[guest author: Matthew Lundy]

The issue of what constitutes the “marital portion” of a retirement plan in Florida is not always clear.  Compare Boyett v. Boyett, 703 So. 2d 451 (Fla. 1997) with Nix v. Nix, 930 So. 2d 711 (Fla. 1st DCA 2006); compare also Blaine v. Blaine, 872 So. 2d 383 (Fla. 4th DCA 2004) with Pullo v. Pullo, 926 So. 2d 448 (Fla. 1st DCA 2006).  The use of generic marital portion language related to a retirement plan does not constitute a benefit to either party, and especially if the matter at hand is contentious.  Although it is sometimes believed that such language benefits one party of another, several circuit and appellate-level cases have resulted in the court interpreting non-specific settlement agreement language to actually favor the non-participant. 

As a rule of thumb, the more specific you are in your settlement agreements, the more you will be able to hash out issues related to these plans prior to entering into those agreements.  In other words, the more specific you are, the more likely it is that issues will be resolved prior to entering into a settlement agreement, versus a post-judgment litigation over the meaning of  “marital portion” in your settlement agreement.  Thus, if you want to include or exclude cost-of-living adjustments or your passive gains/losses, the best practice is to specifically state whether you want to include or exclude those things.