Dividing Retirement AssetsThe following questions and answers about dividing retirement assets can help you understand how such plans are divided and what needs to be taken into consideration.
Is he allowed to use my retirement information in court? Agraciada's Question: My ex-husband illegally obtained my military retirement record printout which has my social security number, DOB, earnings, and used it in court as evidence for more money. My lawyer never objected even though Shouldn't my lawyer have done something? Brette's Answer: You would need to provide that information to the court anyhow. Elaine's Question: My husband and I have been married almost 33 years. We are retired and live on his pension as I am too young for Social Security. If we divorce, do I have any right to part of his pension? Without that, I'd have no income for a minimum of 6 years. Brette's Answer: When you divorce, you are entitled to be supported by your spouse, which includes taking a percentage of his pension. You are also entitled to a portion of the assets of the marriage, as well as part of your spouse's future Social Security income. You should see an attorney to discuss the details of your situation. » Return to top Will giving retirement funds to my child prevent my husband from getting them in the divorce? Kim's Question: My husband and I are in the process of uncontested divorce, but now he has stated that he wants 1/2 of my 401k. Can I take money from my 401k and give it to my daughter as a gift to avoid my husband getting the funds? Brette's Answer: First of all, if you disagree about your 401k, your divorce is not uncontested, unless you have filed papers and he has either not responded or has filed paperwork stating he is not contesting it. If that is the case, he has no say over the division of the assets since he has waived his right to participate. If you are in a situation where that has not happened and you agree about everything but this one situation, that's different. No, you cannot take money out and give it to your daughter. The money is a marital asset and must be divided in the divorce. Good luck. Can I stop him from taking cash out of his pension? Faye's Question: My husband and I are separating. I have found out that he is taking a cash out on his pension plan. The spouse has to give consent. Am I entitled to half of the pension money? Brette's Answer: To stop this, you need to open a divorce or separation proceeding and ask for an order estopping him from dissipating marital assets. You have an interest in his pension since it is a marital asset. How it will be divided will be decided by the court as part of your overall financial order. » Return to top Topic: Divorce and Pension Plan Division Karen's Question: As a teacher, I have a state pension retirement account presently valued at $40,000+. Does my husband (ex) get 1/2 of the cash value or present value of my pension fund? Brette's Answer: You need to speak to an attorney in your state. There are a variety of factors that will influence the division of a pension, including when you accrued it, your state's theory of property division, your other marital assets, and how your settlement is framed. » Return to top Who handles the division of a retirement plan? Joanie's Question: I am supposed to be getting a certain amount of my husband's 401K and retirement fund. When I ask my lawyer, she says she doesn't handle this, my husband does. Is this true? Brette's Answer: The plan administrator has to do it and
your husband has to get the paperwork going. However, your attorney should
follow up with his about it. Topic: Divorce and Pension Plan Pay Out Cecilia's Question: In my divorce settlement, I am entitled to 1/2 of a pension provided by vesting in the place my husband works for. How do I collect it. Brette's Answer: To get your pension pay out you have to talk to the plan administrator. » Return to top Topic: Divorce and 401K Division Nikki's Question: I live in an equitable distribution state. My husband worked little over the years by choice, had a provable open affair and has been in trouble with the law for substance abuse problems (he is currently on probation). Is my husband entitled to 50% of my 401(k) when divorcing. Brette's Answer: Equitable distribution means assets and debts will be distributed in a way that is fair, not necessarily 50/50. Whether your spouse is entitled to part of your 401k, or to any assets, will be dependent on the big picture. The fact that he had an affair is probably not relevant, unless your state allows that to be considered in property distribution. Each party's financial situation is relevant. Talk to your attorney. » Return to top He never gave me a release to speak to the plan administrator. Catherine's Question: I was divorced 12 years ago. The decree states that I am entitle to a portion of his retirement based upon the time we were married. He was supposed to give me a release to speak with a plan administrator, but has not to date. He is taking funds out of the account now, and I am wondering what my options are. Brette's Answer: Get an attorney and go back to court because he has violated the order. Topic: 401K and Divorce Distribution Gina's Question: If I want part of my ex-husbands 401 K, do I have to wait until he retires to get it? Brette's Answer: No, if you are awarded part of your spouse's 401K, your part is removed upon issuance of the judgment or order. However, in order to get this money, you need an attorney to prepare a QDRO - qualified domestic relations order, which must be written to meet the specific 401k plan requirements. When you get the money, you roll it over into an IRA for your own retirement purposes. » Return to top Can I sue for retirement division after the divorce is finalized? Judy's Question: Is it possible to sue for any retirement accounts after the divorce has been finalized 5 years ago? Brette's Answer: It is possible, but to change the terms of the financial settlement you either need to show that there wasn't proper disclosure at the time of the judgment, or that there has been a change in circumstances. You should pull out your divorce decree or settlement and read it and possibly consult an attorney who can interpret it. This should have been handled at the time of the divorce, and most likely was. If not, it is something that could be revisited. You should talk to an attorney who can discuss the particulars of your situation in light of your state's specific laws and requirements. » Return to top Can a divorce be appealed to remove the retirement clause? Martha's Question: My husband and his ex were divorced about 9 years ago, and she received 1/2 of his retirement in the uncontested divorce. Can he reopen the file after this amount of time? His retirement is coming up and we feel he has been ripped off. Brette's Answer: You don't get to go back and have a case redone just because you think it didn't turn out the way you wanted. He could have appealed at the time, but the opportunity for that is long past. » Return to top
Related Articles: Brette Sember is a former family and
matrimonial attorney and mediator, nationally recognized expert, and author of
many books including
The Divorce Organizer & Planner,
No-Fight Divorce, and
How To Parent With Your Ex.
This column provides general information about the various aspects of divorce. It is not intended to take the place of legal counsel and should not be considered personal legal advice. For specific recommendations concerning your situation, please retain experienced legal counsel. WomansDivorce.com and Brette Sember disclaim any liability from any claim arising from any information contained in this column. This column is not a substitute for legal advice. Divorce
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