A Spouse's Right to Retirement Assets (including 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 retirement plan. Is there a way for me to get part of his pension?

Answer: Retirement plan assets, including pension benefits 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 retirement benefits. Because dividing a retirement plan is complicated, you should talk to an attorney.

If you are going through a divorce and your spouse has a retirement plan, 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 retirement plan. Tell the plan administrator you are in the process of a divorce and request information about the retirement plan. A spouse or former spouse has the right to receive this information.
•    Ask for a share of your spouse's retirement assets at the time of the divorce. If the court decides it is fair to split the plan benefits, you will receive part of the retirement plan in the property settlement. Your attorney can tell you the best way to split the assets. The attorney will look at things like your age, your spouse's age, the kind of plan, your spouse's retirement status and other factors.
•    The divorce settlement must refer to each retirement plan. If your spouse has a 401(k) plan and a traditional pension (or other retirement plan), the settlement must refer to each plan separately.
•    You probably will need a separate court order to present to the retirement plan so you can enforce your right to part of the assets after the divorce. Most commonly, this order is called a qualified domestic relations order (QDRO).
•    Your spouse's plan administrator will have information about the QDRO procedures. The retirement plan must approve the QDRO before you ask for court approval. Each 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 retirement assets, you or your attorney will need to send a copy to the retirement plan administrator immediately.
•    Settle all retirement plan issues before the court finalizes your divorce. Make sure the plan 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 retirement plan.

All retirement plans are different. Getting a fair share of your spouse's retirement plan 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 retirement plan rights during a divorce or other retirement plan 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 retirement plan related issues.