HENSON VS. HENSON (RETIREMENT DIVISION)

Statutes cited

Key holdings

Practitioner summary

Cherry, J. (en banc). The Court held that, unless specifically set forth in the divorce decree, an allocation of a community-property interest in the employee spouse's PERS pension does not also entitle the nonemployee spouse to survivor benefits. Because a district court's interpretation of a divorce decree is a question of law reviewed de novo, Ormachea v. Ormachea, 67 Nev. 273, 217 P.2d 355 (1950), the Court construed the decree - which divided 'the pension' per the time rule and wait-and-see approach of Gemma v. Gemma, 105 Nev. 458, 778 P.2d 429 (1989), and Fondi v. Fondi, 106 Nev. 856, 802 P.2d 1264 (1990) - as not awarding a survivor beneficiary interest. Under NRS 286.551 and NRS 286.590, an employee spouse need not select a survivor-beneficiary option, so neither spouse automatically receives one; the only guaranteed benefit is the community interest in the unmodified service retirement allowance. The original QDRO thus improperly designated Kristin as survivor beneficiary, and the amended QDRO (calculating her share as if Option 1, so the employee spouse could designate another survivor without affecting her share) correctly effectuated the decree and was not an impermissible modification. Because a QDRO must conform to the decree, Shelton v. Shelton, 201 S.W.3d 576 (Mo. Ct. App. 2006), and NRS 125.155 applied only prospectively (post-decree), the Court affirmed on a correct-result-wrong-reason basis, Saavedra-Sandoval v. Wal-Mart Stores, Inc., 126 Nev. 592, 245 P.3d 1198 (2010). The Court further held that a nonemployee spouse must file a motion in the district court requesting immediate payment before he or she may begin receiving a share when the employee spouse is retirement-eligible but not retired, adopting In re Marriage of Cornejo, 916 P.2d 476 (Cal. 1996), and building on the demand requirement recognized in Gemma and Sertic v. Sertic, 111 Nev. 1192, 901 P.2d 148 (1995). Because Kristin never filed such a motion, Howard had no duty to pay her portion of his pension benefits since June 2003, and the district court properly denied her motion to reduce those amounts to judgment.

In plain language

Howard and Kristin Henson divorced in 1995. Their decree divided Howard's state pension (PERS) equally, using the 'time rule' and 'wait and see' approach from Gemma and Fondi. Years later, in 1999, a qualified domestic relations order (QDRO) was entered - at Kristin's request and without notice to Howard - that not only gave Kristin her share of the pension but also named her as Howard's survivor beneficiary, which prevented Howard from naming his new wife. In 2011 Howard asked the court to fix the QDRO. Kristin, in turn, asked to be paid the pension amounts she claimed she should have been receiving since Howard became eligible to retire in 2003. The Nevada Supreme Court, sitting en banc, ruled for Howard on both points. First, unless a divorce decree specifically says so, dividing a community-property interest in a pension does not also give the nonemployee spouse survivor benefits. The decree here divided only 'the pension' and did not award survivor benefits, so the QDRO wrongly made Kristin the survivor beneficiary; the amended QDRO (paying Kristin as if the unmodified benefit, so Howard could name another survivor without reducing her share) correctly carried out the decree. Second, when the employee spouse is eligible to retire but has not retired, the nonemployee spouse must file a motion in court asking to start receiving payments before any obligation to pay arises. Because Kristin never filed such a motion, Howard owed nothing for the years since 2003.