Once a Georgia divorce decree divides retirement benefits as you agreed, the division stands, and a court cannot rewrite it to fix a bad bargain or an impossible term.
The Court Cannot Substitute a Different Deal
In Killingsworth v. Killingsworth, 286 Ga. 234 (2009), the decree gave the wife half of the husband’s retirement account, payable through a qualified domestic relations order. A later contempt order substituted $1,850 in cash. The Georgia Supreme Court reversed, because turning the award “into a presently due cash obligation of $1,850” was “so contrary to the apparent intention of the original order as to amount to a modification.”
Even When the Term Cannot Be Performed
In Pollard v. Pollard, 297 Ga. 21 (2015), the wife was ordered to name her husband as survivor beneficiary of her pension, but she had already retired and the election could no longer be made. The trial court substituted $50,000 of life insurance, and the Supreme Court reversed, because the policy was not “in essence the same asset” as the survivor benefit.
Likewise, in Lockamy v. Lockamy, 302 Ga. 111 (2017), the “military retirement” the parties divided turned out to be disability pay that could not be divided. Six years later the trial court awarded alimony instead. The Supreme Court reversed, because a party who wants to change an incorporated agreement “must attack the judgment itself” within the three years OCGA 9-11-60 allows for a motion to set aside.
A Waiver Is a Waiver
In DeRyke v. Teets, 288 Ga. 160 (2010), each spouse waived “all of his or her right, title, and interest in and to any pension, profit sharing, or employee benefits plans of the other Party.” The wife died five days after the divorce without changing the beneficiary forms still naming her former husband. The Supreme Court held that the clause “operated as a complete waiver” of his designation, and her “inaction is insufficient to vitiate such an unequivocal waiver.”
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This post is a quick overview of the law and is not intended as legal advice. Please feel free to contact our office for a consultation if you have questions about this or any other legal aspects regarding your case!