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Ely, Counselor at Law
Category: Family Law
Satisfied Customers: 11798
Experience:  Private practice with focus on family, criminal, PI, consumer protection, and business consultation.
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What legal recourse do I have value of survivorship when

Customer Question

What legal recourse do I have for the value of survivorship when this election was made on my spouse's beneficiary declaration at the time of his retirement with the City of San Jose Fire Dept which was done during the marriage prior to our separation/divorce proceedings that is now in progress. The plan will not consider me the surviving spouse if divorced for payment as alternate payee but will consider me surviving spouse if legally separated since the language in the plan says that I have to be both the spouse at the time of the election and time of death to qualify for their payment of this benefit. We have had the value of the pensions, mine and his, evaluated by an actuary. He will get survivorship from my plan regardless of status of divorce versus legal separation paid by my employer for the time we were married.My question is does he have an obligation to pay me the value of survivorship since he made the commitment (election) during the marriage at the time of retirement as is evidenced by the election he made as my being the beneficiary upon his death should he precede me. The value of survivorship has been determined by the actuary so it is known. The City will pay me the benefit if he precedes me in death in a legal separation. Can I use the actuary information to request the payment in marital assets/cash for the value of survivorship in a divorce scenario? No one else will qualify for the benefit since we were married at the time he was hired and retired from the city. There is no proration scenario of payment to a second wife should he chose to remarry since no one would not qualify according to their guidelines. It seems to me the financial loss to me can be demonstrated with the analysis done by the actuary showing the loss in a divorce scenario affecting benefits I earned during the marriage.What suggestions do you have that can be legally binding to provide me with the value of the benefit I earned during the marriage? It's been a very long marriage, 37 years, and the benefit is crucial to me in my last retirement years.Has this issue been resolved in the courts or appellate courts for the payment of benefits earned during the marriage and elected during the marriage for a spouse if divorced as is the case in this scenario. My lawyer seems to be more responsive to my claims if I can show precedence in the courts for asset allocation or other legally enforceable agreements that provide the equivalent of benefits earned during the marriage.
I'm not sure how to search for case law to address/support payment of benefits earned during the marriage but would lose with divorce. Your expertise in referencing existing case law for review or directing me on how to find case law relevant on the matter would be most appreciated. My searches so far are not effective in finding precedent.
Submitted: 1 year ago.
Category: Family Law
Expert:  Maverick replied 1 year ago.

Welcome to Just Answer (“JA”)! My name is Maverick.

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