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In Divorce, Am I Entitled to Half of My Spouse's Retirement?

By Ephrat Livni, Esq. | Last updated on

When you got married you imagined that you and your true love would retire together in Florida after a long and fulfilling marriage. But things did not work out and now you and boo are splitting up your lives and cutting your losses.

Are you entitled of a share of the money that your spouse put into a retirement plan when you were together? And if so, how will you collect, considering the many years left before this plan is tapped?

Entitlements Vary

Whether you are entitled to a portion of your now ex-partner's retirement plan will depend on a few things. First, do you live in a community property state or one that follows equitable distribution laws?

In community property states -- Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington and Wisconsin (and Alaska should the couple elect this form of distribution) -- all property acquired during the marriage is split in half. That includes money earned and saved in a retirement account.

If you live in a community property state, you are entitled to half of the money saved in a retirement plan during the marriage. But you are not entitled to just half of everything the other person ever earned, which means that if your spouse started saving decades before you met, you will not get half of the money earned before you married.

In equitable distribution states judges determine a fair distribution of assets based on a number of factors, including length of the marriage, spousal contributions, ability to earn in the future and more. You can't be sure that you will receive half of the money saved in a retirement account but you can certainly make arguments that you are entitled to as much.

QDRO Low Down

If you are getting divorced and are entitled to a portion of your spouse's retirement plan, this will be court ordered in a Qualified Domestic Relations Order (QDRO). This allows an ex-spouse to collect funds from a retirement account. These orders are used to pay out the portion that is due either in the community property split or as spousal or child support. In other words, you don't have to wait until your spouse actually retires to receive the funds.

Talk to a Lawyer

If you are getting divorced, or are considering divorce, consult with an attorney to get an idea of what is ahead and what to expect. Many attorneys consult for free or no fee and will be happy to talk to you about your case.

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