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My wife wants to file for divorce and claim half of the value in my pension for the time (2.5 years) that we were married. She claims I can't make a counterclaim against her pension because she is already collecting it. She served in the military and received a medical release and a reduced pension.
The basis of her claim is that in her first marriage (which ended in divorce), she tried to claim half of her then-husband's pension but was told she could not because he was already collecting it. Her ex-spouse was in exactly the same situation she was in the sense that he served in the military for a time and was transferred to another federal employer, and began receiving a partial disability pension based on the injury he incurred while in the military.
I've read the Pension Benefits Division Act, and it appears to be silent on the matter.
However, the Public Works and Government Services (PWGSC) website has this to say about division of pensions:
"11. Are the plan member's pension benefits divided if the member is receiving a pension at the time of division? Yes. The member's pension benefits are subject to division regardless of whether or not the member is receiving monthly pension benefits. The maximum transferable amount is based on the value of future pension payments only; payments made to the member prior to division are not included in the value. After division, the plan member's monthly pension benefits will be reduced to reflect the division. In no case, however, are the member's pension benefits for the period subject to division reduced more than 50% of their value before division."
(italics mine)
Does anybody know how the courts treat situations such as these? I presume the information contained in the PWGSC site is fundamentally accurate, although I could imagine situations where case law shows a different perspective.
The basis of her claim is that in her first marriage (which ended in divorce), she tried to claim half of her then-husband's pension but was told she could not because he was already collecting it. Her ex-spouse was in exactly the same situation she was in the sense that he served in the military for a time and was transferred to another federal employer, and began receiving a partial disability pension based on the injury he incurred while in the military.
I've read the Pension Benefits Division Act, and it appears to be silent on the matter.
However, the Public Works and Government Services (PWGSC) website has this to say about division of pensions:
"11. Are the plan member's pension benefits divided if the member is receiving a pension at the time of division? Yes. The member's pension benefits are subject to division regardless of whether or not the member is receiving monthly pension benefits. The maximum transferable amount is based on the value of future pension payments only; payments made to the member prior to division are not included in the value. After division, the plan member's monthly pension benefits will be reduced to reflect the division. In no case, however, are the member's pension benefits for the period subject to division reduced more than 50% of their value before division."
(italics mine)
Does anybody know how the courts treat situations such as these? I presume the information contained in the PWGSC site is fundamentally accurate, although I could imagine situations where case law shows a different perspective.
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