How long does a marriage have to last before the spouse is entitled to pension benefits? 23 Answers as of November 09, 2011

My wife filed for divorce in September. We have no children, no property and no joint debt. I have two pensions that I am to receive at 55. We have been married for six years. She cashed out her 401k this summer. I received no money. Is she entittled to a share of the pensions that I am to receive?

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Reeves Law Firm, P.C.
Reeves Law Firm, P.C. | Roy L. Reeves
Unless the pension is protected (VA benefits, Rail Road Retirement are two protected pensions) she can ask for a portion but that portion is subject to limitations. The most simple answer is this. If you had one pension earned prior to marriage, it is off limits. The second (or both if both accrued in part during the marriage) are treated like this: Take the number of months you were married and accruing points and divide that by the number of months you earned points in total then divide the result by two. For example - government or military retirement which is earned on points (one point for each month of credible service) - Married 6 years (72) months, but enlisted for 22 years (268 months) also assuming the marriage was all during the enlistment - 72/268 = 31.5% divided by 2 = 15.25% to her, you get the rest. Same scenario and the marriage and service overlapped only 30 months (it is the time service and marriage overlap that counts, not the length of the marriage per se) and her share drops to 5.6%. If the retirement is a 401K (this would apply to her money) or a retirement based on your contributions - the application is to take the value on date of marriage and the value on date of divorce (you can claim for hers, that the money was withdrawn and moved but is still subject to the same division), subtract the first amount from the second to find out how much was contributed/earned during marriage and each is entitled to half of that amount.
Answer Applies to: Texas
Replied: 11/9/2011
Joanna Mitchell & Associates, P.A.
Joanna Mitchell & Associates, P.A. | Joanna Mitchell
It's not about how long the marriage lasted, but rather when the benefits were accrued. You should consult with an attorney.
Answer Applies to: Florida
Replied: 11/8/2011
AyerHoffman, LLP
AyerHoffman, LLP | Cara Lee Thompson
In Massachusetts, pensions can certainly be included in the marital estate that is to be "equitably divided" between divorcing spouses; however, given the length of your marriage and the fact that she has already cashed out her 401k without providing you with any of these monies, it may be unlikely that she receives any of your pension. However, more information is needed here in order to ascertain the likelihood of your pension being left out of the picture - and you should consult your state's statute as well as an attorney in order to take steps to keep your pension out of the marital "pot".
Answer Applies to: Massachusetts
Replied: 11/8/2011
The Law Office of Cathy R. Cook
The Law Office of Cathy R. Cook | Cathy R. Cook
Your wife is entitled to one-half of the portion of your pensions earned during the marriage. You also have a claim to one-half her 401k earned during the marriage. If she did not spend that money on marital purposes, you might be able to reduce her share of your pensions by your share of her 401k.
Answer Applies to: Ohio
Replied: 11/7/2011
Law Offices of Paul A. Eads, A.P.C.
Law Offices of Paul A. Eads, A.P.C. | Paul A. Eads
Only for contributions you made during the marriage.
Answer Applies to: California
Replied: 11/7/2011
    Reza Athari & Associates, PLLC | Seth L. Reszko
    Yes. Your spouse is entitled to a share of the pensions. The exact amount I cannot compute without further information. This doesn't mean that your spouse is entitled to 1/2 of the pension, but whatever amount that was obtained during the six years of marriage, she is generally entitled to that 1/2 interest.
    Answer Applies to: Nevada
    Replied: 11/7/2011
    Dunnings Law Firm
    Dunnings Law Firm | Steven Dunnings
    Not necessarily, and if she is, the amount is limited to the value accumulated during the marriage, not what you earned prior to the marriage.
    Answer Applies to: Michigan
    Replied: 11/7/2011
    John E. Kirchner, Attorney at Law
    John E. Kirchner, Attorney at Law | John Kirchner
    In general, the length of the marriage is only relevant to computing what portion of the pension or retirement benefits are considered marital property. Only marital property can be divided in the divorce.
    Answer Applies to: Colorado
    Replied: 11/7/2011
    Linda C. Garrett Law
    Linda C. Garrett Law | Linda Garrett
    With all due respect, you are asking the wrong question. The correct question is: "Does the community estate" have any interest in any pensions? Answer: a community estate would have an interest if either husband and wife (and/or their employer) made contributions from date of marriage to date of separation. The contribution could be a few bucks or a fortune. This is known is the "communicate estate" portion of the pension. Regarding distributions from pensions, the next question as to your wife's distribution is this, "When were the distributions made-during marriage or after date of separation. If during marriage, then there is nothing can do-unless the other party can prove some type of fraudulent behavior by the spouse. If after DOS, then need to determine if all or some of the distribution is community or a combination of separate and community. To determine whether your spouse is entitled to your pension benefits, I recommend you speak with an attorney-because there are numerous follow up questions that need to be asked and answered before an attorney can answer your specific question.
    Answer Applies to: California
    Replied: 11/7/2011
    Law Offices of Arlene D. Kock
    Law Offices of Arlene D. Kock | Arlene D. Kock
    Your wife entitled to1/2 of any pension amount earned during the marriage.
    Answer Applies to: California
    Replied: 11/7/2011
    Bruning & Associates, PC
    Bruning & Associates, PC | Kevin Bruning
    Your wife may be entitled to 50% of the pension accumulated during the marriage. Your wife may also have dissipated assets when she cashed in her 401k. You may be entitled to an offset in the amount of 50% of the 401k.
    Answer Applies to: Illinois
    Replied: 11/7/2011
    Wolfstone, Panchot & Bloch, P.S., Inc.
    Wolfstone, Panchot & Bloch, P.S., Inc. | Mark Brown
    Under Washington community property law, only that portion of a pension benefit (or 401K; or other retirement account) that accrues during the marriage is community in character. The portion of the benefit that accrued prior to marriage, or after separation (September) is the separate property of the person earning the benefit. Thus, plainly stated, the pension is part community property and part separate property based on the ratio of the separate and community months during which contributions to the pension were made. Another note: If your retirement benefit is a true "pension", it is a "defined benefit plan" that may require a valuation by a specialized actuarial accountant, who can also calculate the ratio of separate to community. In order to evaluate your claim to the proceeds of the 401K cashed out this summer, one would need more information.
    Answer Applies to: Washington
    Replied: 11/7/2011
    Law Office of L. Paul Zahn
    Law Office of L. Paul Zahn | Paul Zahn
    She is entitled to one-half of the community interest in your pension. The formula for calculating it is based upon the length of time that you accrued the pension, divided by the total time you accrue the pension from date of hire to date of retirement.
    Answer Applies to: California
    Replied: 11/7/2011
    Glenn E. Tanner
    Glenn E. Tanner | Glenn E. Tanner
    Theoretically, one second. A court divides all assets fairly and equitably. How much of a particular asset you get depends on many factors.
    Answer Applies to: Washington
    Replied: 11/7/2011
    Gary Moore, Attorney at Law
    Gary Moore, Attorney at Law | Gary Moore
    She is entitle to a FAIR SHARE of your pension, which partly depends on the value of the 401K which she cased out. She is entitled to one third to one half of that portion of your pension which accrued from the date of the wedding to the date of the filing of the divorce complaint, with deduction for her disposing of the 401K. It is feasible that she might get none of your pension. Hire an attorney if you have not because there is something valuable involved in your divorce.
    Answer Applies to: New Jersey
    Replied: 11/7/2011
    David A. Browde, P.C.
    David A. Browde, P.C. | David Browde
    Probably - but it won't likely be a substantial share. You should discuss your situation in detail with a local divorce attorney.
    Answer Applies to: New York
    Replied: 11/7/2011
    Attorney Paul Lancia
    Attorney Paul Lancia | Paul Lancia
    She can make a claim for a portion of these pensions. But she may not prevail based on the length of the marriage. First and foremost, I see that you take this situation seriously. You need to protect your legal rights and representing yourself is not the way to do so. Representing yourself is a recipe for problems, if not now, in the future. Retaining a lawyer need not be as expensive or difficult as you think.
    Answer Applies to: Massachusetts
    Replied: 11/7/2011
    Vincent J. Bernabei LLC
    Vincent J. Bernabei LLC | Vincent J. Bernabei
    She is eligible for 50% of the pension earned during the marriage only. This may be offset by the value of other assets
    Answer Applies to: Oregon
    Replied: 11/7/2011
    Law Office of Michael W. Bugni
    Law Office of Michael W. Bugni | Jay W. Neff
    I would think that, in general, the longer the marriage, the greater the chance of your spouse getting some portion of the retirement. However, as a practical matter, it is pretty much impossible to deal with just one asset in isolation, in most cases. The statute says that the court is to make a fair and equitable division of all of the property. There are a number of factors that the court is supposed to consider in reaching that division. If the court is going to divide the property, it first has to classify it. All of the property is going to be classified as your separate property, her separate property, or community property. Which of these classifications a particular piece of property falls into will depend on how and when the property was obtained. In most cases, property obtained during the marriage will be community property. Once the property is classified, how it gets divided will depend on a number of factors. Some of the factors that the court may consider are: the duration of the marriage, the ages of the parties, the health of the parties, the educational background of the parties, the employment history of the parties, and each party's future prospects. The court then has to come up with what the court believes is a fair and equitable division of all of the property using these and other factors. Now, if there is enough community property so that the court can come up with a fair division using just the community property, the court will generally do that. However, if there is not enough community property for the court to reach what it believes is a fair division, then, it can invade separate property.
    Answer Applies to: Washington
    Replied: 11/7/2011
    Law Office Of Jody A. Miller
    Law Office Of Jody A. Miller | Jody A. Miller
    It is possible that a part of your pension is marital property. You need to consult with an attorney about your specific situation and they can help determine how much is marital property; with a defined benefit pension plan, there is usually a formula to determine how much is separate and how much is marital property.
    Answer Applies to: Georgia
    Replied: 11/7/2011
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