Will I be entitled to my ex spouses pension if we divorce? 30 Answers as of August 17, 2011

My husband & I have been separated since 1971. Am I entitled to any of his pension? We are both retired.

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Fredric H. Aaron, Attorney at Law, P.C.
Fredric H. Aaron, Attorney at Law, P.C. | Fredric Harlan Aaron
All assets acquired during a marriage are subject to equitable distribution with a few exceptions (gifts, property acquired by will or estate and returns on investments made prior to the marriage). If your husband's pension was funded during the marriage, then it will be included in the marital estate. Assuming there are no mitigating circumstances, you should be entitled to half of the value of your husband's pension. You should consult with an experienced attorney on this matter.
Answer Applies to: New York
Replied: 8/17/2011
Reeves Law Firm, P.C.
Reeves Law Firm, P.C. | Roy L. Reeves
This is one of those questions that has no right answer. On one hand, you were married and Texas does not have "legal separation" so both pension are community property. That said, I would argue and have done so in the past that the community ceased to exist at some point and if I have argued this successfully covering a 3-4 year separation, there is an excellent chance that 40 years will get you tossed. In short, the law presumes you get a part of his and he gets a part of yours, but this is a presumption that can be rebutted under the circumstances.
Answer Applies to: Texas
Replied: 8/11/2011
Law Office of Roianne H. Conner
Law Office of Roianne H. Conner | Roianne Houlton Conner
If it was not awarded in the separation or divorce. No you are not entitled.
Answer Applies to: Alabama
Replied: 8/8/2011
Horizons Law Group, LLC
Horizons Law Group, LLC | Michelle B. Fitzgerald
This is interesting. You are still married, so the law says yes, it would be a 50/50 division at divorce. But you called him ex-spouse, so have you been legally separated or divorced already? It may depend on all the facts, and could be argued that it should not be 50/50 now.
Answer Applies to: Wisconsin
Replied: 8/5/2011
Law Office of Robert L. Fiedler
Law Office of Robert L. Fiedler | Robert L Fiedler
You have been separated 40 years? The likelihood is that you wouldn't be.
Answer Applies to: Connecticut
Replied: 8/4/2011
    Law Offices of Paul A. Eads, A.P.C.
    Law Offices of Paul A. Eads, A.P.C. | Paul A. Eads
    You would be entitled that portion acquired during the marriage.
    Answer Applies to: California
    Replied: 8/4/2011
    Law Offices of Arlene D. Kock
    Law Offices of Arlene D. Kock | Arlene D. Kock
    You may be if some or all of the pension was earned between the date of marriage and your separation in 1971. More importantly, if he is retired and receiving his pension without your community share being allocated to you, he may be receiving a portion of your retirement! You need to meet with a qualified family law attorney to assess the best approach to handle your situation. If you have not filed for divorce, now is the time to consider this step or filing a legal separation. Either petition will afford you the option to join the pension and calculate what part of the pension may belong to you.
    Answer Applies to: California
    Replied: 8/4/2011
    Beaulier Law Office
    Beaulier Law Office | Maury Beaulier
    There is a presumption under law that any asset acquired during the marriage is a marital asset and capable of division in a divorce. However, that does not preclude a party from arguing that they should be awarded a greater share of the assets based on equitable considerations. Equitable means what is fair under the circumstances. If one party has contributed individually to an asset because the parties were separated, thee may be a strong argument that a greater share of that asset should be awarded to them.
    Answer Applies to: Minnesota
    Replied: 8/4/2011
    Law Office of Michael W. Bugni
    Law Office of Michael W. Bugni | Jay W. Neff
    The two of you have actually been separated for about 40 years but never divorced? I hate to say that you cannot get any of your spouse's pension. This is because there are often special circumstances or conditions in a case that can change the answer. However, without digging in to your case to find out whether there are any such special circumstances or conditions in your case, my answer would be that it is unlikely that you will get any of your spouse's pension after a 40 year separation.
    Answer Applies to: Washington
    Replied: 8/4/2011
    Michael D. Fluke, P.A.
    Michael D. Fluke, P.A. | Michael D. Fluke
    If you have been separated since 1971, the court may very well value the pension for the years that you were married and living together. I suggest you consult a local Family Law attorney to discuss your case in greater detail and learn all of your rights and options. Good luck.
    Answer Applies to: Florida
    Replied: 8/4/2011
    Bagwell Holt Smith Jones & Crowson, P.A.
    Bagwell Holt Smith Jones & Crowson, P.A. | John G. Miskey IV
    You may be entitled to a share of his pension if he agreed to this in a contract or by Court Order.
    Answer Applies to: North Carolina
    Replied: 8/4/2011
    Law Office of James Lentz
    Law Office of James Lentz | James Lentz
    Separation has two meanings. Meaning one is that you and he went in different directions and pretended that you were no longer married. Meaning two is that you separated under the laws of Ohio and that your marriage effectively ended in 1971, but you needed it to continue for religious or other reasons.In reason two you went to court. If you went in different directions in 1971, you may qualify for a substantial share of your husband's pension as well as spousal support. Please see a local domestic relations attorney for further information.
    Answer Applies to: Ohio
    Replied: 8/3/2011
    Wallin & Klarich: A Law Corporation
    Wallin & Klarich: A Law Corporation | Paul Wallin
    Not likely but you should meet with a family law lawyer in person and go over the specific facts in detail.
    Answer Applies to: California
    Replied: 8/3/2011
    Glenn E. Tanner
    Glenn E. Tanner | Glenn E. Tanner
    If you were legally separated in Washington, and it was done correctly, the pension was divided at that time and your rights, if any, to it were determined then.If he earned it after your separation, it is his.
    Answer Applies to: Washington
    Replied: 8/3/2011
    William C. Gosnell, Attorney at Law
    William C. Gosnell, Attorney at Law | William C. Gosnell
    Generally pensions are marital assets and divided 50-50, however you present a difficult problem that a judge would have to decide. While its difficult to say I don't believe you can win. But consult a family law lawyer immediately.
    Answer Applies to: Tennessee
    Replied: 8/3/2011
    John E. Kirchner, Attorney at Law
    John E. Kirchner, Attorney at Law | John Kirchner
    You are entitled to a fair division of the marital property portion of a pension in connection with the final property settlement in a divorce. If you also have a pension, your husband will have a similar claim to it. Since you use the term "ex spouse" but only mention being "separated" since 1971 it isn't clear whether or not you are still legally married. If you are actually divorced, or if your "separation" was approved by a court, the terms of the agreement or court decree and order will control whether you have any entitlement. If you have simply been living separately, with no judicial process at all, you will need to begin a divorce case in order to request a share of the retirement pension. If you are technically still married, the fact that you have lived separately for 40 years doesn't prevent dividing the marital portion of the pension, but it may be a highly relevant factor in deciding what is fair.
    Answer Applies to: Colorado
    Replied: 8/3/2011
    Cody and Gonillo, LLP
    Cody and Gonillo, LLP | Christine Gonilla
    If you have not been living with him for that long it may be somewhat difficult but other factors may help you.
    Answer Applies to: Connecticut
    Replied: 8/3/2011
    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 spouses retirement accrued during the marriage. Whatever portion accrued before marriage and after separation is your spouses separate property. The benefits are divided on a pro-rata basis under 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, lets say your spouse started working at a company with a pension plan in 1950, the two of you got married in 1955, separated in 1971, and he retired in 1975. (For ease of calculation, Ill assume each of these events occurred on the same month and day January 1st.) In my example, your spouse accrued 16 years, 0 days during the marriage (1/1/1955 to 1/1/1971), and his total length of service was 25 years, 0 days (1/1/1950 to 1/1/1975). The community property portion is 64% (16 20 years). You are entitled to one-half of that, or 32% of your spouses pension benefit. If you got married after your spouse stopped working, then nothing accrued during the marriage 100% of his pension would be his separate property accrued prior to marriage.
    Answer Applies to: California
    Replied: 8/3/2011
    Ashman Law Office
    Ashman Law Office | Glen Edward Ashman
    Possibly, although the long separation may weigh against it. Discuss this with your lawyer.
    Answer Applies to: Georgia
    Replied: 8/3/2011
    Seattle Divorce Services
    Seattle Divorce Services | Michael V. Fancher
    Under Washington law the courts will generally divide the community property the parties acquired together during the marriage and let each party keep the separate property they acquired outside of the marriage. If you separated in 1971, anything acquired after separation is generally going to be treated as separate property. Any portion of the pension earned after marriage but before separation would generally be treated as community to be divided.
    Answer Applies to: Washington
    Replied: 8/3/2011
    Gary Moore, Attorney at Law
    Gary Moore, Attorney at Law | Gary Moore
    It all depends on how long you have been married and what portion of the pension was earned while you were married.
    Answer Applies to: New Jersey
    Replied: 8/3/2011
    ROWE LAW FIRM
    ROWE LAW FIRM | Jeffrey S. Wittenbrink
    Whether or not you are entitled to any of your ex spouse's pension depends on when it was earned and whether or not it was included in your original community property partition. Normally, when parties divorce they split all of the community assets and liabilities and sign a formal agreement regarding the split. If that was not done, and your ex spouse had earned part of his pension during the marriage, then you may still be a co-owner of that pension in a proportionate amount to the time you were married. Those rights of co-ownership do not go away, but you could lose your ability to enforce your rights if your ex-husband passes away without a court order dividing the pension.
    Answer Applies to: Louisiana
    Replied: 8/3/2011
    Vincent J. Bernabei LLC
    Vincent J. Bernabei LLC | Vincent J. Bernabei
    You may be entitled to some of his pension, depending on when it was acquired, how long you were married, and how much he receives from the pension.
    Answer Applies to: Oregon
    Replied: 8/3/2011
    Goolsby Law Office
    Goolsby Law Office | Richard Goolsby
    We recommend that you retain a divorce lawyer as soon as possible to discuss your rights and options. While it appears you have been separated for quite some time, you and your divorce lawyer can discuss all the facts, including whether or not any plan rules or other equitable grounds exist to support your claims. Again, please see a lawyer soon. Good luck.
    Answer Applies to: Georgia
    Replied: 8/3/2011
    Law Office Of Jody A. Miller
    Law Office Of Jody A. Miller | Jody A. Miller
    There are no "entitlements" in equitable division in Georgia. Consult with an experienced family law attorney regarding the possibilities of how property division may play out given the specific details and facts of your case.
    Answer Applies to: Georgia
    Replied: 8/3/2011
    Law Office of Patricia Van Haren
    Law Office of Patricia Van Haren | Patricia Van Haren
    If the pension was divided in the divorce, you would be entitled to of the community share (the amount of the pension which was accrued from the date of marriage to the date of separation). If your husband does not have the pension that was in existence in 1971, you would not be entitled to any of his now existing pension.
    Answer Applies to: California
    Replied: 8/3/2011
    Diefer Law Group, P.C.
    Diefer Law Group, P.C. | Abel Fernandez
    You are only entitled to the portion acquired during marriage. Since you separated such a long time ago, it is hard to say if you have any interest in his pension.
    Answer Applies to: California
    Replied: 8/3/2011
    Willick Law Group
    Willick Law Group | Marshal S. Willick
    Technically, separation is irrelevant to ownership of property in Nevada law, including as to pension accruals. But 41 years is a long, long time. You should confer with expert family law counsel.
    Answer Applies to: Nevada
    Replied: 8/3/2011
    Beresford Booth PLLC
    Beresford Booth PLLC | S. Scott Burkhalter
    The Court will consider all assets and debts of the marriage and make a fair and equitable division.
    Answer Applies to: Washington
    Replied: 8/3/2011
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