In the case of Cassell v. Cassell, the Virginia Court of Appeals, in an unpublished opinion, upheld a trial court ruling that the division of husband’s retirement benefits should not be limited to husband’s salary as of the date of separation. Code Section 20-107.3(G) defines the marital share of a retirement plan as "that portion of the total interest, the right to which was earned during the marriage and before the last separation of the parties . . . ." The formula used by courts in dividing the marital share of pensions sets the numerator as the number of years from the date of marriage until the date of separation and the denominator is the number of years the employee is employed until retirement. In this appeal, husband is asking the court to adopt a different formula based on his salary as of the date of separation becasue he believes that wife will unfairly benefit from any post-marital salary increases. However, the formula used by the trial court takes into consideration the pre-marital and post-marital contributions because the fraction diminishes the marital share in relation to the number of years that pre- and post-marital contributions are made.
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