Can an Ex-Wife Get Retirement Pay From the Husband if He Retired After the Divorce?

By Heather Frances J.D.

Courts divide marital property -- including retirement benefits -- when a couple divorces. Even if a spouse has not yet retired, the divorce court can divide both the assets in his retirement account and pension benefits he owns at the time of the divorce. However, courts do not typically reopen a divorce case once one spouse retires to give a portion of his retirement to the other spouse.

Courts divide marital property -- including retirement benefits -- when a couple divorces. Even if a spouse has not yet retired, the divorce court can divide both the assets in his retirement account and pension benefits he owns at the time of the divorce. However, courts do not typically reopen a divorce case once one spouse retires to give a portion of his retirement to the other spouse.

Marital Assets

Retirement plans are marital assets and courts often treat the portion of benefits earned during the marriage as marital property divisible in a divorce, just like other marital property. Typically, only this marital portion is divisible since a spouse’s premarital contributions are considered to be that spouse’s separate property. Like other marital assets, retirement plans must be addressed and divided at the time of the divorce. If the retirement account is overlooked during the divorce, it usually is not possible to reopen the divorce case and ask for a share later -- unless a spouse fraudulently hid the plan’s existence from the other spouse.

Divorce is never easy, but we can help. Learn More

QDRO

Many retirement plans require a Qualified Domestic Relations Order, or QDRO, to distribute a portion of the plan to an ex-spouse, including most employer-sponsored plans. QDROs are court orders that give someone other than the participant in the plan the right to receive a portion of the plan’s benefits. QDROs are necessary to override provisions in the Employee Retirement Income Security Act that would otherwise prohibit benefits from being diverted to someone other than the plan participant.

Implementing a QDRO

When a spouse’s retirement benefits are split by a QDRO, some plans allow the recipient spouse to cash out her share at the time of the divorce. Although she will pay taxes on the money she receives, it won’t be the usual 10 percent penalty for early withdrawal if the cash out is because of a divorce decree. She can also roll over the funds into a retirement account of her own or begin taking distributions at the time her ex-spouse retires, even if his retirement is years after their divorce.

Social Security

Social Security retirement benefits are not considered marital assets subject to division in a divorce since a state judge has no authority to divide them. A person might still be able to collect Social Security benefits based on her ex-spouse’s work record, once the covered ex-spouse becomes eligible to receive them, if the marriage lasted at least 10 years and his benefits are greater than hers.

Divorce is never easy, but we can help. Learn More
Federal Retirement Benefits for Divorced Spouses

References

Related articles

Division of Pension Benefits During a Divorce in Maryland

When couples divorce, they can reach an agreement about how their assets should be divided, and the court can adopt that agreement as part of the divorce decree. However, if a couple cannot agree on property division, including the division of a pension, Maryland courts step in to split the marital assets.

After a Divorce Ruling, What Is a QDRO?

A qualified domestic relations order, also known as a QDRO, is a legal document that allows an individual to give another person the right to receive all or part of his retirement benefits. A QDRO is typically the result of the division of marital property after a divorce, since the majority of retirement benefits may have been earned during the marital period and the court may decide that a spouse is entitled to part of those benefits.

Virginia Retirement Funds and a Divorced Spouse's Rights

Virginia divorce law allows a person to share in her former spouse's retirement plans in some cases. Virginia is an "equitable distribution" state, so a judge in a divorce case divides property between the couple based on what he believes is fair. A judge may include retirement funds as part of the distribution if doing so gives each spouse a fair share.

Get Divorced Online

Related articles

Divorce Laws and State Pension Plans in Oklahoma

Oklahoma state employees may qualify for state-administered retirement plans, including the Oklahoma Public Employees ...

Tips Regarding a Husband's Retirement Benefits in a Divorce

Financial disputes take center stage in many divorces and a court may decide how a couple must divide their assets ...

Social Security Benefits for a Non-Working Spouse After a Divorce

Social Security administers retirement and disability insurance programs. To be eligible for benefits, you must earn ...

Disability in a Military Divorce

If a servicemember becomes disabled due to an injury related to his service, he may receive payments from the ...

Browse by category
Ready to Begin? GET STARTED