Articles of interest

FACT SHEET

PENSIONS & DIVORCE

Under the divorce laws of every state, a pension earned during a marriage is considered to be a joint asset or the marital property of both husband and wife. However, it is not automatic - you must specifically ask for a share of the pension at the time of your divorce.

WHAT SHOULD I DO TO PROTECT MYSELF DURING THE DIVORCE?

• In order to receive a portion of your husband's pension(s), you must ask for your share at the time of divorce - not later when your husband retires. The court should then award you a share as part of the divorce or legal separation proceeding.
• If your husband has more than one pension - for instance a 401(k) plan and a traditional pension - your settlement must refer to each plan in order to get benefits from both.

• Obtain as much information as possible from your husband's company benefits office. Usually your lawyer will have to write them a letter to obtain this information, but the law does consider you a beneficiary with the right to receive information.
• Notifying the pension plan administrator in writing that you are in the process of a divorce may prevent the plan from paying out your share of the pension to your husband.

SURVIVORS OR WIDOW'S BENEFIT

• A pension may be divided in many ways. However, if you want to receive a survivor's pension, you will need to ask for that specifically, since it must be separately mentioned in the same divorce decree or property settlement.
• If your husband previously chose a survivor's benefit for you, you are entitled to receive it regardless of the divorce (unless it's a government pension).

QDRO - THE TICKET YOU NEED TO GET PART OF YOUR EX'S BENEFITS

• To make sure the pension plan recognizes your right to a portion of your husband's pension after the divorce, you need to obtain a separate court order to present to the pension plan. This special order is called a "qualified domestic relations order" or QDRO (pronounced quadrow).
• When the court issues a domestic relations order awarding you a share of your husband's pension, a copy must be sent to the pension plan immediately.

Generally, the plan will want to make sure of two things:

1. That the court order contains all the necessary information so the plan can determine who, what, and when to pay, and
2. That the court order does not require the plan to pay you in a form or at a time that would not otherwise be permitted under the plan, for example, a lump-sum or single payment if the plan does not allow employees to draw their pensions this way.

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