Am I entitled to my husbands pension and retirement from his company if we divorce? 23 Answers as of June 11, 2013

My husband and I have been married for 16 years. We both worked the whole marriage, but he earned about a lot more than me. Am I entitled to his pension/retirement from his company? Is he entitled to my retirement?

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Reeves Law Firm, P.C.
Reeves Law Firm, P.C. | Roy L. Reeves
There is a lot more to your question than you ask, but the short answer is yes to both, with one major caveat. If he works for the Rail Road nothing I say her counts. Don't ask me why, but in 1910 the Congress at that time passed the RailRoad Retirement Act and made it so that a spouse cannot get any of it. VA Disability is the only other benefit I know that is subject to this same limitation. With atht caveat stated, Retirement, Pension Plans, etc. are all divisible pursuant to a formula. Months of marriage and overlapping service for retirement / months of service at time of divorce = community property. A spouse is generally entitled to 1/2 of the community property. This formula is for defined contribution plans - work 20 years, get x % of your last 3 years pay, etc.

401Ks and employee contribution plans are divided like bank accounts. What was put in (including interest income) during the marriage is community.
Answer Applies to: Texas
Replied: 5/2/2011
Law Office of John C. Volz
Law Office of John C. Volz | John C. Volz
Yes, you are both entitled to of the community share of each of your retirements. The court will look at the dates of marriage and the length of employment to determine what the community share of the retirement is.
Answer Applies to: California
Replied: 5/1/2011
Law Office of Curry & Westgate
Law Office of Curry & Westgate | Patrick Curry
All assets and debts acquired during the marriage are community property and therefore 50/50.
Answer Applies to: California
Replied: 4/29/2011
Fox Law Firm LLC
Fox Law Firm LLC | Tina Fox
Yes you are both entitled to a portion of each others pension. However, how much or what percentage depends on certain factors. I encourage you to hire an attorney to protect your rights and your assets. We have years of experience in Divorce and will be happy to represent you if you ultimately decide to divorce.
Answer Applies to: Illinois
Replied: 4/28/2011
Lori C. Obenauf LLC
Lori C. Obenauf LLC | Lori C. Obenauf
In the event you and your husband cannot agree on a property distribution, a judge or a jury would consider an "equitable division" of marital property basically what is fair under all of the circumstances. Any property acquired during the marriage, except for gifts from 3rd parties and inheritances, is considered marital property subject to division. Both his pension and retirement and your pension and retirement would be part of the marital property. I recommend that you hire legal counsel to help you achieve an appropriate settlement under all of the circumstances.
Answer Applies to: Georgia
Replied: 4/28/2011
    Cody and Gonillo, LLP
    Cody and Gonillo, LLP | Christine Gonilla
    The answer to all your questions is yes - retirement is part of the marital estate and will be equitably divided.
    Answer Applies to: Connecticut
    Replied: 4/28/2011
    The Davies Law Firm, P.A.
    The Davies Law Firm, P.A. | Robert F. Davies, Esq.
    You are very likely entitled to a portion of the pension and retirement accounts that he got during the 16 year marriage, and he may get a part of yours too. I can explain this in detail, so give me a call, make an appointment to come see me, and let's get moving on this for you.
    Answer Applies to: New Jersey
    Replied: 4/28/2011
    Glenn E. Tanner
    Glenn E. Tanner | Glenn E. Tanner
    You are each entitled to a fair and equitable division of all assets and debts. The court is to identify all property and whether it is separate or community. If a portion of the assets you mentioned were acquired prior to marriage, they may be separate property but this analysis can be complex and can be ignored by the court. Assuming the assets are community, yes, you both have an interest in the other's assets. Let's say his pension/retirement is worth 150,000 and your retirement 50,000 for a total of 200,000. Also assume a 50/50 split of all assets. One settlement would be for you to keep all of your retirement but get $50,000 of his. If his or your retirements are "defined benefit plans" you'll probably need/want to get this valued by an expert who uses an actuary table and other factors to determine the asset's present day value. Consider using the collaborative process to solve your problems. You'll probably save money and stress.
    Answer Applies to: Washington
    Replied: 4/28/2011
    Theodore W. Robinson, P.C.
    Theodore W. Robinson, P.C. | Theodore W. Robinson
    Hello, Yes, both of you are entitled to a share of each other's pensions, however, because you made less money than him, I must presume you have less income from your's than he has from his and therefor, there would be an averaging, so to speak so that both of you will get a percentage of each other's pensions or one will be set-off by the other's. However, since the marriage was only 16 years and pensions are usually given after a longer period, that aspect will also play into the situation. I suggest you consult with an experienced matrimonial attorney for greater details.
    Answer Applies to: New York
    Replied: 4/29/2011
    Michael Apicella
    Michael Apicella | Apicella Law and Mediation
    Retirement benefits earned during marriage (from the date of marriage until the date of separation) are community property. Thus, yes, you are both entitled to some amount of each other's retirement benefits. An experienced family law lawyer can establish what amount spouse has acquired in the other's retirement.
    Answer Applies to: California
    Replied: 4/29/2011
    Law Office of L. Paul Zahn
    Law Office of L. Paul Zahn | Paul Zahn
    Yes. If you are looking for an attorney and are in my area, please contact me for a free consultation.
    Answer Applies to: California
    Replied: 6/11/2013
    Warner Center Law Offices of Donald F. Conviser
    Warner Center Law Offices of Donald F. Conviser | Donald F. Conviser
    The pension/retirement funds earned by each of you during the marriage are community property . You are entitled to a 1/2 share of the community property retirement funds in your husband's pension/retirement plan, and he is entitled to a 1/2 share of the community property retirement funds in your pension/retirement plan. Qualified Domestic Relations Orders (QDROs) will have to be prepared, stipulated to, ordered by the Court, and served on the respective pension/retirement plans,to divide the community interests in your and your husband's pension/retirement plans.
    Answer Applies to: California
    Replied: 4/29/2011
    Beaulier Law Office
    Beaulier Law Office | Maury Beaulier
    Any assets acquired during the marriage are presumed marital and capable of division. That includes pension plans. ESOP plans, 401 K plans, SEP plans, Stock and stock options. It does not matter in whose name the account appears.
    Answer Applies to: Minnesota
    Replied: 4/29/2011
    Edwin Fahlen Attorney at Law
    Edwin Fahlen Attorney at Law | Edwin Fahlen
    Each of you are entitled to one-half of each of your retirement accounts that were acquired during the marriage, meaning from the date of marriage through the date of separation.
    Answer Applies to: California
    Replied: 4/28/2011
    Law Office of Richard B. Kell
    Law Office of Richard B. Kell | Richard B. Kell
    Both of your pensions/retirements will be considered "marital property" subject to equitable division by the Court. Generally speaking, a disparity in incomes - like that which you have described - will result in one spouse receiving a larger share of the assets than the other.
    Answer Applies to: Massachusetts
    Replied: 4/28/2011
    John E. Kirchner, Attorney at Law
    John E. Kirchner, Attorney at Law | John Kirchner
    The portion of pensions that are earned during the marriage a considered marital property to be equitably divided in a divorce case. Until you and your husband agree to terms for dividing marital property or until a judge does that division for you, you are only entitled to make a claim for a fair share of the total marital property. Both yours and your husband's pension plans are included in the total. Typically, future pension annuity payments are only paid in monthly increments so divorce courts normally divide those future payments by the deferred distribution method in which the non-employee spouse is awarded a specified percentage of the monthly payment. Usually, that percentage is one-half of the portion found to have been earned during the marriage. The portion earned during the marriage is determined by dividing the total time of employment during the marriage by the total time of employment used to determine the pension payment. This is what Colorado and many states call the Time Rule. This Rule only applies to what are known as defined benefit plans. Retirement plans that have a current cash value (such as IRA's, 401k's, etc.) are generally divided immediately based on whatever the court rules or the parties agree to.
    Answer Applies to: Colorado
    Replied: 4/28/2011
    Naziri Hanassab LLP
    Naziri Hanassab LLP | Vahid Naziri
    You are entitled to 50% of his Pension and Retirement plan from the Date of Marriage to the Date of Separation.
    Answer Applies to: California
    Replied: 4/28/2011
    Michael Anthony Wing, P.C.
    Michael Anthony Wing, P.C. | Michael Anthony Wing
    A divorce court is a court of equity, so the judge does what the judge thinks is fair. The below is the relevant statute for your consideration: 30-2-51. Allowance upon grant of divorce; certain property not considered; retirement benefits (a) If either spouse has no separate estate or if it is insufficient for the maintenance of a spouse, the judge, upon granting a divorce, at his or her discretion, may order to a spouse an allowance out of the estate of the other spouse, taking into consideration the value thereof and the condition of the spouse's family. Notwithstanding the foregoing, the judge may not take into consideration any property acquired prior to the marriage of the parties or by inheritance or gift unless the judge finds from the evidence that the property, or income produced by the property, has been used regularly for the common benefit of the parties during their marriage. (b) The judge, at his or her discretion, may include in the estate of either spouse the present value of any future or current retirement benefits, that a spouse may have a vested interest in or may be receiving on the date the action for divorce is filed, provided that the following conditions are met: (1) The parties have been married for a period of 10 years during which the retirement was being accumulated. (2) The court shall not include in the estate the value of any retirement benefits acquired prior to the marriage including any interest or appreciation of the benefits. (3) The total amount of the retirement benefits payable to the non-covered spouse shall not exceed 50 percent of the retirement benefits that may be considered by the court. (c) If the court finds in its discretion that any of the covered spouse's retirement benefits should be distributed to the non-covered spouse, the amount is not payable to the non-covered spouse until the covered spouse begins to receive his or her retirement benefits or reaches the age of 65 years, unless both parties agree to a lump sum settlement of the non-covered spouse's benefits payable in one or more installments. Stay well.
    Answer Applies to: Alabama
    Replied: 4/28/2011
    Maclean Chung Law Firm
    Maclean Chung Law Firm | G. Thomas MacLean Jr.
    In short, all assets acquired during marriage are community property in California, and each spouse is entitled to one half of everything. If a pension or retirement was accrued during marriage, both spouses are entitled to half of what was accrued during marriage. What usually happens is instead of splitting each asset, certain assets will be awarded to one spouse or the other, with the total value each spouse receives being equal. If you retirement is worth less than your husband's, you may be awarded yours completely, and then receive a portion of his to balance out the value of assets both of you are receiving. But you each have an interest in the others retirement funds and/or pensions.
    Answer Applies to: California
    Replied: 4/28/2011
    Goldberg Jones
    Goldberg Jones | Zephyr Hill
    You are both entitled to half of what was earned during the marriage in both your accounts and his accounts.
    Answer Applies to: California
    Replied: 4/28/2011
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