Divorce Pension Rights
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Divorce Pension Rights
Most states have held that pensions and retirement benefits are marital assets subject to equitable distribution by a court. The most important requirement is that such rights be acquired during the marriage. Some states allow benefits to be distributed for pension plans that began a few years prior to the marriage.
Pension benefits that accrue (i.e. gain interest) after the parties are divorced are not considered marital property and therefore are not subject to equitable distribution. A non-employee spouse who asks for distribution of an employee spouse's pension rights before the employee spouse actually retires gives up any right she has to increased payments in the future which might accrue due to increased age, longer service, or a higher salary.
Public Pension or Retirement Plan vs. Private Plan
Generally, rights and benefits under public pension and retirement plans (such as those administered for civil servants and other state or municipal employees) are treated no differently than rights and benefits under private pension plans. They will still be considered marital property insofar as they relate to employment during the marriage.
How Are Pension Rights Distributed following a Divorce?
States deal with the distribution of pension rights in a variety of ways depending on the circumstances. Some of the ways that pension rights are distributed include:
- Determing alimony or child support payments: Pension plans are typically used as a source of payment by one spouse for the support of the other or for child support. A court may award a portion of a pension plan or the entire plan for such purposes.
- As a factor in dividing other marital assets: If a court in a divorce proceeding awards the entire pension plan to one spouse, it will typically balance its value as an asset by giving an equal amount of community property to the other spouse.
Do I Need a Family Law Attorney?
A experienced family law attorney is often necessary to obtain a divorce in the first place, so they should be also able to help you obtain rights in your spouse's pension plan. Make sure you tell your attorney whether or not your spouse has a pension plan and whether he or she gained benefits from the plan while you were married. A lawyer will file all the required paperwork and make sure you receive a proper share of your spouse's assets.
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Last Modified: 05-20-2014 01:03 PM PDT
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