Protecting What Matters Most

Can you claim a part of your ex’s pension in your divorce?

Figuring out how to split up your property is one of the most difficult parts of getting a divorce. The chances are good that you and your ex don’t agree about what is fair and appropriate. You may hope to secure a portion of certain assets for yourself, while your ex may resent your claim to that property.

Pensions are often among the most hotly-contested assets in a divorce. If your spouse has a well-established pension, they might presume that they should get to keep the value of that pension because it is a benefit of their employment.

However, New York treats pensions, or at least the portion earned during a marriage, like community property under its equitable distribution standard. That means you have a right to make a claim against the pension even if you never contributed to it. What happens if the courts agree with you and award you part of it?

The courts might order the division of the account

It is possible for the courts to order your ex to split off a portion of their pension benefits for you. Depending on how their employer manages pensions, a Qualified Domestic Relations Order (QDRO) may be necessary. This document will help by ordering the person who manages the pension account to withdraw a specific percentage of the balance and place it into a new account in your name.

The courts might order spousal support when your spouse gets the pension

 Some pension programs don’t have actual accounts but simply potential value for when someone retires. In cases where there isn’t an actual account to split, the courts may order spousal support that starts as soon as your ex begins receiving the pension.

Depending on your relationship with your ex, the nature of the pension and how close you are to retirement, you may have specific preferences regarding the division of the account. Talking about your hopes with the lawyer can give you a better idea about what will happen with the pension in your New York divorce.

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