No. 92-CA-477 Precedential Processed

Wirstrom v. Wirstrom

Louisiana Court of Appeal, First Circuit · Filed October 27, 1992 · 608 So. 2d 216

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Opinion text

CANNELLA, J., concurring. Sims v. Sims, 358 So.2d 919 (La.1978) was decided by the Supreme Court in 1978, and set out a formula for dividing community owned pension benefits. In 1991 the Supreme Court again addressed the question in Hare v. Hodgins, 586 So.2d 118 (La.1991). In Hare , the court noted: ... the fraction [under Sims ] may not always accurately reflect the relative community and separate components when there have been post-divorce increases, to the pension benefits retirement due to high separate earnings in the employee spouse’s late employment years. The Hare court then went on to hold: In general the partitioning court should inquire as to whether a substantial post-community increase is due to personal effort or achievement, after the termination of the community that has little or no relationship with the prior community. Therefore, in my view, the question of how to appropriately divide pension rights should be considered under the criteria set out in Hare and not by an application of the Sims formula. However, I concur in the majority opinion, insofar as it holds that appellant did not meet his burden of proof under Hare in establishing that the post-community increase in pension benefits was due to his “personal effort” and not to “non-personal factors.”