Am I Entitled to My Ex's Retirement Benefits?

Posted on September 16, 2016 12:19pm
Am I Entitled to My Ex's Retirement Benefits?

Contemplating a divorce in Oregon? There are a number of factors that will have to be considered, including division of assets and debts. While many people think of the house, car, and personal items when they think of assets, there are other types of assets that are subject to division as well, such as retirement benefits.

Do I Have Rights to My Retirement Benefits in a Divorce?

Much like other marital property, retirement benefits will also be divided equitably during a divorce, which means you are entitled to assets from retirement accounts such as 401k investments, IRAs, stock options, and pensions.

You may be entitled to a share of:

  • Pension benefits earned during a marriage
  • Retirement savings accounts that were funded during a marriage
  • Earnings on these accounts that accumulated during the marriage

Retirement plans are usually the largest asset in a marriage, but are often overlooked. If a retirement plan is not addressed during a divorce, a spouse can end up losing out on a significant portion of the marital assets to which they are entitled.

Dividing Retirement Savings Accounts in Divorce

Retirement funds in accounts like 401(k)s and IRAs that have been acquired during the marriage are subject to property division just like any other marital asset. The division of retirement plans that qualify under IRS and ERISA regulations is determined with a Qualified Domestic Relations Order (QDRO), which must be entered with the family court. Retirement funds provided by other organizations (such as the military) are transferred using special court orders.

What Happens to Each Spouse's Pension Plans?

The pensions of both spouses earned during a marriage are considered marital property and are subject to division at divorce. If a spouse began working for their employer before the marriage and earned benefits, those benefits earned as a single person would be considered separate property, while any benefits earned after their marriage are subject to division. Vesting is an important consideration, as the contributions of an employer only belong to the employee if they have been employed for the length of time defined in the company’s vesting schedule.

Are Social Security Benefits Subject to Division?

If you have been married to your spouse for 10 years or more, you may be entitled to Social Security benefits based on your ex-spouse’s work record if you meet the following criteria:

  • You are 62 or older
  • You are unmarried
  • Your ex-spouse is entitled to Social Security benefits
  • The benefits you are entitled to, based on your own work record, are less than what you would receive based on your ex-spouse’s record

If you start taking out benefits at full retirement age and are eligible to collect benefits based on your ex-spouse’s work record, you will be entitled to one-half of your ex’s benefits. Note that if you remarry, you generally cannot collect an ex-spouse’s benefits unless your later marriage ends.

Questions? We’re Here to Help

Property division matters are best addressed with the guidance of an experienced divorce attorney. If you have filed for divorce in Oregon and there is a retirement plan involved, contact McKinley Irvin to set up a consultation with a Portland divorce lawyer. We can thoroughly assess your case and ensure that you receive all of the benefits to which you are entitled. With decades of combined experience and a reputation of excellence in the Pacific Northwest, we have successfully handled hundreds of divorce cases utilizing our meticulous and strategic approach.

We invite you to contact us to get started discussing your case.

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