Is there entitlement to ex spouse's pension and 401K after a divorce of a 15 years marriage? 18 Answers as of November 11, 2013

Is there entitlement to ex spouse's pension and 401K after a divorce of a 15 years marriage? How are calculations, percentage done?

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The Law Firm of Jessica M. Cotter, P.L.L.C. | Jessica M. Cotter
Arizona is a community property state. What this essentially means is that each of you are entitled to one half of the assets accrued during the marriage (with some exceptions). You should consult with an experienced family law attorney in your area to review your specific facts. Generally speaking the calculation would be the number of years married, divided by the number of years the the pension and 401(K) accrued, divided by 2.
Answer Applies to: Arizona
Replied: 11/11/2013
John Russo | John Russo
If it was litigated during the divorce the answer would be yes, the court has to make a finding that, (a) It is a marital asset, and (b) That it is subject to equitable distribution and it is divisible by a QDRO. If your divorce is over and you did not raise it then you waived your interest and can't come back. If your divorce is still pending then it must be raised with the court and the court must find it is marital and subject to division, and if so then thats not even 1/2 the battle, why? Because State courts can determine if the pension is marital but after that then federal law applies to the distribution, under ERISA. This is complicated stuff, you need to prepare a QDRO, which is a very complicated document, once it is done it must be sent to the plan administrator to see if it meets their requirements, even though federal law applies all pension administrators have certain ways they want the QDRO's drafted, so they may send it back for revisions, and that could happen more then once, after they ok it then you must present it to the court for a Judge to sign, and then it must be entered with the court, then you will need a few certified copies, with one of them being sent to the plan administrator so that they can now QDRO the pension into two separate accounts, 99% of the due it your self divorces miss this and never receive their portion of the pension, and later complain that, "The court ordered it, I have it right here the judge said this and the judge said that where's my pension, and all the plan administrator says is, speak to your attorney, and they respond I was my attorney, I Am Not Stupid You Know, the judge ordered it. Well guess what?
Answer Applies to: Rhode Island
Replied: 11/11/2013
Law Office of Robert E McCall | Robert McCall
If you are already divorced that should have been addressed in the final judgment, talk to your attorney if not. If you are pending divorce you do have an entitlement, exact percentage is up to the judge.
Answer Applies to: Florida
Replied: 11/11/2013
Musilli Brennan Associates PLLC
Musilli Brennan Associates PLLC | John F Brennan
Yes, depending on the jurisdiction. Generally the divorcing spouses will share equally in the contributions and growth in the value of a pension or 401K accrued during the marriage.
Answer Applies to: Michigan
Replied: 11/11/2013
Jencks Law Firm, PLLC
Jencks Law Firm, PLLC | Rita Jencks
In Oklahoma assets accrued during the marriage are considered marital property. Retirements, pensions, 401k's are divided usually 50/50 between the parties based upon the time the parties were married and the pension accrued. If you were married during the entire time the retirements were being accrued then you are entitled to 50% of the money in the account for the number of years you were married. If you are already divorced and the pensions were not divided at that time it is too late to get them now as property division is not modifiable after the final divorce is granted. If you are not divorced yet you need to make sure that all the retirements, savings, etc., are accounted for in the final decree.
Answer Applies to: Oklahoma
Replied: 11/11/2013
    Gottlieb & Goren, P.C.
    Gottlieb & Goren, P.C. | Aaron W. Goren
    50/50 unless there are extenuating circumstances.
    Answer Applies to: Michigan
    Replied: 11/11/2013
    Law Offices of Arlene D. Kock
    Law Offices of Arlene D. Kock | Arlene D. Kock
    You are entitled to 1/2 of any contributions from earnings into the 401k from date of marriage to date of separation.
    Answer Applies to: California
    Replied: 11/11/2013
    Elizabeth Jones, A Professional Corporation
    Elizabeth Jones, A Professional Corporation | Elizabeth Jones
    Yes you have a community property interest in both. You need an attorney to make sure this is divided properly.
    Answer Applies to: California
    Replied: 11/11/2013
    Simpson Law Office, PLLC | Alexander J. Simpson, III
    In Mississippi, each spouse is entitled to a fair share of property acquired during the marriage. This includes amounts in pension plans and retirement accounts. There is no set formula, as every case is decided on its own particular facts, and the Judge is going to look at the total value of the marital property, which may mean some assets are awarded to one party while different assets worth a similar amount are awarded to the other party. The law in your state may or may not be similar. You should consult a local attorney.
    Answer Applies to: Mississippi
    Replied: 11/11/2013
    James T. Weiner & Associates, P.C.
    James T. Weiner & Associates, P.C. | James T. Weiner
    To my knowledge there are no hard and fast calculations its all equity and equitably divided.
    Answer Applies to: Michigan
    Replied: 11/11/2013
    Provda Law Firm
    Provda Law Firm | Bruce Provda
    Yes, that would be a possibility for a 15 year marriage. You should consult a divorce attorney to figure out the actual amount.
    Answer Applies to: New York
    Replied: 11/11/2013
    McGee Family Law, PLLC. | Larry A. McGee
    Half of the money put into retirement accounts over the duration of the marriage is spouse's. So, if it was a 25-yr. account and a 15-year marriage, spouse would be entitled to: one-half of 60% of the retirement fund (15/25 = x/100 / 2). The same applies to the pension amount accrued during the marriage. So, in this example it would be 30% of the monthly pension benefit and 30% of the 401k account. Obviously we also do tracing of the funds if there is a dramatic difference in the monies and how they were placed in the account or valued by the account. For instance, if the account was started with $100 and left alone the entire ten years before marriage, then $7500 was placed in the account yearly, it may benefit the other party to trace the funds and show that all but a small portion was marital proceeds and should be divided. Or, if the pension was a state pension and the final payout was based on the "high five" earning years, it may benefit the pension owner to determine what would be paid out based on current income amounts and not wait 15 more years to get raises and promotions, only to lose 30% of the final amount when it is valued 15 years later.
    Answer Applies to: Minnesota
    Replied: 11/11/2013
    Warner Center Law Offices of Donald F. Conviser
    Warner Center Law Offices of Donald F. Conviser | Donald F. Conviser
    You are entitled to 50% of the plan assets that were acquired during the marriage before separation (plus or minus any gains and/or losses on each such asset), for each plan. You would get your share of those assets through a QDRO, and the plans will do the calculations. If you aren't represented by counsel, you should retain an experienced Family Law Attorney to advise and represent you. If you can find a QDRO specialist attorney, that would be the most direct way of getting those QDROs (and any related Joinders) prepared and filed.
    Answer Applies to: California
    Replied: 11/11/2013
    Peters Law, PLLC
    Peters Law, PLLC | Mark T. Peters, Sr.
    Yes, if you make it part of the divorce decree and a get a Qualified Domestic Relations Order (QDRO). You are entitled to of the value accrued during the marriage. So if you got married and the 401k started at the same time or later, you would be entitled to. If the 401k started 5 years earlier, you would be entitled to (15/20)*value of 401k. Of course if you have a 401k, your spouse is likewise entitled to half.
    Answer Applies to: Idaho
    Replied: 11/11/2013
    Petit & Dommershausen SC
    Petit & Dommershausen SC | Tajara Dommershausen
    Yes. Calculations are complex but they have to be divided in the divorce and if they aren't it is unlikely that you can go back and do so. A starting point is the accumulation during the marriage.
    Answer Applies to: Wisconsin
    Replied: 11/11/2013
    The Davies Law Firm, P.A.
    The Davies Law Firm, P.A. | Robert F. Davies, Esq.
    Yes, there should be, that is a long term marriage. The law on this is different in each state, so you need to find a good divorce lawyer in your area and get some advice. This is important, there is a lot of money at stake.
    Answer Applies to: New Jersey
    Replied: 11/11/2013
    David A. Browde, P.C.
    David A. Browde, P.C. | David Browde
    Generally it's half the value accrued during the marriage.
    Answer Applies to: New York
    Replied: 11/11/2013
    Catchick Law, PC
    Catchick Law, PC | Matt Catchick
    The general rule in Michigan is that you are entitled to 50% of your spouse's retirement benefits that accrued during the course of the marriage.
    Answer Applies to: Michigan
    Replied: 11/11/2013
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