Generally speaking it is, IF any part of the pension was earned during the marriage.  Specifically, even if one earned only a small percentage of their pension during the marriage it is subject to equitable distribution.

A recent South Florida case dealt with this very issue.  A Husband earned the majority of his pension outside of the marriage.  However, the trial court failed to determine how much, if any, of the pension was a marital asset subject to Equitable Distribution.  Since the trial court did not make any determination as to the marital status of the pension as required by Florida Statute § 61.075(3), the Fifth District Court of Appeal found this to be reversible error. 

It is important to understand that in cases like this it is likely that only the percentage earned during the marriage would be considered a marital asset and the rest would be considered nonmarital.  Thus even though a portion was subject to equitable distribution, it is likely that the vast majority of the pension would have been considered nonmarital and not subject to divide. 

Dustin Michael Butler is an Attorney with Martin Law Firm, P.L., whose practice focuses in Family Law and Civil Litigation.  He is admitted to practice law in a the State of Florida and the Federal Court for the Middle District of Florida. He primarily practices in Lee County Florida in Cape Coral and Fort Myers, Florida.