted: 1 year ago.
Category: Family Law
Expert:  mmdesq replied 1 year ago.

Good Morning,

I will try to best answer your question.

Marital property is what is divided in divorce proceeding. This requires identifying what marital property is in the marital estate subject to division. Marital property is define as any asset which is acquired from the date of marriage until the date of separation. There are very few exceptions to that rule most notable is inheritance that is not commingled with other marital property. Hence your retirement benefits with your company earned from the date of the marriage until the day of the separation is part of the marital estate that must be divided. I see the issue more about when included versus the percentage. For purposes of calculating child support those funds will be included. Since it is included as part of the child support calculation they will not also be subject to division as that would be considered double dipping or counting the same funds against you twice. Once for determining support and once for the division of marital assets.

I hope that this information and advice is helpful and I wish you the best of luck reaching a resolution for this matter.

Customer: replied 1 year ago.
Your response did not tell me anything I did not already know or really address my question. (Maybe part of my question was cut off.)I am asking whether or not I can make the choice to defer my 2015 bonus which was earned entirely after I was separated, and if I do that, do I owe my ex a share of that bonus given that I may not receive it (if I receive it) until after spousal support runs out and, if I stay at my company long enough (doubtful), after child support runs out? My agreement says that I am supposed to pay her a share of any bonus income that I receive within a period after receipt. The nuance here is that by deferring my bonus, I don't receive it so one argument would be that I don't have to pay her until I do receive it.
Expert:  mmdesq replied 1 year ago.

Thank you for the further clarification. I did not fully understand your question initially. A strong argument can be made that if the agreement use the terminology "received" as opposed to "earned" deferring the bonus would shield it from spouse if it is received after period for which she has a claim.

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