A recent case provides yet another illustration of the importance of careful drafting. A separation agreement provided simply that the “Alternate Payee [the wife] is assigned 60% of the Participant’s [the husband’s] pension benefits.” The agreement was incorporated into a divorce judgment and all provisions relating to the distribution of assets survived. The husband later prepared a QDRO which provided that the wife receive “60% of the Participant’s Vested Accrued Benefit earned as of the date of the Judgment of Divorce Nisi.” The Wife filed a complaint for contempt; she objected to the husband’s QDRO because, contrary to the agreement, it did not permit her to share in post-divorce accruals to the husband’s pension. Noting that the provision did not “limit her entitlement to that amount of the pension that was accrued during the marriage,” the Probate and Family Court agreed with the wife’s interpretation of the agreement and found the husband in contempt. The Appeals Court vacated the contempt but otherwise affirmed the judgment. (Editorial Comment: It seems clear that the language at issue here was the result of a drafting error or oversight – and that the wife exploited this. That said, I can’t help but wonder whether the husband would have had any success had he filed a complaint in equity.) Johnson v. Johnson, 2010 Mass. App. Unpub. LEXIS 711 (June 2, 2010) (Unpublished)
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