QUESTION
Is a retirement account always split up during divorce?
Asked on Aug 06th, 2012 on Divorce - California
More details to this question:
I have a retirement where I work. If the divorce decree does not mention my retirement, does my spouse get awarded any of it at any time?
23 ANSWERS
Probate Law Attorney serving Colorado Springs, CO
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John E. Kirchner
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Not necessarily. All marital property must be fairly distributed, but that rule applies the overall result - not each item separately. Every case will be different, but if there are other assets that can be used to offset the marital interest in your retirement account that may be the preferred outcome. If you and your spouse cannot reach a complete agreement on property issues, a judge will more than likely split the retirement account unless there is something of comparable value to give to your spouse.
Answered on Sep 09th, 2012 at 9:41 AM
Suzanne H. Lombardi
In Alaska if your divorce decree does not mention your retirement and there is no appeal of the divorce the chances are that your spouse will not be awarded any retirement. An attorney can help you review the paperwork just to make sure that retirement is not an issue.
Answered on Aug 23rd, 2012 at 12:46 PM
It is supposed to be dealt with. If it was not dealt with it is probably because you (and your former spouse) did not bring it up. As it was not dealt with, it can be dealt with later. I suggest you make later now and divide the retirement. It is fairly common, if both spouses have a retirement, that each spouse may keep his/her own. Even so, if that is what happened, it should have been spelled out. No matter what, save your former spouse and your heirs a lot of tears and frustration and go back and deal with this now.
Answered on Aug 23rd, 2012 at 12:45 PM
Family Law Attorney serving Calabasas, CA
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Shulman Family Law Group
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If it is community property and was an "omitted asset" she can come back into court to get her share. If it was considered in the settlement and she was given something to offset it, then no. If it was never disclosed in your financial disclosures, she could ultimately get more than half due to fraud.
Answered on Aug 23rd, 2012 at 12:45 PM
Car Accidents Attorney serving Milwaukee, WI
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Velez, Moreno & Vargas, LLC
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Pensions are usually mentioned in the Marital Settlement Agreement or Proposed Orders depending on what was used in a particular divorce. If either of these documents were used in your divorce and neither of them mentions your pension then more likely than not your pension is yours.
Answered on Aug 23rd, 2012 at 12:45 PM
Child Custody Attorney serving Malvern, AR
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Law Office of Gregory Crain
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No.
Answered on Aug 23rd, 2012 at 12:44 PM
Real Estate Attorney serving Williamstown, NJ
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Law Offices of Slotnick & Schwartz
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It should have been split in the divorce but since it was not your spouse has no rights to any of the retirement account.
Answered on Aug 17th, 2012 at 2:54 PM
Alternative Dispute Resolution Attorney serving Coral Gables, FL
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Robert J. Merlin, P.A.
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Any asset that is not mentioned in the final decree remains with the person who owned it before the final decree.
Answered on Aug 17th, 2012 at 2:54 PM
Dennis P. Mikko
The final Judgment of Divorce should spell out the division of all marital assets. If the Judgment is silent as to your retirement, it is still yours. The question becomes why was it not mentioned in the Judgment. If it was by mistake, your ex-wife may be able to petition the court for reconsideration. However, it is also possible that your ex-wife received other property in the divorce in lieu of your retirement.
Answered on Aug 17th, 2012 at 2:52 PM
If it was acquired during marriage it is community property. It doesn't always have to be divided. Sometimes a person will trade off that asset for another, such as a SEP-IRA account or a house. If you and the other spouse cannot reach agreement, the court will order a division of all property acquired during marriage.
Answered on Aug 17th, 2012 at 2:52 PM
Retirement benefits earned during the marriage are an asset to which both parties are entitled. The benefits can either be split up or the value of the benefits can be offset with another asset so that the employee spouse keeps all of the retirement benefits by giving up something else. If not mentioned in the Judgment, the case can be reopened to divide the asset.
Answered on Aug 17th, 2012 at 2:50 PM
Civil Attorney serving Spokane, WA
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Glenn E. Tanner, Attorney at Law
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The court divides all assets and debts but depending on what your spouse gets, it may balance out the retirement so it doesn't have to be technically divided.
Answered on Aug 17th, 2012 at 2:50 PM
1 Award
Yes, your ex-spouse is entitled to her one-half community interest in it. When you divide the community property, you will account for your retirement.
Answered on Aug 17th, 2012 at 2:50 PM
Criminal Defense Attorney serving Calabasas, CA
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Law Office of Bernal P. Ojeda
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Yes it's an omitted asset. Address it now. Don't sit on this.
Answered on Aug 17th, 2012 at 2:48 PM
If your final decree does not mention anything about your retirement, then your husband is not allowed to go back in time and ask the court to reconsider the judgment, by adding your retirement. This is why it is called "Final." It's just that, he cannot at any time, go back and revise.
Answered on Aug 17th, 2012 at 2:48 PM
A retirement account can be an asset subject to division.
Answered on Aug 17th, 2012 at 2:47 PM
Criminal Defense Attorney serving Anchorage, AK
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Buchholdt Law Offices
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Not always, but usually - nearly always.
Answered on Aug 17th, 2012 at 2:47 PM
Appellate Attorney serving Grosse Pointe Farms, MI
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Musilli Brennan Associates, PLLC
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I would have to read the judgment, but if it is awarded it is yours unless there was a mistake or the asset was hidden.
Answered on Aug 17th, 2012 at 2:46 PM
William C. Gosnell
Yes. A retirement account is marital property. It must be divided or you can buy out her interest. If not mentioned in a divorce, the company will give her one half so you need to have an agreement.
Answered on Aug 17th, 2012 at 2:42 PM
Gregory Graf
If the permanent orders or dissolution agreement do not award the spouse a portion of the retirement account, she's not entitled to any of the account. She can ask the court to award her a portion of the retirement account if it was not disclosed prior to trial or prior to any agreement you reached.
Answered on Aug 17th, 2012 at 2:39 PM
Dave Hawkins
No. However, if the decree failed to mention it, she could go back into court to address the issue. A trial court has an obligation to divide all property of the marriage. You had the obligation to disclose the fact the you had a retirement account. You need to retain counsel.
Answered on Aug 17th, 2012 at 2:39 PM
Before answering your question, I would have to know WHY your divorce decree does not mention your retirement. Was it left off your Financial Affidavit that you filed with Court?
Answered on Aug 17th, 2012 at 2:38 PM
Criminal Law Attorney serving Fremont, CA
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Steven J. Alpers, A Professional Corporation
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Most likely, the court would allow the reopening of the case to add omitted property, particularly if you fail to include the retirement in your proprety disclosure documents.
Answered on Aug 17th, 2012 at 2:37 PM