Is she entitled to half my earned retirement? 25 Answers as of May 23, 2013

I am divorcing wife of 17 years. We have agreed to everything except retirement pay out. I earned a small 17 year retirement and she wants half. We both have 401k. I have 150k and she has 130k.

Ask a Local Attorney. 100% Anonymous. Free Answers.

Free Case Evaluation by a Local Lawyer: Click here
Donaldson Stewart, PC
Donaldson Stewart, PC | Monica H. Donaldson Stewart
Generally speaking, each party is entitled to half of all retirement benefits that accumulated during the marriage. If one party has benefits that exceed the other party's benefits, the court will usually order that the difference in value be "equalized." I recommend you consult with an attorney for additional information.
Answer Applies to: Arizona
Replied: 12/20/2012
John E. Kirchner, Attorney at Law
John E. Kirchner, Attorney at Law | John Kirchner
Your wife is entitled to a fair share of all marital property acquired during the marriage. Obviously some portion of your retirement benefits must have been earned during the marriage and it will be necessary to first make that determination. What is "fair" is whatever you and your wife agree to; but, if you cannot agree a judge will make that determination after considering all relevant information and that may or may not be exactly 50/50. There are no absolute, fixed rules and there is no requirement that every item of marital property be handled the same. As long as the overall result is "fair" it doesn't make any difference who gets what specific asset.
Answer Applies to: Colorado
Replied: 12/20/2012
Law Office of Barton R. Resnicoff | Barton R. Resnicoff
Equalization of retirement assets are usually part of equitable distribution. That usually would include equalizing the 401K accounts and dividing any defined benefit pension plans.
Answer Applies to: New York
Replied: 12/18/2012
Law Office of William R. Pelger
Law Office of William R. Pelger | William R. Pelger
Pennsylvania is an equitable (fair) distribution state, and the rule is not a definite 50/50 with property. It could be 60/40 or any other percentage that the court deems fair. However, 50/50 is a common settlement figure. Yes she has an interest in all of your stuff, including your pension and 401k, and you have an equal interest in all of her stuff, including her 401k. If you established the pension prior to the marriage, she may only have an interest in the value of the pension from the date of marriage to the date of separation .You need to talk to a lawyer to determine if that is the case and if so to maybe be a bit creative with the settlement by offering her more of your 401k or some other asset in exchange for her release of interest in the pension.
Answer Applies to: Pennsylvania
Replied: 12/18/2012
The Law Offices of Robert W. Bellamy
The Law Offices of Robert W. Bellamy | Robert W. Bellamy
she gets half of what was put in during marriage
Answer Applies to: Alabama
Replied: 12/18/2012
    Elizabeth Jones, A Professional Corporation
    Elizabeth Jones, A Professional Corporation | Elizabeth Jones
    If the retirement was all earned during the marriage then it should be equalized, $140,000 to each of you. The way it works is that you are each entitled to half of the other spouses retirement if it was all earned during marriage.
    Answer Applies to: California
    Replied: 12/18/2012
    Peyton and Associates | Barbara Peyton
    Each party is entitled to one-half of all assets acquired during marriage by virtue of employment efforts. So, yes. Your wife is entitled to one-half of all of the retirement acquired during your marriage. This is settled law.
    Answer Applies to: California
    Replied: 12/18/2012
    Kram & Wooster, P.S. | Richard H. Wooster
    She has an interest in your 401k and you have an interest in hers. The court will do an equitable division of the property. You need an attorney.
    Answer Applies to: Washington
    Replied: 12/18/2012
    The Davies Law Firm, P.A.
    The Davies Law Firm, P.A. | Robert F. Davies, Esq.
    You really need to sit down with a divorce attorney and get some advice.
    Answer Applies to: New Jersey
    Replied: 5/23/2013
    LAW OFFICE OF ANNE B. HOWARD | Anne B. Howard
    If it was earned during the marriage, she's entitled to half.
    Answer Applies to: California
    Replied: 12/18/2012
    Gary Moore, Attorney at Law
    Gary Moore, Attorney at Law | Gary Moore
    She does not automatically get half. If your time on the job exceeds the time you have been married, she only gets to share in that part of your pension entitlement which you earned during your marriage. You need to talk to an attorney.
    Answer Applies to: New Jersey
    Replied: 12/18/2012
    Glenn E. Tanner
    Glenn E. Tanner | Glenn E. Tanner
    It depends on other factors. See an attorney.
    Answer Applies to: Washington
    Replied: 5/23/2013
    Theodore W. Robinson, P.C.
    Theodore W. Robinson, P.C. | Theodore W. Robinson
    If she was married to you the entire 17 years while you were working, then she is entitled to a share of it. A lot depends upon the rest of the facts in the case, so speak to a divorce lawyer right away first.
    Answer Applies to: New York
    Replied: 12/18/2012
    John Russo | John Russo
    You are both entitled to 1/2 of the marital portion of the others retirement plans. Since you each have plans why not just waive as to each others. Also who is going to prepare the QDRO's, these are complicated documents that must be prepared and approved by both the plan administrators and the court, before being entered as an order for each and every separate pension account.
    Answer Applies to: Rhode Island
    Replied: 12/18/2012
    Peters Law, PLLC
    Peters Law, PLLC | Mark T. Peters, Sr.
    Let's say that you were working for 20 years for the retirement. She would be entitled to one-half times 17/20 times the payout. She may also be entitle to another 10,000 from your 401k (150-130*1/2). This of course assumes that all of the other property was evenly split. If she got more of the personal goods, then she would get less of your retirement, etc.
    Answer Applies to: Idaho
    Replied: 12/18/2012
    Law Office of Annette M. Cox, PLLC
    Law Office of Annette M. Cox, PLLC | Annette M. Cox
    Any retirement benefits or contributions earned during the marriage are subject to equitable distribution. If her 401k earnings was accrued during the marriage, you are entitled to her retirement assets as well. A qualified domestic relations order should be done to calculate the portions you each are entitled to and then whoever owes the other person more would have to do a distribution to make up the difference. A QDRO however can help you both avoid tax consequences and arrive at an accurate calculation.
    Answer Applies to: Arizona
    Replied: 12/18/2012
    WARM SPRINGS LAW GROUP | Elliott D. Yug
    You are each entitled to a pro-rated share of eachother's retirement accounts based on the total years you contributed to your retirement and how many of those years you were married to your current spouse.
    Answer Applies to: Nevada
    Replied: 12/18/2012
    Law Offices of Frances Headley | Frances Headley
    The law states that the division must be fair and equal. It does not state that each asset must be divided in half. First it must be determined what portion of the retirement is community and what the value is and then how to divide the community interest. You should consult a family law attorney to review all of the facts and advise you.
    Answer Applies to: California
    Replied: 12/18/2012
    Law Offices of Arlene D. Kock
    Law Offices of Arlene D. Kock | Arlene D. Kock
    Any portion of the retirement earned during the marriage is community property and in California, it is divided equally.
    Answer Applies to: California
    Replied: 12/18/2012
    Lana Panagoulia Law, PLLC
    Lana Panagoulia Law, PLLC | Lana Panagoulia
    Generally, in Michigan, property acquired during the marriage is considered marital property subject to division. Separate property is typically gifts to solely one spouse or inheritances titled and kept separate. These principles apply to both you and your wife. You should consult with an attorney to determine what your given set of circumstances are and so you could get a better idea of what your outcome may be. Everyone's circumstances are different, therefore, more facts are needed to provide you more definitive assistance. Depending on other property you may have, you may not need to divide your retirement. Again, more facts are needed, and you should consult with an attorney.
    Answer Applies to: Michigan
    Replied: 12/18/2012
    Victor Varga | Victor Varga
    You are both entitled to a marital share of each other's retirement funds (the amounts earned during the marriage). If you each have about the same amount, then it should pretty much be a wash.
    Answer Applies to: Maryland
    Replied: 12/18/2012
    Law Office of Eric S. Lumberg | Eric S. Lumberg
    Retirement assets can be an issue in a divorce action. However the value of each account will be a factor. You may have a claim to her account. Consult with an attorney to discuss further.
    Answer Applies to: Michigan
    Replied: 12/18/2012
    Petit & Dommershausen SC
    Petit & Dommershausen SC | Tajara Dommershausen
    All property is presumed marital and that each party will get half. So yes she would get half the retirement and some of your 401k unless you are taking bills to offset it or she is getting more other property.
    Answer Applies to: Wisconsin
    Replied: 12/18/2012
    Musilli Brennan Associates PLLC
    Musilli Brennan Associates PLLC | John F Brennan
    Generally she gets one half or the retirement earned during the marriage and each of you will be entitled to one half of the others IRA. Please, for your own good, run the agreement by an attorney before you have it entered.
    Answer Applies to: Michigan
    Replied: 12/18/2012
    Richard D. Zasada, LLC | Richard D. Zasada
    Everything accumulated during the marriage is marital property. Including all your retirement accounts and all hers. What you can do is try and figure out what the total amount is that needs to be divided and try and keep your own accounts in your own names to avoid transferring funds.
    Answer Applies to: Florida
    Replied: 12/18/2012
Click to View More Answers:
12 3 4 5 Free Legal QuestionsConnect with a local attorney