MARRIED TO THE STATE – THE NEVADA SUPREME COURT CLARIFIES NON-EMPLOYEE SPOUSES’ RIGHTS IN THE AREA OF PERS PENSION PLANS
If you or your spouse is a Nevada public employee and you are divorced, currently divorcing, or are considering a divorce, then you should be aware that the Nevada Supreme Court has just recently clarified/altered your rights as they relate to you or your spouse’s Public Employees Retirement System (“PERS”) pension plan. On October 2, 2014, the Nevada Supreme Court issued its opinion in Henson v. Henson, in which it considered whether a non-employee spouse is entitled to survivor benefits if, in a divorce decree, he or she is allocated a community property interest in the employee spouse’s PERS pension plan. The court also considered whether the non-employee spouse must file a motion with the family court to immediately begin receiving his or her community property interest in the PERS pension plan when the employee spouse has reached retirement eligibility but has not yet retired.
As to the first question, the Nevada Supreme Court held that, unless specifically set forth in the divorce decree, an allocation of a community property interest in the employee spouse’s pension plan does not also entitle the non-employee spouse to survivor benefits. The Nevada Supreme Court further concluded that, because there are varying times at which a non-employee spouse may elect to begin receiving his or her portion of the community property interest in the employee spouse’s pension benefits, the non-employee spouse must first file a motion in the district court requesting immediate receipt of those benefits.
Non-employee spouses, you are now on notice. The Nevada Supreme Court now requires the non-employee spouse to be much more proactive in how the division of a PERS pension is to be divided upon divorce. If you are to receive survivor benefits, then make sure that those benefits are articulated in your divorce decree. Do not wait to address these issues in a Qualified Domestic Relations Order. Note also, that if you expect to receive your community share of the retirement when your spouse reaches retirement age (even if your spouse continues to work), then you need to take action. It is up to you to file a motion with the family courts. Your right to payments from your public employee spouse will not accrue until you do.