Perry v. Perry – Pensions and Double-Dipping in Spousal Support Awards

This case deals with a couple that had a lengthy marriage. The Husband had a significant pension which, at the time of this decision, was in pay. This poses a frequent problem in family law cases, as pensions that are in pay are often Double Dipped. That is, a pension is considered as an asset when parties conduct the Equalization of their Net Family Properties. This process effectively means that the party without the pension shares in its value. Then, when spousal support is calculated, that party (who is usually the spousal support recipient) also receives portions of the pension as this is the income the payor uses to pay their support. In this case, the husband retired and his income dropped from $77,000.00, which he earned through employment, to $42,000.00, which he earned from his pension. Both of these facts, the husband’s retirement and the decrease in his income, were deemed to be sufficient material changes to warrant a change in spousal support. The wife was not working at this time and, despite her health issues, the Judge found her able to contribute to her own support, if only on a part-time basis. Additionally, the husband was caring for one of the parties’ adult children who was living with schizophrenia and was unable to work. Despite the foregoing, Justice Rogin continued spousal support at the previously established quantum. In making this award, the Judge ignored the material change, the fact that this constituted double-dipping with respect to the husbands pension, and his caring for the couple’s son. This is likely because the wife was living dangerously close to the poverty line and, without continued support, would require welfare. Also, the husbands reduced income put him in a lower tax bracket, meaning that the provision of $1,200.00 per month in spousal support to the wife would only cost him $750.00 per month. This is an interesting case showing that the need of a spouse will supersede the Courts desire to avoid double-dipping with respect to pensions.
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