Do I really have to give half my retirement to my soon-to-be-ex?
March 8, 2022 at 9:30 PM
by Amanda
Do I <em>really</em> have to give half my retirement to my soon-to-be-ex?

Your retirement is part of the things that can be divided when you get divorced. The entire time you are married, your retirement actually belongs to something called the marital estate - meaning that both of you have a right to it. Think about it: if you remain married at the time you retire, then you would both share in it to support yourselves. However, if you divorce before then, the retirement can be split between the two of you. This is one thing that courts take into account when they are dividing property.

This doesn't mean that you have to divide everything 50/50 - it just means that the retirement account is considered an asset just like your house, car, clothes, and well, really pretty much anything else you have.

If you go to trial, the judge will likely award your soon-to-be-ex a share of your retirement, no matter who worked and who earned it. A judge may give one spouse more of the retirement savings if that spouse has been taking care of the household and managing the money while the other spouse was working. If one spouse has not been contributing to their retirement fund or has been putting all their money towards supporting the family, then the judge may award that spouse a lesser share.This is because retirement is seen as an earned asset and part of the marital estate, no matter who put the money into the account.

If you and your spouse are able to negotiate a fair retirement division yourselves, it can save you both money and heartache. If, however, the negotiation process becomes contentious, it is likely that the court will have to intervene to make a decision. This can be expensive and may not result in a resolution that is satisfactory to either party.

In order to avoid this outcome, try to remain civil and open to each other's suggestions during the negotiation process. I would be happy to draft documents reflecting what you have agreed upon. Contact my office to see how I can help.