Can You Keep Your Pension in a Divorce?

Divorce is a challenging process that brings with it many questions and concerns. One important aspect to consider is the division of assets, especially when it comes to your pension. Can you keep your pension in a divorce, or is it subject to division? We'll go over how a pension works and what happens to your pension in the event of a divorce.

How Do Pensions Work?

Pensions are retirement savings plans that are typically provided by employers as a form of compensation for employees. They serve as a way to ensure financial stability during retirement years. There are two main types of pensions:

1. Defined Benefit Pensions: With this type of pension, the amount you receive in retirement is predetermined based on factors such as your years of service and salary. The employer is responsible for funding the pension and managing the investments to ensure there are enough funds to pay out the predetermined benefits.
2. Defined Contribution Pensions: With this type of pension, the employer contributes a certain amount of money into an individual account for each employee. The employee can choose how to invest the funds, and the final payout in retirement depends on the performance of the investments. The employee bears the investment risk with this type of pension.

If you're going through a divorce, you may be wondering what happens to your pension when dividing assets.

Can You Keep Your Pension in a Divorce?

Divorce often involves the division of assets accumulated during the marriage, including retirement accounts and pensions. Whether you can keep your pension in a divorce depends on various factors, including the laws of your state, the nature of your pension, and the terms of your divorce settlement.

In New York, pensions acquired during the marriage are generally considered marital property subject to equitable distribution upon divorce. This means that unless there's a prenuptial or postnuptial agreement stating otherwise, both spouses may have a claim to a portion of the pension accumulated during the marriage.

Here are some key considerations regarding pensions in divorce:

Classification of Pensions

Pensions earned by either spouse during the marriage are typically classified as marital property, regardless of whose name the pension is in or who contributed to it.

Equitable Distribution

New York follows the principle of equitable distribution, which means that marital property, including pensions, is divided fairly but not necessarily equally between spouses. The court considers various factors such as the length of the marriage, each spouse's financial contributions, and their earning capacity when dividing assets.

Valuation of Pensions

Valuing a pension for purposes of equitable distribution can make things difficult. It often requires the assistance of financial experts who can assess the present value of the pension and determine the portion attributable to the marriage.

QDROs and Pension Division

Qualified Domestic Relations Orders (QDROs) are court orders that establish the rights of a spouse to receive a portion of the other spouse's retirement plan or pension. A QDRO allows for the direct transfer of funds from the pension plan to the non-employee spouse without tax penalties.

Negotiating Settlements

In many cases, spouses may negotiate the division of assets, including pensions, outside of court through a settlement agreement. This allows for more flexibility and control over the division of assets.

Considerations for Defined Contribution vs. Defined Benefit Plans

The division of pensions may differ depending on whether the pension is a defined contribution plan (e.g., 401(k)) or a defined benefit plan (e.g., traditional pension). Defined contribution plans may be easier to divide because they have identifiable account balances, whereas defined benefit plans may require more complex valuation methods.

Ultimately, whether you can keep your pension in a divorce depends on the specific circumstances of your case and the laws of your jurisdiction. It's essential to consult with a knowledgeable divorce lawyer like those at Michelle S. Bullock Law & Mediation PLLC to understand your rights regarding pension division and pursue a fair outcome in your divorce settlement.

How a Family Law Attorney Can Help You

Navigating the complexities of divorce and dividing assets, including pensions, can be overwhelming and emotionally draining. This is where Michelle Bullock can provide invaluable assistance. Here are some ways in which our legal team can help you during the process.

Family law attorney Michelle Bullock offers compassionate representation at competitive rates to clients throughout Western New York. With over 25 years of legal experience, she has the knowledge and expertise to guide you through the intricacies of divorce law and help you achieve a favorable outcome.

When negotiating the division of assets, including pensions, a family law attorney can provide crucial support. We can help you understand your rights and advocate for a fair distribution of the pension based on factors such as the length of your marriage and each spouse's financial contributions.

If your case goes to court, a family law attorney can represent you and advocate for your interests. We'll present evidence, argue your case, and fight for a fair division of the pension. Having an experienced attorney by your side can significantly increase your chances of achieving a favorable outcome in court.

A family law attorney can also assist you in mediation or alternative dispute resolution processes, where you and your spouse work with a neutral third party to reach an agreement. We can provide guidance and support throughout the process, helping you navigate any issues related to the pension division and ensuring that your rights are protected.

Consulting with a knowledgeable family law attorney from our firm is crucial to understanding your rights and pursuing a fair outcome in your divorce settlement.

Contact Us Today

At Michelle S. Bullock Law & Mediation PLLC, we're pleased to offer free initial consultations. To schedule a consultation, fill out our online contact form or call us at 716-381-9036.