Compelling Disclosure of Information About Retirement Benefits in a Missouri Divorce

A Missouri divorce case requires both spouses to account for everything they own, and if possible, determine how to divide the marital property between themselves. If the soon-to-be-ex-spouses cannot reach an agreement, the court will decide for them after a trial. Retirement benefits offered through employers, such as pensions, individual retirement accounts (IRAs), or 401(k) plans, are often subject to division in a divorce case, but the details can get complicated very quickly. Regardless of exactly how a retirement plan can be divided, both parties to the divorce and the court must have accurate information about the plan in order to complete the division. Missouri courts have the power to compel a party to disclose information about their retirement plan. In 2019, the Missouri Supreme Court ruled on a dispute over this issue, in which a spouse with military retirement benefits claimed that the courts lacked the authority to order him to turn over information about the benefits, and that doing so would violate his privacy rights.

Division of Retirement Benefits in Divorce

Some part of a spouse’s retirement benefits might be included in the property division in a divorce. In Missouri, it depends on the type of plan and the type of employer. Both federal and Missouri laws draw a distinction between retirement plans offered by private and public employers.

As a general rule, the portion of a retirement plan accrued during the marriage is considered marital property under Missouri law. That portion is therefore subject to division during a divorce case. Federal law establishes requirements for a court order dividing retirement benefits offered through a private employer. An order that meets these requirements is known as a Qualified Domestic Relations Order (QDRO).

Retirement benefits offered by public employers, such as local, state, or federal government agencies, can be much more complicated in divorce cases. The federal statute that requires QDROs for private plans does not apply to public plans. The treatment of public retirement benefits in a divorce therefore depends on state law:

• A Missouri court cannot order the Local Government Employees Retirement System (LAGERS) to divide retirement benefits in a divorce. It can order a division of LAGERS benefits, but the spouse receiving benefits would be responsible for disbursing the other spouse’s share to them. The one exception is that a court may order garnishment of LAGERS benefits for unpaid child support or spousal maintenance.
• The treatment of benefits offered through the Public School and Education Employee Retirement Systems of Missouri (PSRS/PEERS) in a divorce case can be even more complicated. Depending on how the employee spouse has chosen to receive benefits, the retirement plan might not be included in marital property at all.

Military retirement benefits are exclusively federal, and may be offered through the U.S. Department of Defense or the Department of Veterans’ Affairs. The Uniformed Services Former Spouses’ Protection Act allows state courts to divide the portion of a spouse’s military retirement benefits that would be considered marital property under that state’s laws. A court may issue an order, similar to a QDRO, that directs the Defense Finance and Accounting Service (DFAS) to divide the benefits after a divorce.

Compelling Release of Documents or Disclosure of Information

Missouri law provides several means for obtaining necessary information during and after a divorce.

During a Divorce

The parties to a divorce are expected —at least in a perfect world — to share information about both their marital and separate property freely. The discovery process gives each spouse the ability to obtain information with the court’s backing. During a contested divorce, each spouse may send discovery requests to the other. These could include:

• Interrogatories, which is a lawyerly way of saying “questions that the other spouse must answer in writing”;
• Requests for production of documents;
• Requests for admission of certain factual allegations; and
• A deposition, in which the other spouse must answer questions on the record, similar to questioning during a court hearing.

A spouse can use interrogatories to obtain general information about the other spouse’s retirement benefits. Requests for production can require the other spouse to provide copies of important documents relating to the retirement plan(s).

If a party to a divorce fails to respond to discovery requests on time, or provides inadequate responses, the party that sent the requests can file a motion to compel. The court can order production of documents and other information, and it can hold a party in contempt for failing to comply.

After a Divorce

Once a court has entered a judgment of dissolution of marriage, both parties are bound to provide any information necessary to carry out the terms of the judgment. In the Missouri Supreme Court case mentioned earlier, the court cited a decision it issued in 1946, Benton v. Alcazar Hotel Co. The court ruled then that “[a] court generally has the inherent power to make such proper orders as are necessary to effectuate its decrees.” As we shall see, this includes the power to compel a party to produce documents and other information.

Disclosure of Military Retirement Benefits

The Missouri Supreme Court’s decision in State ex rel. Cullen v. Harrell, issued in February 2019, offers an example of how one spouse can compel disclosure of information about retirement benefits after the divorce is complete. According to the court’s opinion, the husband served in the U.S. Air Force Reserves during the marriage. The court granted a divorce in 2009 based on a settlement agreement signed by both parties.

The judgment of divorce awarded the wife half of the military retirement benefits accrued by the husband during the marriage. The court entered an order in 2014 correcting the original judgment, after the wife learned from DFAS that the original judgment used the wrong formula for calculating benefits. The correct formula was based on half of the total reservist points earned by the husband during the marriage.

The wife stated that she was unable to obtain information on the husband’s points from DFAS. In 2017, she filed a motion to compel the husband to do two things:

1. Produce “any and all correspondence sent to him related to or arising out of the total number of reservist points he earned during the parties' marriage”; and
2. Authorize the release of military records “pertaining to the reservist points he earned during their marriage.”

The husband objected to the motion, filing several motions of his own arguing that the court lacked authority to do what the wife asked, and that an order compelling him to authorize release of military records violates his privacy rights. The trial court denied the husband’s motions and granted the wife’s motion. The husband appealed the case all the way to the Missouri Supreme Court.

The state supreme court ruled in the wife’s favor. It found that the trial court’s order on the motion to compel was within its “power to make such proper orders as are necessary to effectuate its decrees.” It also found that the order did not violate the husband’s privacy, since “the authorization restricts the documents to be released to those related to or arising out of the total number of reservist points Husband earned during the parties' marriage.”

Kansas City family lawyer Mark A. Wortman focuses his practice exclusively on family law matters, including divorces and child custody disputes. Please contact us online or at (816) 523-6100 today to schedule a confidential consultation to see how we can assist you.