DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

ANDREW CARDARELLI,

Appellant,

v.

TRACY CARDARELLI n/k/a TRACY FORGERON,

Appellee.

No. 4D21-1328

[November 23, 2022]

Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm 

Beach County; Renatha Francis, Judge; L.T. Case No. 502014DR0007319.

Robert S. Winess of Robert S. Winess, P.A., Boca Raton, for appellant.

Tracy Cardarelli (n/k/a Tracy Forgeron), Boynton Beach, pro se.

GROSS, J.

The question presented in this case is whether the former wife is 

entitled to a qualified domestic relations order (“QDRO”) providing for an 

increase in her distributions from the former husband’s Florida 

Retirement System (“FRS”) pension based upon her proportionate share of 

any cost-of-living adjustment (“COLA”) received by the former husband. 

We hold that the former wife’s right to a COLA was a vested statutory right 

that accrued during the marriage, so the QDRO properly included COLAs. 

Therefore, we affirm.

The parties married in 1999, and the former husband filed for 

dissolution of marriage in 2014. In 2015, the trial court entered a final 

judgment of dissolution that contained these provisions pertaining to the 

equitable distribution of the former husband’s pension with the Florida 

Retirement System:

8. The Court has considered all of the factors and 

requirements of Section 61.075, Fla. Stat., and in 

accordance therewith the Court hereby equitably 

(equally) distributes the marital estate to the parties 

which equal division is reflected in the Equitable 
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Distribution Schedule attached hereto as Exhibit “B”.

The Equitable Distribution Schedule is incorporated herein by 

reference and the parties are directed to comply with the 

division and distribution of the assets and liabilities provided 

therein. 

* * * 

10. With regard to the parties retirement plans (including, but 

not limited to, the Husband’s Florida State Retirement

Plan/Pension), with regard to the Qualified Domestic 

Relations Orders (QDRO’s) or similar orders required to 

effectuate the equal division and distribution of those, 

the parties shall attempt to agree upon a QDRO expert to 

prepare all such QDRO’s or similar orders . . . The Court 

specifically reserves jurisdiction to enter, address and enforce 

any and all QDRO’s or similar orders that may be necessary 

or appropriate to effectuate the required transfers. 

(Emphasis supplied).

The equitable distribution schedule attached to the final judgment as 

Exhibit “B” stated that the FRS plan was “[t]o be divided by QDRO.”

In a post-dissolution proceeding, the trial court entered an Amended 

QDRO that awarded the former wife, as a deduction from each monthly 

benefit payment payable to the former husband from the pension plan, 

50% of the benefits that accrued from the date the parties were married in 

1999 through the date the dissolution petition was filed in 2014.

Paragraph 9 of the Amended QDRO provides for a cost-of-living 

adjustment to the former wife on her proportionate share of any COLA 

received by the former husband:

9. Cost of Living Adjustment: The Plan Administrator shall 

increase the amount payable each month to the Alternate 

Payee based upon the Alternate Payee’s proportionate share 

of any cost of living adjustments (COLA) received by the 

Participant. . . . 

The former husband preserved his objection to Paragraph 9 in the trial 

court. 
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The former husband now appeals the Amended QDRO, arguing that the 

final judgment of dissolution did not mention the existence of a COLA as 

a marital asset subject to distribution, so the Amended QDRO should not 

have included Paragraph 9.

Discussion

Section 61.075, Florida Statutes (2015) provides for equitable 

distribution of marital assets and liabilities. Subsection (3) of that statute 

requires specific findings identifying marital assets and their value.

In Diffenderfer v. Diffenderfer, 491 So. 2d 265, 270 (Fla. 1986), the 

Florida Supreme Court held that “a spouse’s entitlement to pension or 

retirement benefits must be considered a marital asset for purposes of 

equitably distributing marital property.” 

Following Diffenderfer, the legislature enacted section 61.076, Florida 

Statutes, which governs the distribution of retirement plans upon 

dissolution of marriage. See Ch. 88-98, Laws of Fla. (1988).

Section 61.076(1), Florida Statutes (2015), provides: “All vested and 

nonvested benefits, rights, and funds accrued during the marriage in 

retirement, pension, profit-sharing, annuity, deferred compensation, and 

insurance plans and programs are marital assets subject to equitable 

distribution.”

We conclude that the former wife’s share of a COLA benefit attributable 

to the portion of an FRS pension earned during the marriage falls within 

the scope of “[a]ll vested and nonvested benefits, rights, and funds accrued 

during the marriage in retirement . . . plans.” Id. To the extent that the 

years of service occurred during the marriage, an FRS member’s 

entitlement to a COLA is a benefit or right that “accrued during the 

marriage” and is thus a “marital asset” as a matter of law, even if the actual 

COLA is paid after the dissolution. 

In a related context, both this court and the First District have held 

that a spouse who is awarded a portion of the other spouse’s FRS pension 

at the time of the dissolution judgment is entitled to an equivalent share 

in a Deferred Retirement Option Program (“DROP”) account, including 

interest and COLAs, even when the DROP account is created after the 

dissolution became final. See, e.g., Russell v. Russell, 922 So. 2d 1097, 

1099 (Fla. 4th DCA 2006); Swanson v. Swanson, 869 So. 2d 735, 738 (Fla. 

4th DCA 2004); Arnold v. Arnold, 967 So. 2d 392, 393 (Fla. 1st DCA 2007); 

Pullo v. Pullo, 926 So. 2d 448, 451 (Fla. 1st DCA 2006). As the First District 
4

has explained, “benefits giving rise to rights in a DROP account could 

‘accrue[ ] during the marriage,’ within the meaning of the statute, and 

therefore constitute marital assets, even though funds were not deposited 

in the DROP account until later.” Arnold, 967 So. 2d at 393. 

Once a dissolution judgment is entered, “marital property rights no 

longer exist[] and only individual property rights remain.” Ganzel v. 

Ganzel, 770 So. 2d 304, 306 (Fla. 4th DCA 2000). Therefore, in Ganzel, 

we held that once the judgment of dissolution was entered, the former 

wife’s share of the former husband’s FRS retirement benefits payable each 

month into the interest-bearing DROP account was the former wife’s 

individual property. Id. 

Similarly, in Swanson, even though the former husband did not become 

a DROP participant until 1998, we held that “45% of the value of the 

former Husband’s pension benefits as of January 17, 1990 [the date of the 

dissolution judgment] belongs to the former Wife” and thus “the interest 

and cost of living adjustments which were applied to the former Wife’s 

share, despite being in the former Husband’s DROP account, should also 

belong to the former Wife.” 869 So. 2d at 736, 738. 

The reasoning of the DROP line of cases indicates that the right to a 

future COLA benefit attributable to the marital portion of an FRS pension 

is a right that accrues during the marriage. That reasoning is equally 

applicable here. After all, DROP is essentially a “virtual” retirement where 

the monthly pension benefit is paid into a DROP account while the 

recipient continues to work for the state, so if the non-participant spouse’s 

share of the DROP benefit includes COLAs, it follows that the nonparticipant spouse’s share of the ordinary monthly pension benefit should 

also include COLAs. 

Once a court enters a dissolution judgment equitably distributing an 

FRS pension, the non-participating spouse’s share of the pension benefit—

including any future COLAs attributable to that share—is the nonparticipating spouse’s individual property. Here, the former wife received 

an undivided individual property right in the former husband’s FRS 

pension that, under the dissolution judgment, entitles her to a pro-rata 

share of any COLAs on the pension payments. See Pullo, 926 So. 2d at 

451 (holding that “the former wife received an undivided individual 

property right in the former husband’s retirement account that, under the 

dissolution judgment, entitles her to a pro-rata share of his DROP fund,” 

including COLAs). 
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That the former wife’s right to a COLA benefit in an FRS pension vested 

during the marriage is consistent with the statutes governing the FRS 

pension.

The rights of members of the FRS “are declared to be of a contractual 

nature, entered into between the member and the state, and such rights 

shall be legally enforceable as valid contract rights and shall not be 

abridged in any way.” § 121.011(3)(d), Fla. Stat. (2015). This statute “vests 

all rights and benefits already earned under the present retirement plan 

so that the legislature may now only alter retirement benefits 

prospectively.” Fla. Sheriffs Ass’n v. Dep’t of Admin., Div. of Ret., 408 So. 

2d 1033, 1037 (Fla. 1981). 

Section 121.101, Florida Statutes (2015), governs cost-of-living 

adjustments under the FRS. For members whose effective retirement date 

is on or after July 1, 2011, the COLA is a benefit calculated based on 

service credit earned before July 1, 2011: 

(4) For members whose effective retirement date is on or after 

July 1, 2011, the benefit of each retiree and annuitant shall 

be adjusted annually on July 1 as follows: 

(a) For those retirees and annuitants who have never received 

a cost-of-living adjustment under this subsection, the amount 

of the monthly benefit payable for the 12-month period 

commencing on the adjustment date shall be the amount of 

the member’s initial benefit plus an amount equal to a 

percentage of the member’s initial benefit. This percentage is 

derived by dividing the number of months the member has 

received an initial benefit by 12, and multiplying the result by 

the factor calculated pursuant to paragraph (c). 

* * *

(c) The department shall calculate a cost-of-living factor for 

each retiree and beneficiary retiring on or after July 1, 2011.

This factor shall equal the product of 3 percent multiplied by 

the quotient of the sum of the member’s service credit earned 

for service before July 1, 2011, divided by the sum of the 

member’s total service credit earned. 

§ 121.101(4), Fla. Stat. (2015).
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The former husband’s entitlement to a COLA was a vested benefit under 

Chapter 121 that accrued during the marriage. Under section 61.076(1), 

the former wife is entitled to equitable distribution of her share of the COLA 

benefit.

The Amended QDRO effectively awarded the former wife a proportionate 

share of any future COLAs attributable to the service credit earned during 

the marriage. 

It was not necessary for the final judgment to make specific factual 

findings regarding the former wife’s entitlement to a COLA in the pension 

as a marital asset subject to equitable distribution. It was sufficient that 

the final judgment identified the former husband’s FRS pension as a 

marital asset and ordered an “equal division” of the asset pursuant to a 

QDRO. The equal division of the marital portion of the pension included 

each party receiving future COLAs attributable to their share of the 

pension. 

The former husband relies on Storey v. Storey, 192 So. 3d 670 (Fla. 4th 

DCA 2016), but that case is distinguishable because the final judgment 

there specifically awarded the husband all future pension accumulations. 

There, the parties’ marital settlement agreement stated: “The 

Petitioner/Wife is entitled to 50% of the value of the 

Respondent/Husband’s pension benefits accumulated through November 

1994. All accumulations after November, 1994, belong to the 

Respondent/Husband.” Id. at 671 (emphasis in original). We held that 

this provision unambiguously “excluded any salary and cost of living 

increases Former Husband received after November 1994—the date the 

complaint for dissolution was filed—from the Former Wife’s pension 

benefit calculation.” Id. at 672–73. By contrast, the final judgment in this 

case did not expressly exclude COLAs.1

Affirmed.

MAY and FORST, JJ., concur.

* * *

1 We also distinguish Blaine v. Blaine, 872 So. 2d 383, 384 (Fla. 4th DCA 2004), 

a case not cited by the parties. That case involved a private pension, and the 

opinion does not discuss the provisions of the pension relating to the accrual of 

the right to any COLAs. This case, in contrast, involves an FRS pension where 

the right to COLAs is a vested statutory right that accrued during the marriage.
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Not final until disposition of timely filed motion for rehearing.