Though divorce often ends in an equal 50-50 split of a couple's assets, the pension of one spouse is not always available to the other. A pension poses unique difficulties because it is not always yet the vested property of either spouse, and the claim of one spouse on another person's work related pension might be questionable. Even if there is the possibility to get a part of the pension, a court order must issue directing how the retirement system paying the pension should disburse the funds. Negotiation is an important part of any divorce proceeding, but particularly regarding pensions, and can only be done effectively if a party knows his rights under the law.
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Know the law. Most states explicitly state in their statutes if one spouse is eligible to receive a portion of another spouse's pension at divorce. Some flatly deny it, but assuming there is the possibility of a claim, the statutes might also explain the conditions which can give rise to a claim of pension rights. When examining the law, look for explanations of how the state court will calculate a former spouse's pension share, and how and when a pension share should be paid.
Understand the retirement system rules. In addition to the laws of the state, the rules of the pension itself must be understood to effectively negotiate your rights. Some retirement systems are very specific about divorce, and might preclude a former spouse from making any claim. Others might be more flexible. Generally, if the retirement system disallows a former spouse from receiving a share, the state courts will not force it to do so, but can order funds received by the pensioner to be divided.
Negotiate disbursement. Assuming you have a right to a share of your spouse's pension, the bulk of the negotiations might revolve around how it is paid out. In some cases, each pension payment might be divided and paid to the spouses in separate checks. More likely, the courts will tend to order the pensioner to buy out the former spouse's share, to avoid overly complicating the situation with the retirement system and necessitating further court intervention. Even if the spouse's share is bought out, this can sometimes be done through instalments rather than a lump sum.
Tips and warnings
- The divorce laws of your state are usually available online. First search for the state's website containing the statutes, then use an internal search function to find divorce.
- An experienced divorce lawyer will be very familiar with the pension situation in the state, and might even have dealt with the specific retirement system before. This kind of knowledge can give the upper hand in a negotiation.
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