Is My Spouse Entitled To My Pension in a Divorce?

Updated August 2, 2023
20 min read
Is My Spouse Entitled To My Pension in a Divorce?

Introduction

Dividing up assets between divorcing spouses can be a complex process, especially when it involves a pension in a divorce, especially if you’re nearing retirement. To make sure you don’t lose too much from your hard-earned pension, it’s important to know whether your ex-spouse is entitled to your pension or at least a portion of it.

Below, we’ll discuss the different ways your spouse may claim your pension or a portion thereof, the factors that may affect the division, and other questions you may have about the topic.

Can My Ex-Wife (or Ex-Husband) Claim My Pension Years After the Divorce?

When it comes to pensions in divorces, you may wonder: “Can ex-wife claim my pension years after divorce?” The answer to this depends on what the court ordered during the divorce proceedings. If there was no division of pension benefits ordered in the decree, then the answer is no. That is unless your former wife or husband can show that you used force or duress to get you to agree not to divide pension benefits.

On the other hand, if the court order stipulates a division in your pension benefits, then you will have to comply with this order. The Divorce Settlement Agreement should also indicate the extent of the spouse’s pension rights after the divorce.

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What Happens If You Are Not Retired at the Time of Your Divorce?

In many states, a pension in a divorce is considered a joint marital asset between spouses. Since you made contributions to your retirement fund during the marriage, there is a legal presumption that such contributions are the fruits of the marriage. As a result, both spouses may be entitled to reap the rewards of their contributions to the marital property. In most cases, each spouse is entitled to half the pension.

If you are not yet at retirement age at the time of your divorce, the court may include an order in the divorce decree as to your entitlement to future pensions. Without such an order, your spouse will not be entitled to your pension.

What Factors Will Determine How Your Pension Plan Is Divided?

When dividing a pension plan in divorce, it depends on state law. In community property states, such as Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin, the pension, similar to all marital property, divides equally between spouses up to when the divorce is final. However, if you’re in an equitable distribution state, the court will determine a fair division of the pension up to when the divorce is final, which may not necessarily be in equal parts. The division will depend on many factors, such as how much each spouse contributed to the marriage, education level, earning capacity, child custody, and more.

So, how is a pension calculated in a divorce? To find out how a court calculates a pension in a divorce, try to look for a pension divorce calculator online to give you a good estimate of how much your spouse may be entitled to.

How do courts divide pension benefits?

There are two methods the court may determine the division of pension benefits when it comes to pension in divorces.

  • The present value method. Here, the court will estimate the pension’s value. Based on this value, it will order you to pay your spouse a certain amount of money.

  • The deferred distribution method. This involves the appointment of a pension plan administrator, who will be responsible for dividing the pension and paying both spouses what each of them is entitled to.

Which is best: the present value method or the deferred distribution method?

That decision depends on how much information you have available about the pension in the divorce at the time of the divorce. If at this time, it is relatively easier to estimate the pension’s value, then the present value method is a good option. It’s best to consult a divorce attorney to help you weigh your options.

What Is a Qualified Domestic Relations Order?

A Qualified Domestic Relations Order (QDRO) is a document that is part of the divorce agreement when dealing with a pension in a divorce. This document states the entitlement of a spouse, former spouse, child, or other dependent to retirement assets such as pensions. This document will also necessitate the appointment of a pension plan administrator, who will then divide the pension according to the information in the QDRO. This is only necessary when using the deferred distribution method in dividing up pensions.

To make sure this document is well drafted, make sure your attorney has experience in drafting QDROs.

What About Military Pensions?

Under the Uniformed Services Former Spouse Protection Act (USFSPA), courts may apply state law in deciding on the division of military pensions in divorce. Similar to other pensions, the divorcing spouses should obtain a court order on how to divide the pension, during the divorce proceedings and not after.

If you qualify, your spouse may also receive a portion of your military pension directly from the Defense Finance and Accounting Service (DFAS).

Conclusion

Splitting pensions with your ex-spouse does not have to be a tedious process. And while you deserve to reap the fruits of your labor once you retire, remember that your ex-spouse may also be entitled to a divorce pension payout. To make sure that you get to keep what you are entitled to without shortchanging anyone, it’s best to consult a certified financial planner and an attorney who has experience in working with pensions and divorce.

Article by
Inna Chumachenko
Lawrina

Inna Chumachenko is the Content Lead at Lawrina. She is responsible for managing all the content found on the blog, guides, and other website pages. Inna has a degree in philology and a vast interest in law. In her role at Lawrina, Inna oversees the content team, establishes collaborations with writers, and curates content from various contributors.

If you have any questions or suggestions regarding the content for Lawrina, please feel free to contact Inna directly via email at i.chumachenko@lawrina.org or connect with her on LinkedIn.

Frequently Asked Questions

What if my ex-spouse remarries?

If you are the one earning the pension and your former partner remarries, this makes them part of another family unit. This may mean that at some point, they may also be entitled to their new spouse’s retirement benefits. Therefore, in most cases, they will no longer be entitled to most spousal benefits from you, including your pension. 

What if I remarry? Will my ex-spouse no longer be entitled to my pension?

Yes, your ex-wife or husband will remain entitled to the same spouse pension rights after divorce, regardless of your marital status. 

How to keep your pension in a divorce?

If you don’t want to share half of your pension (or more) with your spouse, then you might want to propose alternative ways to compensate your spouse. You may offer to give existing assets or purchase a life insurance policy with your spouse as a beneficiary. If your spouse also has their own retirement benefits, check if theirs is of similar value to yours. In this case, you may simply agree to part ways without having to dip into each other's pensions. It might also be beneficial to take a look at some other family-related templates for further guidance.