# Kurz v. Kurz > Michigan Court of Appeals · March 22, 1989 · 178 Mich. App. 284 URL: https://www.frixlaw.com/law-library/cases/9723007 ## Case - **Full name:** Kurz v. Kurz - **Court:** Michigan Court of Appeals - **Decided:** March 22, 1989 - **Citations:** 178 Mich. App. 284; 443 N.W.2d 782 - **Precedential status:** Published - **Opinion:** Concurring in part by Murphy - **Judges:** Maher, Murphy, Burns - **Cited by:** 22 later opinions in the Frix Law Library ## Citator (automated) - **Yellow flag:** Disagreed with by Thompson v. Thompson, 189 Mich. App. 197 (1991). - Negative treatments: 1 - Distinguished by: 0 - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9723007 ## How later opinions describe it (automated extraction) - concluding that a trial court “abused its discretion in requiring [the plaintiff] to maintain a life insurance policy naming [the] defendant as sole beneficiary so as to secure her right to alimony” because “[u]nder the terms of the divorce judgment, [the] plaintiff’s obligati… ## Opinion text *299 Murphy, J. (concurring in part and dissenting in part). I concur with the majority opinion with the exception of its construction of MCL 552.18(1); MSA 25.98(1) and thus its decision to reverse that provision of the divorce judgment regarding the division of plaintiff’s pension. Kilbride 1 notwithstanding, I do not interpret MCL 552.18(1); MSA 25.98(1) as narrowly as my colleagues. Rather, I construe this statutory section as (1) authorizing the trial court in a divorce action to reach any assets described if those assets accrued at any time during the marriage and, (2) requiring the court to consider the described assets as part of the marital estate. I do not read this statute as limiting the value which is to be placed on the assets or limiting the method in which the court disposes of the assets. Pension, annuity, and retirement benefits vary greatly. Therefore, decisions regarding the valuation, division, and distribution of pension benefits must necessarily depend upon the facts presented to the trial court along with all other relevant considerations. Requiring, as Kilbride apparently does, the reduction to present value of pension interests necessitates assumptions that may not always be appropriate or accurate. Those assumptions, for example, include determinations of mortality, interest rates, and when *300 retirement might occur. Additionally, reducing pension benefits to present value and requiring that a nonparticipant spouse receive "offsetting” assets of comparable value is not always feasible. These concerns in part brought about the Qualified Domestic Relations Order (qdro), which was originally established by the courts and later codified by the Retirement Equity Act of 1984, 26 USC 72, 401 et seq. The qdro is meant to provide a mechanism to accommodate deferred distribution of pension interests. I am not prepared to acquiesce in a brightline test that requires the trial judge to separate out pension earnings which accrued either before the marriage or which will accrue after the divorce. For example, with respect to premarriage contributions, why should a pension asset be treated any differently than any other premarital asset, or inheritance for that matter? I doubt that our Legislature, in enacting MCL 552.18(1); MSA 25.98(1), intended that a trial court be required to separate out one year of premarriage contribution to a pension when the court is called upon to resolve a thirty-year marriage and dispose of all marital assets and obligations. Similarly, I do not believe that postdivorce contribution credits need necessarily be excluded in their entirety. For example, the subsidy to a pension paid under the guise of early retirement might appropriately be subject to distribution, as might be the case under certain pension plans which provide for the availability of increased pension benefits based upon continued service only because the parties contributed to the plan in early years. See, e.g., Giesen v Giesen, 140 Mich App 335, 340 ; 364 NW2d 327 (1985). See also Jerry L C v Lucille H C, 448 A2d 223 (Del, 1982). *301 Rather than adopting a brightline test, I would hold that the pension benefits of a party are an asset which are to be considered part of the marital estate and subject to award in the discretion of the court. The court has been given the statutory authority to determine the rights of the respective parties to these benefits. MCL 552.18(1); MSA 25.98(1) and MCL 552.101(4); MSA 25.131(4). This Court in Vance v Vance, 159 Mich App 381, 385-386 ; 406 NW2d 497 (1987), lv den 429 Mich 870 (1987), appropriately stated that the trial court has great discretion in the adjustment of property rights upon divorce. Moreover, the lower court’s objective in arriving at a property settlement is to reach a fair and equitable division in light of all the circumstances. In my view, the brightline test of Kilbride removes the lower court’s broad discretion in these matters. Simply, pension benefits should be treated like any other asset of the marital estate. That is, pension benefits should be evaluated and distributed in the trial court’s discretion. The trial court must be permitted to establish present value in cases where it is appropriate, but must not be precluded from following a course of distribution that provides for benefits when, if, and as the benefits are paid. Although in most situations it might be more appropriate for the trial court to award retirement benefits prorated for the years of the marriage in relation to the years worked, I am not prepared to say that the trial court in this case abused its discretion when it undertook the difficult task of dividing the marital estate and arrived at its decision awarding defendant fifty percent of plaintiffs pensions as valued at the time of his actual retirement. Kilbride v Kilbride, 172 Mich App 421, 435 ; 432 NW2d 324 (1988). --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9723007. Public record. Not legal advice.