In a recent 4-3 decision, Daniel v Daniel, Slip Opinion No. 2104-Ohio-1161, the Ohio Supreme Court held that unvested military benefits earned during marriage fall within the definition of marital property in Ohio Revised Code 3105.171 (A)(3)(a) and must be considered for division under Ohio Revised Code 3105.171 (C).

Justice O’Neill, writing for the majority, said the statute does not distinguish between vested or unvested retirement benefits. He noted that the Ohio Supreme Court in Hoyt v. Hoyt, 53 Ohio St.3d 177(1990) held that vested pension benefits are marital property.  However, the Court had never addressed unvested benefits in this context.

The decision further noted that most states hold that unvested retirement benefits accrued during the marriage constitute marital property subject to division.  The Court acknowledged that it may be difficult to ascertain the value of benefits that have not yet vested and may never vest.

The decision discussed two approaches to the division of pension benefits the courts have fashioned and concluded that the trial court in this case had enough information to make an equitable division of benefits.

The pension benefits in Daniel resulted from the husband’s enlistment in the National Guard.  Careful consideration is warranted for all potential retirement benefits when representing individuals in termination of marriage.