Virginia Retirement Funds and a Divorced Spouse's Rights

By Anna Assad

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.

State and General Retirement

Property division in a divorce may include a spouse's retirement plan funds. Marital property includes typical retirement plans, such as a 401(k), and pension plans from state agencies in Virginia. The judge divides retirement funds according to the equitable distribution standards, but he only includes the amounts accumulated during the marriage. An ex-spouse may only receive up to half of her former spouse's accumulated retirement funds during the property division.

Military Retirement

Virginia allows for the inclusion of military pensions in property division. Whether a spouse is entitled to part of her former spouse's military pension depends on how the judge divides the property in her divorce. If she's awarded part of a military pension, she may receive her share directly from the armed forces branch paying the pension; if her share exceeds more than half the retirement pay, the difference is paid by her ex-spouse. The armed forces will only pay her directly if she was married to her spouse for at least 10 years and her spouse had at least 10 years of service that counted toward his retirement while the couple was married.

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Social Security

An unmarried person may receive benefits based on her former spouse's Social Security record if the couple was married for at least 10 years and her benefit is lower than her ex-spouse's. Her former spouse must be at least 62 for her to receive Social Security benefits from his record and she must be entitled to collect Social Security. If she remarries, she can't collect on her former spouse's record unless her subsequent marriage ends in divorce or is annulled or her subsequent husband dies.

Considerations

A Virginia court may award a person part of her former spouse's federal pension or retirement fund. However, federal laws govern how the pension is divided and what the spouse must do to claim her share, so she may need legal assistance. Money in retirement funds, such as a 401(k), that accumulated before marriage is considered separate property and not included in the divorce settlement.

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References

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