DELAWARE LAW REGARDING THE EQUITABLE DISTRIBUTION OF PENSIONS AND OTHER RETIREMENT PLANS IN DIVORCE

Delaware law provides that " 'marital property' means all property acquired by either party subsequent to the marriage *182 except ... [p]roperty excluded by valid agreement of the parties." 13 Del.C. § 1513(b)(3).

Pensions which accrue during a marriage, whether or not they are vested at the time of divorce, are normally considered to be marital property. Donald R.R. v. Barbara S.R., Del.Supr., 454 A.2d 1295, 1296 (1982); Robert C.S. v. Barbara J.S., Del.Supr., 434 A.2d 383, 387 (1981). See Gregg v. Gregg, Del.Supr., 510 A.2d 474, 480 (1986); Smith v. Smith, Del.Fam.Ct., 458 A.2d 711 (1983).

A spouse's waiver of his or her interest in a pension or other retirement assets may be waived in a marital property settlement agreement. This is precisely what occurred in the case of Memmolo v. Memmolo, 576 A.2d 181 (Del 1990), where the court held that the Wife had waived any claim to the Husband's military pension.

Typically, pensions and other retirement assets are divided through a qualified domestic relations order (QDRO). In cases that are settled by agreement of the parties, it is essential for the non-participant spouse to include a provision in the agreement that specifically states that he or she is entitled to survivorship benefits. The Supreme Court of Delaware held that a QDRO without a survivorship clause is presumed to exclude survivor benefits "as a matter of law." See Glenn v. Schlerf, 1993 WL 385030, *2 (Del.Supr.1993)