Am I entitled to half of my spouses retirement? 44 Answers as of July 27, 2011

I am getting a divorce. Am I entitled to half of my spouses retirement? We have been married for 11 years.

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Gregory T. Buckley, Attorney at Law
Gregory T. Buckley, Attorney at Law | Gregory T. Buckley
If the retirement has been accrued only during the marriage, you would be entitled to an equitable share of it. If some was accrued prior to the marriage, there would have to be calculations done to determine what an equitable share would be.
Answer Applies to: Florida
Replied: 7/27/2011
Law Office of Daniel B. Rubanowitz, APC
Law Office of Daniel B. Rubanowitz, APC | Daniel B. Rubanowitz
Without knowing more details, the general rule in a divorce case is that you would be entitled to one-half of your husband's retirement account(s). Because each case is different, you should consult with a Family Law Attorney.
Answer Applies to: California
Replied: 7/22/2011
Osterman Law LLC
Osterman Law LLC | Mark D. Osterman
You are entitled to 1/2 of the years your marriage contributed to it. For instance, you were married for 11 years. He worked for 33 before he retired. You get 1/2 of 11 because that was your contribution.
Answer Applies to: Indiana
Replied: 7/20/2011
Horizons Law Group, LLC
Horizons Law Group, LLC | Michelle B. Fitzgerald
In most cases, yes. WI property division in a divorce begins with a presumption to divide property 50/50. There can be reasons to not do 50/50, so it is negotiable.
Answer Applies to: Wisconsin
Replied: 7/19/2011
Neville J. Bedford Attorney at Law
Neville J. Bedford Attorney at Law | Neville J. Bedford
yes. talk to an attorney who can explain which potion of "half" you are entitled to. 401 Divorce ou.
Answer Applies to: Rhode Island
Replied: 7/19/2011
    Theodore W. Robinson, P.C.
    Theodore W. Robinson, P.C. | Theodore W. Robinson
    Yes, atleast the extent of the 11 years of marriage if your spouse was working the whole time. Speak to a matrimonial lawyer. Good luck.
    Answer Applies to: New York
    Replied: 7/19/2011
    Reeves Law Firm, P.C.
    Reeves Law Firm, P.C. | Roy L. Reeves
    Your question is a little incomplete, that is to say, there is not enough information to tell you what you are entitled to. That said, there is an assumption you are entitled to 1/2 of the retirement earned during the marriage, which unless your spouse can retire with only 11 years of employment (assuming the retirement you are seeking was earned during this same time period), you do not get 1/2 of all the retirement. The formula (again, assuming this is an earned retirement benefit - not a 401K which is subject to other rules) is X divided by Y result multiplied by 50% where X is the number of months you are married and your spouse was also earning retirement points and Y is the number of months your spouse earned retirement points at date of retirement (this is usually a number to be determined in the future). For example, government retirement is an earned benefit that accrues by the month. You marry on January 1, 1990 and your spouse gets the government job on December 1, 1995 and you separate/divorce on July 1, 2006 (127 months of overlapping service and marriage) and your spouse retires on December 1, 2015 - the formula would work out to 127/240*50% or 26.45%. So as you can see from this example, you do not get 1/2 (for some reason, there is a rumor that circulates in the military that if you remained married for 10 years, the spouse gets half of the retirement, this is completely false. The length of marriage does not matter, the formula applies to all cases. And, the assumption is 50% of the retirement earned during the marriage regardless of the length of the marriage. With all this in mind, there remains one more question - is the retirement exempted? VA benefits and RailRoad Retirement are the two biggest examples, but both are "non-divisible, non-assignable, and non-attachable" by law which means a divorce court cannot give you any of it. There may be others, but again, these are the two major exemptions.
    Answer Applies to: Texas
    Replied: 7/18/2011
    Beaulier Law Office
    Beaulier Law Office | Maury Beaulier
    Any asset acquired during the marriage is considered marital and capable of division. THis includes retirement plans.
    Answer Applies to: Minnesota
    Replied: 7/18/2011
    Law Office of Robert L. Fiedler
    Law Office of Robert L. Fiedler | Robert L Fiedler
    Part of the answer to this quesiton is how long the other spouse has been accumulating the retirement account. For example, if he has been contributing or it had been growing (in the case of a pension) for 20 years before you got married, you wouldn't get half.
    Answer Applies to: Connecticut
    Replied: 7/18/2011
    Fredric H. Aaron, Attorney at Law, P.C.
    Fredric H. Aaron, Attorney at Law, P.C. | Fredric Harlan Aaron
    Any assets acquired by you and your spouse during your marriage will be part of the marital estate subject to equitable distribution (with a few exceptions, such as gifts and property acquired by will/estate). Any portion of your spouse's retirement (pension, 401K, IRA) will be included in the marital estate, entitling you to a portion of such money.
    Answer Applies to: New York
    Replied: 7/18/2011
    Law Office of James Lentz
    Law Office of James Lentz | James Lentz
    You are entitled to a share of your husband's retirement. Howe much depends upon the distribution of other assets and whether he worked for the company before you were married. Another consideration would be whether you signed an antenuptial agreement. Please discuss your concerns with a local domestic relations attorney.
    Answer Applies to: Ohio
    Replied: 7/18/2011
    Goolsby Law Office
    Goolsby Law Office | Richard Goolsby
    We are the Goolsby Law Firm, LLC, divorce lawyers in Augusta, Georgia. Equitable division of all marital property and debts would generally be a matter which you and your divorce attorney should carefully discuss. You might be entitled to other property, too, depending upon all the facts. See a divorce lawyer ASAP! Good luck!
    Answer Applies to: Georgia
    Replied: 7/15/2011
    Warner Center Law Offices of Donald F. Conviser
    Warner Center Law Offices of Donald F. Conviser | Donald F. Conviser
    You are entitled to 1/2 of the community portion of your husband's retirement. Any portion of your husband's retirement earned prior to the marriage or after separation is his separate property. A QDRO (Qualified Domestic Relations Order) will need to be prepared, signed, made an order of the Court, and served on the retirement plan (in addition to the Judgment), in order to comply withERISA requirements.
    Answer Applies to: California
    Replied: 7/15/2011
    Law Office of Joseph A. Katz
    Law Office of Joseph A. Katz | Joseph A. Katz
    To Whom It May Concern: You are entitled to half of any retirement that accrued during the marriage.
    Answer Applies to: California
    Replied: 7/15/2011
    Lewis, Pfanstiel & Williams, PCLO
    Lewis, Pfanstiel & Williams, PCLO | Ryan J. Lewis
    A retirement account is treated just like a savings account. You are entitled to half of whatever was accumulated in the account during the marriage.
    Answer Applies to: Nebraska
    Replied: 7/15/2011
    John E. Kirchner, Attorney at Law
    John E. Kirchner, Attorney at Law | John Kirchner
    You are entitled to a fair share of all marital property acquired during the marriage. Retirement benefits accumulated during the marriage are included in the category of marital property. There are no absolute rules for what is fair because a fair division requires an examination of the entire picture - not simply one asset at a time. Typically, the marital portion of retirement funds will be divided 50/50 by a judge if the parties cannot agree, but a lot also depends on exactly what kind of "retirement" you are talking about and what other assets exist.
    Answer Applies to: Colorado
    Replied: 7/15/2011
    Law Office of Michael W. Bugni
    Law Office of Michael W. Bugni | Jay W. Neff
    Maybe. There are a number of factors that will affect how the retirement gets divided. Some of those factors include: 1. What other debts and property you and your spouse have. 2. How much of the property and debts are community property and debts and how much is separate property. 3. How long you have been married. 4. How old you and your spouse are. 5. The health of you and your spouse. What the court is likely to do is to look at all of the property and debts, and bearing in mind various factors, try to create a fair and equitable division of the debts and property. Typically, that means dividing the net community estate some place close to in half. However, since every divorce case is a little different from every other case, there is no single hard and fast rule that gets you to a mathematical result every time.
    Answer Applies to: Washington
    Replied: 7/15/2011
    Seattle Divorce Services
    Seattle Divorce Services | Michael V. Fancher
    Under Washington law all property is before the court. As a general rule each party will get to keep their separate property and community property will be divided. If some of the retirement was earned before marriage, that would be treated as separate. The portion of the retirement earned during the marriage would be treated as community. Also, division can mean a different percentage than 50/50.
    Answer Applies to: Washington
    Replied: 7/15/2011
    Fox Law Firm LLC
    Fox Law Firm LLC | Tina Fox
    It's not that simple. The length of marriage is there but it also depends on how long he has been on his job that determines how much (what percentage) you are entitled to receive. I encourage you to contact our office to set up a free 30 minute confidential consultation to discuss your particular case.
    Answer Applies to: Illinois
    Replied: 7/15/2011
    The Coyle Law Office
    The Coyle Law Office | T. Andrew Coyle
    You would likely be entitled to of whatever benefits accrued during the marriage; but if some of your spouses retirement accrued prior to the marriage, that would not be included.
    Answer Applies to: Illinois
    Replied: 7/15/2011
    Pontrello Law
    Pontrello Law | William Pontrello
    Only that portion earned during the marriage.
    Answer Applies to: Florida
    Replied: 7/15/2011
    Dunnings Law Firm
    Dunnings Law Firm | Steven Dunnings
    Half of what was accrued during the marriage. If part of his pension was accrued prior to the marriage, then that portion would not be included.
    Answer Applies to: Michigan
    Replied: 7/15/2011
    Cody and Gonillo, LLP
    Cody and Gonillo, LLP | Christine Gonilla
    retirement is a marital asset but it does not have to be divided in half necessarily; that will depend on other facts The information contained in this email may be confidential and/or legally privileged. It has been sent for the sole use of the intended recipient(s). If the reader of this message is not an intended recipient, you are hereby notified that any unauthorized review, use, disclosure, dissemination, distribution, or copying of this communication, or any of its contents, is strictly prohibited. If you have received this communication in error, please contact the sender by reply email and destroy all copies of the original message. Thank you for your anticipated cooperation.
    Answer Applies to: Connecticut
    Replied: 7/15/2011
    Law Office of Roianne H. Conner
    Law Office of Roianne H. Conner | Roianne Houlton Conner
    If you have been married for ten years and the retirement was earned during the ten years of the marriage you could be entitled to up to one half of the retirement.
    Answer Applies to: Alabama
    Replied: 7/15/2011
    Meriwether & Tharp LLC
    Meriwether & Tharp LLC | Patrick Meriwether
    The portion of retirement accounts that grew as a result of marital efforts (contributions) during the course of the marriage are subject to equitable distribution.
    Answer Applies to: Georgia
    Replied: 7/15/2011
    Donaldson Stewart, PC
    Donaldson Stewart, PC | Monica H. Donaldson Stewart
    Generally speaking, any assets accumulated during the marriage are community property and therefore subject to equitable (usually equal) division. You would not be entitled to share in any benefits your spouse accumulated prior to the marriage; however, the portion accumulated during the marriage are subject to community property treatment.
    Answer Applies to: Arizona
    Replied: 7/15/2011
    Joanna Mitchell & Associates, P.A.
    Joanna Mitchell & Associates, P.A. | Joanna Mitchell
    If all of the retirement was accrued during the marriage, you should be entitled to half. If not all of it was accrued during the marriage (i.e part of it prior and/or part of it after the separation), then it would be a lesser portion. You should consult with an attorney who can more fully advise you after discussing the facts of your case.
    Answer Applies to: Florida
    Replied: 7/15/2011
    ROWE LAW FIRM
    ROWE LAW FIRM | Jeffrey S. Wittenbrink
    Generally you are entitled to a fraction of your spouse's retirement equal to of the retirement portion earned while you were married to your spouse. This is called the "Sims formula," after a case called Sims v. Sims. There are variations to and nuances for each case, but this is the general rule in Louisiana.
    Answer Applies to: Louisiana
    Replied: 7/15/2011
    Apple Law Firm PLLC
    Apple Law Firm PLLC | David Goldman
    Generally you are entitled to a portion earned while you were married. There may be retirement that was not earned prior to your marriage and you may have signed a pre or post nuptial agreement waiving rights to other portions.
    Answer Applies to: Florida
    Replied: 7/15/2011
    Willick Law Group
    Willick Law Group | Marshal S. Willick
    It's hard to say from the information provided, but generally a spouse is entitled to half of what was earned DURING the marriage - not necessarily half of the entire asset.
    Answer Applies to: Nevada
    Replied: 7/15/2011
    Ashman Law Office
    Ashman Law Office | Glen Edward Ashman
    You have a misconception about divorce. Georgia does not have community property, so there is no 50-50 division. However we do have equitable division of assets which means everything is divided as a judge sees fit. That could be 90-10, 100-0, 50-50 or something else. How well you do will depend in great part on whether you get a lawyer or not. That's vital as the division of retirement can be complex.
    Answer Applies to: Georgia
    Replied: 7/15/2011
    Michael Apicella
    Michael Apicella | Apicella Law and Mediation
    A spouse's retirement benefits earned during marriage is community property, and hence divisible 50/50 at divorce, unless there was a premarital agreement that states otherwise.
    Answer Applies to: California
    Replied: 7/15/2011
    Law Office of Xochitl Anita Quezada
    Law Office of Xochitl Anita Quezada | Xochitl Anita Quezada
    You are entitled to one half of what was earned during the marriage.
    Answer Applies to: California
    Replied: 7/15/2011
    Law Offices of Sheryl S. Graf
    Law Offices of Sheryl S. Graf | Sheryl S. Graf
    Under California Community Property law, you are entitled to one-half of whatever part of your spouse's retirement accrued during the marriage. Whatever is accrued before marriage or after separation is that person's separate property. It's a pro-rata division. Assuming you are talking about a pension, the benefits are divided under what we call the "Time Rule". The Time Rule formula is a fraction: The total number of years and days accrued between the date of marriage and the date of separation, divided by the total length of service. You get one-half of that percentage. For example, if you were married for 11 years and 0 days, and your spouse worked for the company and accrued benefits for a total of 20 years and 0 days, the fraction is 11/20 (55%). In my example, the community property portion is 55%. You get one-half of that, or 27.5% of whatever benefits your spouse is entitled to.
    Answer Applies to: California
    Replied: 7/15/2011
    Petit & Dommershausen SC
    Petit & Dommershausen SC | Tajara Dommershausen
    Yes, half of what was earned during marriage.
    Answer Applies to: Wisconsin
    Replied: 7/15/2011
    Wallin & Klarich: A Law Corporation
    Wallin & Klarich: A Law Corporation | Paul Wallin
    In most cases the answer is yes. However, you are only entitled to 50% of his retirement during the 11 years of your marriage up until the date of separation. This is almost always a complicated calculation and definitely you should sit down with a family law attorney and he can help you through this process.
    Answer Applies to: California
    Replied: 7/15/2011
    Goodman, Dicus, and Teinert, LLP
    Goodman, Dicus, and Teinert, LLP | Paul M. Teinert
    You will be entitled to half of the community interest of the retirement account. This means that you will get half all contributions made to the account during the term of marriage.
    Answer Applies to: California
    Replied: 7/15/2011
    Law Office of Jackie Robert Geller
    Law Office of Jackie Robert Geller | Jackie Robert Geller
    You will be entitled to a portion of the retirement, based on a formula that takes into account how much of the retirement was earned during the marriage.
    Answer Applies to: California
    Replied: 7/15/2011
    Law Office Of Jody A. Miller
    Law Office Of Jody A. Miller | Jody A. Miller
    There are no entitlements in Georgia regarding property division. Georgia is an equitable division state, which means that if you cannot agree how to divide your property, the judge will decide according to what he or she thinks is fair given the circumstances of your case. This might mean a 50-50 split, but it might not.
    Answer Applies to: Georgia
    Replied: 7/15/2011
    The Davies Law Firm, P.A.
    The Davies Law Firm, P.A. | Robert F. Davies, Esq.
    You are going to get a piece of it. And there are a lot of other things to talk about including alimony, bank accounts etc.
    Answer Applies to: New Jersey
    Replied: 7/15/2011
    Vincent J. Bernabei LLC
    Vincent J. Bernabei LLC | Vincent J. Bernabei
    You are presumed to be entitled to half of all assets acquired during the marriage, including the retirement that was earned during the 11 year marriage.
    Answer Applies to: Oregon
    Replied: 7/15/2011
    Beresford Booth PLLC
    Beresford Booth PLLC | S. Scott Burkhalter
    In Washington, the Court will make a fair and equitable division of assets and debts, which does not necessarily mean 50/50.
    Answer Applies to: Washington
    Replied: 7/15/2011
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