A Spouse's Rights to Pensions in a Divorce
Question: My husband recently filed for divorce. He works for a company that has an excellent pension plan. Although I am working, I do not have a pension. Is there a way for me to get part of his pension?
Answer: A pension earned during a marriage is considered a joint asset of the couple. During a divorce, special actions must be taken to divide this joint asset. If these actions are not taken, you can lose your right to the pension benefits. Because dividing a pension is complicated, you should talk to an attorney.
If you are going through a divorce and your spouse has a pension, you should work with your attorney to take the following steps:
- As soon as the divorce proceedings begin, you or your attorney should write a letter to your spouse's pension plan. Tell the plan administrator you are in the process of a divorce and request information about the pension plan. A spouse or former spouse has the right to receive this information.
- Ask for a share of your spouse's pension at the time of the divorce. If the court decides it is fair to split the pension, you will receive part of the pension in the property settlement. Your attorney can tell you the best way to split the pension. The attorney will look at things like your age, your spouse's age, the kind of pension, your spouse's retirement status and other factors.
- The divorce settlement must refer to each pension plan. If your spouse has a 401(k) plan and a traditional pension, the settlement must refer to each plan so you can receive benefits from both plans.
- You will need a separate court order to present to the pension plan so you can enforce your right to part of the pension after the divorce. This order is called a qualified domestic relations order (QDRO).
- Your spouse's plan administrator will have information about the QDRO procedures. The pension plan must approve the QDRO before you ask for court approval. Each pension plan is different, and many companies have developed their own QDRO forms to smooth the process. When the court issues a domestic relations order giving you part of your spouse's pension, you or your attorney will need to send a copy to the pension plan administrator immediately.
- Settle all pension issues before the court finalizes your divorce. Make sure the pension is listed in your property settlement and in a QDRO. If you do not get a QDRO at the time of your divorce, you will have to go back to court and get one. This will result in additional legal fees and may cause you to lose your share of the pension.
All pensions are different. Getting a fair share of your spouse's pension is almost always a complicated process. It is important to get help from an attorney with expertise in divorce and QDRO issues.
If you have questions about pension rights during a divorce or other pension questions or issues, you should contact the Upper Midwest Pension Rights Project at 800-992-8161. The Project can give FREE legal help to Iowans with pension related issues.