Rule 72.1.Retirement, Benefits, Stock Options, and Other Employment Related Compensation

Rule 72.1 exists because dividing a pension or an option grant is a technical exercise that often outlasts the divorce.

The appointment

Where a court order requires retirement benefits, stock options or other employment related benefits to be divided, the court may appoint an attorney or other professional with appropriate expertise either to recommend a division or to implement the division the court has already ordered. Those are different jobs, and the appointment order must identify the specific assets to be divided.

Discovery powers

The order may authorize the appointee to require the production of documents, require answers to interrogatories, and request subpoenas to obtain needed records. A professional under this rule may also order the appearance of any party, using that party's most recent available address -- which is what makes the rule work when one spouse has disengaged after the decree.

Determination without a party's help

The appointee calculates the parties' relative interests and addresses any other issues the appointment order submits. The provision that carries the rule: the professional may make its determinations even if a party does not appear or present a position on the merits or the terms of division. A plan cannot be divided without a qualifying order, and a party who ignores the process cannot stall it indefinitely.

The appointee must weigh the availability of records and the parties' cooperation. And where the division requires the use of discretion, the professional must submit its recommendation to the court for approval rather than decide. The appointee does arithmetic and drafting; judgment stays with the judge.