Family Law

Divorce Pension FAQs

Q: After divorce, will I be entitled to some portion of my husband's pension?

  • A: In most states, you would be entitled to a portion of your husband's pension. The pension plan administrator can usually pay your portion directly to you if your husband is already being paid pension benefits.

Q: Is it true that my wife will receive one-half of my pension benefits if we divorce? What if I have a government pension and don't pay into social security?

  • A: In most states, retirement benefits accumulated during a marriage are to be divided at the time of divorce. The non-participant spouse is entitled to one-half of the benefits that were earned during the marriage.

But government pensions can be an exception to this general rule when the government pension participant doesn't contribute to social security. A few states allow a social security set-off to the overall value of the government pension when valuing the portion of the pension that was earned during the marriage.

Q: My ex-husband recently passed away. As part of our divorce I waived my rights as a named beneficiary in his retirement accounts, but two of the retirement accounts still listed me as a beneficiary. Will I be entitled to this money?

  • A: In order for a beneficiary to waive retirement benefits in a divorce decree, Employee Retirement Income Security Act (ERISA) requires that the divorce decree must specifically identify the benefits being waived. The waiver you signed may have been a more general waiver and not enough to block your rights as a beneficiary to the retirement accounts to which you are a designated beneficiary.

However, your state's laws may not follow ERISA rules. For example, in some states,an ex-spouse left as a beneficiary on her ex-husband's IRA maybe entitled to the IRA even though the ex-spouse signed a waiver as part of the divorce settlement agreement. Check with a local qualified divorce attorney for advice about your specific situation

Q: When would I be entitled to receive any of my husband's pension benefits if we divorced?

  • A: Generally, pensions are divided at the time of divorce under what's called a "qualified domestic relations order" (QDRO). This is a legal document that directs the pension plan administrator to divide the pension as outlined in the divorce decree. QDROs can be prepared in a variety of different ways, as long as they comply with the company's pension plan guidelines and conform with the Employee Retirement Income Security Act (ERISA).

The non-participant spouse is usually entitled to the same rights under the plan as the participant spouse, such as cost-of-living adjustments and early withdrawal options, and is eligible to receive benefits payments as soon as the ex-spouse is entitled to receive them.

Q: Will my soon-to-be ex-wife be entitled to any pension I earn after our divorce?

  • A: It depends on the state. In some states, the ex's interest ends with your divorce, so the pension benefits accrued during those years would normally be yours. In other states, the benefits sort of build on top of the prior benefits, and the ex may enjoy a share in the benefits accrued during those years also.

Q: Will receiving a portion of my husband's pension affect child support payments?

  • A: In some states, there is what is called "double counting," which means any money you would receive from a pension that is currently paying out can be considered when determining child support. Your part of the pension would be considered "income," and that may have an impact on how much support you're awarded.

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