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:

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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