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Do I get a share of my ex’s retirement benefits if we divorce?

On Behalf of | Sep 2, 2021 | Equitable Distribution |

Married couples in Fort Myers often take on different responsibilities in their daily lives for the betterment of both them and their family. One spouse might do the cooking while the other spouse does the laundry. On a bigger scale, one spouse might work outside the home, bringing in a lucrative salary while the other spouse stays out of the workforce to care for the home and family.

This arrangement can be alright for a while, but for some couples, long hours spent out of the home while climbing the corporate ladder combined with the amount of work it takes to care for a home and young children essentially on your own can strain a marriage. Some couples find that these pressures are too much, and they will divorce. The stay-at-home spouse may be concerned about their financial future, especially retirement since they have not held a job for years. Is a stay-at-home spouse entitled to a share of their ex’s retirement benefits in a divorce?

Are retirement funds separate property or marital property?

To determine whether a spouse is entitled to a share of their ex’s retirement benefits in a divorce, first we need to understand the difference between separate and marital property.

Separate property includes that which was owned by one spouse or the other prior to getting married. Certain assets, such as an inheritance made to one spouse only are also considered separate property regardless of when they were obtained. Separate property is not included in the marital estate and will not be divided in the event of a divorce.

Marital property, on the other hand, includes any income and assets made or purchased while a couple is married, regardless of who bought the assets or earned the income. Each spouse has an ownership interest in marital property, and it will be divided in the event of a divorce. Florida is an “equitable distribution” state. This means that property will be divided in a divorce as equally as possible unless there is a just reason for an unequal distribution. Vested and nonvested funds accrued in a retirement account or pension plan while a couple is married are considered marital assets.

Do I need a QDRO to get my share of a 401(k) or pension?

If a spouse is awarded a share of their ex’s 401(k) or pension in a divorce, it takes more than simply having the judge sign off on the divorce decree to make the transfer complete. In order for a pension or 401(k) to be divided, the court must issue an additional order known as a Qualified Domestic Relations Order (QDRO).

A QDRO allows the funds in one spouse’s retirement account to be withdrawn and rolled into the other spouse’s retirement account, usually an IRA. Note that the QDRO must be completed before the divorce is finalized. Once the divorce is finalized, neither spouse can go back to court to ask for additional assets; the property division process is finalized when the divorce is finalized.

If you have been a stay-at-home spouse for many years and are now facing divorce it is normal to be worried about how you will support yourself. Fortunately, your non-financial contributions to the household count towards determining a fair division of property including retirement accounts.


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