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.

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.

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.

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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.

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Pension Law for a Georgia Divorce
 

References

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Divorce Laws and State Pension Plans in Oklahoma

Oklahoma state employees may qualify for state-administered retirement plans, including the Oklahoma Public Employees Retirement System (OPERS) and other retirement systems for teachers, police officers and firefighters. These retirement plans can be one of the biggest assets in a divorce, and they can be split as part of the divorce process.

Non-Vested Pension Division During a Divorce

When you divorce, the court will issue a divorce decree that, among other things, divides the property you and your spouse accumulated during your marriage. Like real estate, bank accounts and personal property, pensions are considered property that can be divided by the court. Non-vested pensions can be more complicated to divide because the benefits have not yet been fully earned.

Spouse's Rights to Military Benefits

As a civilian spouse, your military benefits are typically based on your marital status and a divorce may mean losing those benefits. For example, you may have to give up military health insurance and the ability to shop at the exchange and commissary. However, federal law may allow you to keep these benefits if you have been married for at least 20 years. A divorce court can also award you a portion of your spouse’s retirement pay and can force your spouse to sign up for a plan that pays benefits to you if he dies after retirement.

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