Are You Entitled to Some of Your Husband’s Retirement Savings In Your Divorce?

Aside from your home, it is likely that the retirement accounts you and your husband hold make up a large portion of your shared assets. Divorce accounts, like 401(k) plans, IRAs, and pension funds come with a lot of rules and regulations, which makes them a little tricky to tackle in divorce. However, retirement accounts ARE assets and can be considered martial property. That means you are likely to be entitled to some of your husband’s retirement assets, especially if he was the primary breadwinner in your household.

Can You Receive Part of His Retirement Benefits?

Any income that your husband added to his retirement accounts while you were married or any amount that he became vested in a pension plan during marriage will be considered marital property. As long as the money invested did not come from an inheritance or as a gift or isn’t protected by a prenuptial agreement, it should be on the divorce negotiation table.

Before you sign your name on the divorce settlement make sure you understand exactly what the tax implications are for dividing retirement assets. Since retirement vehicles are so complicated, it is really a good idea to use an experienced divorce attorney to guide you in this process.

By the way, this rule cuts both ways. If you have built up retirement savings during the marriage, your soon-to-be-ex is likely entitled to part of your retirement savings.

Get a QDRO

If your husband has a pension or a 401(k) plan, you’ll want to ask the court to issue a Qualified Domestic Relations Order, known as a QDRO, which you can serve to your husband’s employer. The QDRO will allow your husband’s employer or retirement administrator to move funds from his account and place them in your retirement account without any penalties. We can’t stress enough how important this document is. Without it, your husband could end up with your share of the retirement instead of you.

Get a Lump Sum Payment Instead?

It is always possible for you to take a lump sum withdrawal from your husband’s retirement account if you both come to that agreement, but be aware of the tax penalties you’ll face. For example, if you ask your husband to hand over half his IRA to you in cash and you are under the age of 59 ½, that payment will get hit with a 10% withdrawal penalty. Additionally, he’ll have to report the total amount as income and pay income tax on it. If the amount is large enough, it might even get taxed in a higher tax bracket!

Think about how much money you need right now and where you are in your own retirement savings plan. If you can, use a QDRO to move your husband’s retirement savings into a new, separate IRA for yourself so you can focus on your own retirement savings. Of course, not every woman can afford to start saving money right away after a divorce. If you need the money to pay your legal bills or to start your life over, then you may have to simply swallow the taxes and penalties. Another option is to negotiate for cash from another source instead of your husband’s retirement accounts, such as from his stock options or RSUs, so that you can avoid an early withdrawal penalty.

Get Expert Help

Dealing with retirement accounts can quickly get messy, and many divorce attorneys mishandle QDROs. Military pensions, and pensions from the federal government, state government, county, or city all have their own rules and require their own expertise. Don’t try to negotiate these tricky subjects on your own and get burned with unknown taxes, penalties, and laws. Hire a knowledgeable divorce attorney or at least an attorney with contacts with specialists who can work with her on your divorce. It’s worth the extra money to make sure you get what you are owed in your divorce.

Have more divorce questions? You can always read more great advice in our divorce article archive, but we also recommend attending the next Second Saturday Divorce Workshop in your area.

Comments

  1. I was sick and unable to testify for myself on the day of my divorce , lawyer settled yhen later after I got out OF ICU .I FOUND MYSELF ON DISABILITY SSI GETTING 488 A MONTH LOST HEALTH BENEFITS NO SUPPORT AND CANT WORK HAD MY OWN HOME BUT ALLOWED HIM TO BORROW MONEY ON MY HOME HE EANYED HIS NAME OFF LOAN . I WAS IN COURT YESTERDAY AND GUESS WHAT I WASNT ALLOWED TO SPEAK ON MY OWN BEHALF , they gave me 10 days to list 3 realtors of their choice how about that .HE KEPT HIS HOME COMPLETE WITH POOL, has extra income because of me ., draws at least 7500 a month , gets off 80,000 dollar loan AND I GET 488 A MONTH THETE IS SOMETHING WRONG WITH THIS PICTURE . HOW CAN ANYONE GET AWAY WITH THIS AND A COURT ALLOW A DISABLED WOMAN TO BE THROWN IN THE STREET .CAN ANYONE HELP ME ?

  2. Hi
    I’m in need of advise. My parents are divorcing after 50 years of marriage, my father is canceling insurance policies; health, life, auto, this is freaking me out for my mother. He is closing accounts, he is leaving her with nothing. My mother has been completely submissive and un-involved in their finances, i’m so glad i found this page but i’m stared that she doesn’t have the resources to retain an attorney, he has handicapped her ability to defend herself.Does she have any rights to stop him from cutting her off financially?

  3. I’m currently receiving $700 a month SS age 64 , was married 19 yrs , he has a bigger amount a lot SS due him ,I remarried but same name Smith, can I get his benefits or do I get divorced so I can get 4 times more to live on or can I try to get benefits without getting divorced or annulled , I need the money and plan on filing my own return in 2017. My ex got all the benifits in our marriage,self employed he took all the SS so we didn’t have to pay the IRS extra for mine. That is why mine is so low, I deserve to get it just don’t know how.

    • It sounds as though you are currently married, and so the benefits you are receiving are either reduced benefits based on your own earnings record or spousal benefits equal to 50% of what your spouse is entitled to on his earnings record, reduced because you began collecting early. If you divorced, and your current marriage lasted 10 years or longer, you could collect reduced divorced spouse benefits based on either former spouse’s earnings record. Those benefits are the equivalent of 50% of what your former spouse is entitled to, reduced because you began collecting early. If your current marriage was less than 10 years, you could collect your own benefit or divorced spouse benefits based on Husband #1, whichever is higher.

      If he is entitled to maximum benefits of $2,600 or so, the reduced divorced spouse benefit would be around $975. It is likely that his benefits are not that high, so you wouldn’t get much, if anything, more than you are receiving now.

  4. well in my house things are very bitter ive been called a fool or a stupid hoe all sorts of names he even tells me that if i file for a divorce he is going to kill me because ill have 50% of everything he is owning. i am an unemployed 27 year old trying to complete my studies but due to the fact that he went out and had a child out of the marriage we suffer financially because he is paying for that child R2000.00 per month wich leaves our 4 year old with no money to even pay for school fees and no money to buy food in the house.because he is verbally and psyically abusive i fear for my life.we are married in community of property so that means if i file for a divorce all assets needs to be divided.please help. i am so drained even the intimacy is no more there.wich makes me feel like i am not good enough towards him please help

  5. carol wilber says:

    I was married for 10 yrs, divorced in the 80’s. Husband died in 2011, Am i entitled to any social security benefits from him?

  6. Sharon Goldsmith says:

    My husband and I have been separated but still close. in september of 2017 we will have been married 10 years I am 62 and he is 73. I know I am not entitled to his inheritance but he draws about $5000 a month social security and retirement. do I get any of those funds in a divorce…

    • You can collect reduced social security spousal benefits now, or wait until you are 66 and collect full spousal benefits, if those benefits exceed benefits based on your own earnings record. If you divorce, then the benefits you are eligible for are called divorced spouse benefits, but are equivalent in amount. As for his retirement benefits in divorce, that will depend on the laws of your state.

  7. What happens to stocks that are purchased (not through employer), just a public common stock he had a hunch to follow up on? How are those treated after divorce? Could he sell them and cash that out, and if so, are they then taxable income and fees?

  8. Oh another question. Do you know of low cost financial advisors with regards to advising the best way to move forward after a divorce? Like should I keep the house and forego some retirement, sell the home, etc?

  9. Attend a Second Saturday workshop near you to get the information you need to navigate your divorce. They are low-cost and packed with information. http://www.SecondSaturday.com / find a workshop near you.

  10. BONNIE MILLER says:

    I WAS MARRIED FOR 23 YEARS. NOW DIVORCED. IT WAS A NO FAULT DIVORCE. AM I STILL INTITLED TO PART OF HIS RETIREMENT?

    • Look at your divorce agreement and see what it said about who is awarded the retirement accounts. If it doesn’t address the issue, talk to an attorney about opening up your divorce to divide an omitted asset.

  11. My husband and I separated last March . We didn’t file a divorce yet. I took him off from my health insurance in October of 2017 . He doesn’t have any insurance and he need a surgery right know . I wanted to know if I have legally obliged to provide insurance for him or cover expenses for his surgery . We live in California .
    Thank you very much .

  12. I will be 64 yrs. old in March am I Am wondering am I eligibile for my husband retirement, we been married 26 years

  13. Evita Stevens says:

    My husband divorced me 4 years ago It was a uncontested divorce, didn’t ask for anything out of the divorce he is retired he’s 75 years old and I’m 54 years old am I entitled to anything

  14. I was married for 20 years and through the court was allotted part of my ex-husbands retirement. I have now been divorced for 5 years now and in this time have not received but a couple pennies on the dollar for child support. My ex-husband has screwed my financial situation completely. I’m to the point now to getting ready to lose my house, which my daughter is an adult now but still have our son living with me. I might very well lose my job here soon. I make some money but not enough to cover the path of destruction my ex left me. Also, I have taken him to court several times and he was held in contempt. That was the only time I seen some money. Anyway long story short…I need help to understand how this works. I was awarded part of his retirement which is through a union. I called the union insurance and they said that there is no way to withdraw early even if my son and I are to be living on the streets soon. I was hoping this is not a true statement, I have had several friends that have been able to do this and that gave them a chance to get set up financially to keep going. I need help please I am not sure what I need to do and feel defeated.

    • You will need to have a Qualified Domestic Relations Order prepared and served on the plan administrator (the union), if you have not yet done that. That will pin down your portion as belonging to you. The plan will then make payments to you when your former spouse is eligible for retirement. If the plan provides that payments could be made sooner, then early payments can be made, but it sounds as though that is not part of the plan, based on your discussion with the union insurance.

  15. I been divorce for 32 yrs and my ex-husband wants to retire but as long as he knows I want what’s for me he keep on working and forgets the retirement. He wants to go buy a house secretly but I found out so how can he pay my retirement early cuz at the moment he don’t want to give me anything. Cause his girlfriend says so

    • If you were awarded a portion of his retirement in the divorce, be sure you file the Qualified Domestic Relations Order that puts the plan on notice that you own a portion of it. Generally, you should be able to collect once that is in place and he has reached the earliest age of retirement, even if he doesn’t retire and continues working.

  16. I have a question .. I was married for 29 years .. I been recently divorce .. He had a lot of affairs so i file .. I gave him the house , new suv , truck , cabin in e mountain, 2 boats , i gave him everything .. I walked with the equity of the house which was 30 thousand an 1,200.00 a month in alimony for yrs.. I wasnt thinking at the time but am i eligible for part of his retirement .. Divorce was in the state of Pa.. Thank you

    • If you gave him everything including the retirement, then you wouldn’t receive part of the retirement. If your divorce agreement says that you were to get part of the retirement, and you filed the Qualified Domestic Relations Order (QDRO) and served it on the plan administrator, then you should receive payments. If your divorce agreement didn’t mention the retirement, then see an attorney about opening up your case again to divide that omitted asset.

  17. I worked for a shipping co. for 50 years and retiring . Married now 9 yrs. but getting divorced. We live in fla. wife is expecting 50% of my pension. Is there a 10 yr. benchmark where she gets half or a percentage of contribution put into fund those 9 yrs. of marriage?

  18. My husband and I are getting a divorce, we have been married for 10 yrs. He just retired from the military. I filed and requested the house and part of his retirement money because I was the homemaker and put a lot of work into everything and he did nothing but pay some bills. He sent a letter back that he is denying giving me any of his retirement money. Can he do that? Or will we have to go to court. I told him we need mediation because we have a child together he said he can get a lawyer and we don’t need mediation.

  19. I am filing for divorce my husband received an inheritance, and he dumped it in our house hold account then transferred it out two weeks later to another account that doesn’t have my name on it. Am I entitled to these funds now since he co mingled the funds? Also what percentage am I entitled to his retirement? We have been married 15 years?

    • It doesn’t sound like he commingled the funds. He deposited them into an existing account, and then shortly thereafter transferred them out of that account into a separate account. As to what portion of his retirement you are entitled to, consult an attorney familiar with the laws of your state. Each state is different.

  20. Cynthia Garcia says:

    I have a question…I was married for 20 years and I divorced him for being unfaithful. We both remarried but he annulled our marriage. I have been married for 15 years. He works for the school. Am I eligible for part of his TRS? (Teacher Retirement System)

    • If your marriage was annulled in a court of law, then you were never married and likely you wouldn’t be eligible for part of his TRS. If you were divorced in a court of law, then you’ll need to look at your divorce agreement to see what it says.

  21. Question..I been divorced now for 12 yrs. And it’s in the divorce about a Quadro for his pension. Which he’s been collecting since 2008.I never received a penny. Now I got my lawyer in this and the Union lawyer as well. But I don’t understand they are asking me if I want to take a early retirement.His pension I think is combined but he gets a separate check. How does this work?and am I entitled to back pension from all those years

    • You will have to ask the attorneys about whether you are entitled to back pension. If you had not filed the QDRO, then the plan didn’t know you had an interest in the plan and made payments to your former spouse. You’ll probably have to go after him legally to get the payments that were awarded to you in the divorce but he ended up receiving. As for early retirement, I don’t know what the implications of that are, so you’ll need to ask the plan administrator to give you an explanation.

  22. nancy mullen says:

    married 30 years, no debt, except the house (PITI $980), no kids, lots of stuff, ex-husband is staying in the house, I’m moving to be near my parents.
    Husband files for separation Apr 24 2012 (very important date in Indiana), pleads destitute and insolvent, (net income/month $5600), wants support form me.
    Verbally, emotionally gets me to leave the house before I could moving anything….I’ve abandoned the house and it’s ALL his.
    Divorced Jun 2018…words you don’t want to see in your decree….ATTEMPT to refinance the house and remove my name…he attempted, denied, he lied on the applications….my name is still on the house and deed..and he got the house in the divorce. EQUAL earning potential…not even close. QDRO, make sure they list the DATE TO BE SEGREGATED and address GAINS AND LOSES…mine didn’t, I’m now paying for my 5th lawyer, and the 6th lawyer is starting to collect on the judgment during the appeal to the supreme court! list every thing you want, get appraisals…I didn’t do this, because my income was $1100/month..so he kept much my stuff, and made out good with the dishonest appraiser. During the final hearing, have current values on the assets, not face value,(life insurance, 401K, etc) and values of all at separation, so the judge can use the correct numbers in his calculations.
    when your name stays on a mortgage and your monthly income just covers the payment, even with the best FICO score, you can’t get credit!
    I think I covered the high points..and ones that cost me dearly.

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