The Drafting Mistake That Reopens the Case
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One sentence shows up in Massachusetts separation agreements over and over. It looks balanced. It looks fair. Then it gets to us.

“The marital portion of the Husband's/Wife's pension shall be divided equally between the parties.”

More than 70%of the separation agreements we receive have incomplete pension language. 100%of those require us to go back to the attorneys for clarification before we can draft. Those calls happen with the client copied or asking why their DRO isn't done yet. Clients hate it. The division agreement everyone thought was finished is sitting on our desk getting reopened.

That sentence can be read four different ways: locking salary, locking years of service, and locking age in any combination, and then deciding whether post-divorce COLAs flow to the alternate payee. Each interpretation produces a different monthly benefit. We see all four every month. Over a 20- to 25-year retirement, the spread compounds into six figures.

This is for  law attorneys, mediators, and divorce financial professionals faced with state pension division. Address these issues before signing the agreement — not on a clarification call from us, and not in a post-retirement modification fight.

The Two Approaches — and Why Massachusetts Won't Pick One

Every state has guidance for dividing a defined-benefit pension that is not yet in pay status:how do you treat the years of service the employee spouse continues to accrue after the divorce?

Most states picked one answer. Massachusetts allows two opposing answers and leaves the choice to the parties and their attorneys, or to the courts if the parties don't choose.

Option 1: The Time Rule (Coverture)

Under the time rule — also called prospective coverture or marital coverture — the alternate payee's marital share is calculated at retirement, when the pension actually pays out. The formula:

Marital share / portion = (Years of service during the marriage ÷ Total years of service at retirement) × Final pension benefit × Agreed percentage (usually 50%)

This is the part most attorneys get wrong, even experienced ones.

The marital share — the alternate payee's piece — does not grow because the employee spouse keeps working after divorce. It shrinks. The alternate payee does not get half of the post-divorce benefits, even though that is what most people in correctly assume. The numerator — the marital portion — is fixed at divorce.The denominator remains open as the employee keeps accruing service. As years worked outside the marriage increase, the alternate payee's fractional share gets smaller.

So what does the alternate payee actually get? A shrinking “marital” share of a growing pension. They are not collecting 50% of all the employee's post-divorce work. They are getting proportional inflationary protection on their marital share — a benefit they cannot access or invest until the employee decides to retire. The standard attack on the time rule — “why should she share in his future raises?” — misreads the math.

The fraction is the equity mechanism. It is what produces a fair result during the years between divorce and retirement, when the employee controls the timing and the alternate payee can only wait.

Option 2: The Frozen Approach (Bright Line)
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Under the frozen approach, the pension is treated as if the employee retired on the date of divorce. The alternate payee's share is typically calculated using divorce-date salary and divorce-date years of service. Then they wait — with no growth, no inflation adjustment — for the 10 to 15 years until the employee actually retires.

Consider this example for comparison. The court is assigning the wife $300,000 from her husband's 401(k). The catch: it sits in his account, earns nothing, and she sees nothing for ten years until he retires. No attorney in Massachusetts would accept that. It is exactly what the frozen approach does to a defined-benefit pension.

Where Massachusetts Lands
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Most states picked one approach. Massachusetts is one of the very few that explicitly allows both. The point that matters for drafting:

Both approaches are accepted. Neither is the default. If your separation agreement doesn't specify which one applies, you are not deferring the issue. You are creating one.

After 16 years of drafting QDROs and DROs in the Commonwealth, our professional view: the time rule is the more equitable approach in most cases. The fraction self-adjusts.It protects both parties through the years between divorce and retirement when the alternate payee has no control over timing. The frozen approach is acceptable, sometimes appropriate, and in the right circumstances exactly the right tool for the employee spouse. A skilled attorney representing the participant may have very good reasons to draft for frozen treatment with the relevant variables locked. That is not a mistake. The mistake — the gap that costs money on either side of the case — is leaving the language ambiguous and assuming “marital portion” has a single interpretation. It does not.

The Four-Way Ambiguity in “Marital Portion”
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“50% of the marital portion of the pension” is silent on the four variables that determine the alternate payee's actual benefit:

•     Salary base — divorce-date salary, or actual final salary at retirement?

•     Years of service (denominator)— frozen at divorce, or open through actual retirement?

•     Age at retirement — valued as if retired today, or at actual retirement?

•     COLAs — do post-retirement adjustments flow to the alternate payee?

Each variable can be locked or unlocked. The combinations are not theoretical — we see all of them. The four most common interpretations of “the marital portion” produce four different monthly benefits:

1.    True time rule. Numerator fixed at divorce. Service years, salary, and age all open through retirement.Alternate payee gets a proportional share of the matured pension.

2.    Hybrid — frozen service, open salary and age. Years of service locked at divorce; salary and age allowed to mature. This is the language some commonly-used Massachusetts sample DROs default to — by design, since those models were drafted by the retirement boards themselves to protect their members. It is one reason we recommend against using model language verbatim.

3.    Hybrid — frozen salary and service, open age. Years of service and salary locked at divorce; age allowed to mature.

4.    Fully frozen. Salary, service, and age all locked at divorce — though age is the least common variable to freeze, since retirement boards generally cannot run a hypothetical benefit at an age below eligibility. No participation in any post-divorce growth.

On a typicalMassachusetts public pension where the employee divorces mid-career and works another decade-plus, the spread between Method 1 and Method 4 is routinely several hundred dollars per month — which compounds over a 20- to 25-year retirement to roughly $200,000 in lifetime benefits, sometimes more.

See the math on your own case. Use our interactive Pension Explainer to compare the time rule and frozen approaches side-by-side using your own salary, service, and retirement assumptions: clearwaterdivorce.com/pension-explainer

If the agreement doesn't specify which method applies, the decision doesn't get deferred. It gets handed to whoever is left holding the file. Usually that's the Certified QDRO Specialist drafting the order, who has to come back to the lawyers for clarification. Sometimes it's the judge, on a clarification motion.Either way, the parties have lost control of an outcome they could have settled.

One technical note for the lawyers reading this. “Frozen coverture” is a phrase used loosely, but it isn't coverture at all. Coverture is a fraction. The frozen approach doesn't use a fraction — it values the pension at divorce and assigns 50%. If you mean frozen, say frozen. If you mean coverture, say coverture. Using them interchangeably is one of the ways ambiguity creeps in. We also see agreements that apply time rule coverture and then freeze service — a true double-whammy that cancels the protection the fraction is supposed to provide.

Why This Keeps Happening
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Three reasons this keeps happening. None of them is malice. All of them are fixable.

MA pensions are common but complex. No one expects lawyers to be the expert. MTRS,SERS, MBTA, State Police, municipal pensions are everywhere in Massachusetts divorce practice. No family law attorney is supposed to be expert on every retirement system in the country, especially not the statutory complexities ofChapter 32. That is what Certified QDRO Specialists do. The variables we just walked through are not on most attorneys' radar until a CQS raises them. By then the agreement is signed.

Deal momentum kills the conversation. In mediation and uncontested matters, no one wants to slow down a workable agreement to litigate an actuarial issue thatwon't surface for a decade. The language stays generic, the agreement gets approved, and the issue moves from the negotiation table to our desk.

The math is invisible until someone runs it. Time rule versus frozen feels abstract until you see the side-by-side monthly numbers for an actual case. Once you do,it stops being a drafting choice and becomes the largest economic decision inthe divorce.

How to Draft Around It
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Here is what welook for when a separation agreement crosses our desk. If your draft addresses these, our job is mechanical — we draft the QDRO and move on. If not, we are calling you for clarification before we can proceed.

5.    Define what “marital portion”means in this case. If you use the phrase, follow it with a paragraph defining how it is calculated for these parties. No case citations, no boiler plate. Spell out the variables.

6.    Specify the coverture fraction— or state that there isn't one. Time rule: identify the numerator (months from marriage date through divorce) and the denominator (months through actual retirement), and state clearly that the fraction applies to the full and final pension benefit when received. Frozen: say so explicitly and skip the fraction language entirely.

7.    Lock or unlock each variable explicitly. Salary, years of service, age. Each one needs its own sentence.“The alternate payee's share shall be calculated using the participant's actual final salary, actual years of service at retirement, and actual age at retirement” is unambiguous. Anything less is not.

8.    Address COLAs. State whether the alternate payee shares in post-retirement cost-of-living adjustments. Don't assume.

9.    Address survivorship separately. MA public pensions — MTRS, SERS, MBTA, municipal — have their own statutory rules: Options A, B, C for retirement years; Option D / 12(2)(d)and lump sum for pre-retirement years. Those rules can override your separation agreement language in ways most attorneys don't anticipate. We are covering this in a separate article. Don't draft survivorship as an afterthought.

10.  State the parties' intent in plain English. After the technical formula, add one sentence: “The parties intend that the [alternate payee] share proportionally in the matured pension benefit at the time the participant retires.” Or the opposite, if that is the deal. Pension administrators, judges, and QDRO drafters all default to clearly stated intent when the technical language is unclear.

The Bottom Line
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Massachusetts gives the parties and their attorneys an unusual amount of latitude in how a pension is divided. Handled deliberately, that is an opportunity. Handled generically, it is a $200,000 liability.

The biggest mistake we see: “the marital portion shall be divided equally” and nothing more. That sentence is not a settlement. It is a deferred conversation, and the conversation almost always happens with us, on a clarification call, with both parties' attorneys on the line and the divorce already final.

If you are drafting a Massachusetts separation agreement involving a public pension —MTRS, SERS, MBTA, State Police, municipal, federal, or military — the time to get the pension language right is before the agreement is signed. We work with attorneys and mediators across the Commonwealth as the QDRO and DRO specialists on the file. Our practice is to flag this language early enough that you can adjust the agreement, before fixing it requires a modification.

If your draft has the sentence at the top of this article in it, and nothing more — call us before we have to call you.

This article is for educational purposes and does not constitute legal advice.Clearwater Divorce Advisors provides QDRO and DRO drafting and pension consulting services to family law professionals throughout Massachusetts.