Retirement Division in Divorce

March 8, 2022

Retirement Division in Divorce: What You Need to Know

When a marriage ends, couples must confront the difficult task of dividing their shared assets. One major consideration is often retirement savings. In many states, including Illinois, retirement accounts accumulated during the marriage are part of the “marital estate.” This means both spouses have a claim on these assets, regardless of who directly contributed to the accounts. This means that retirement division in divorce matters to your divorce.

Why Retirement Savings Matter in Divorce

Imagine staying married until retirement. You and your spouse would share those accumulated retirement funds to support your lifestyle. But if you divorce, the court must determine how to fairly divide those funds. It’s not always a simple 50/50 split – retirement accounts are considered property alongside your house, car, and other belongings.

How Courts Decide on Retirement Division in Divorce

Should your case go to trial, the judge will likely award your ex-spouse a portion of your retirement savings, even if you were the sole income earner. However, the judge has some flexibility. For example, they might award one spouse a larger share if that spouse primarily managed finances and household responsibilities while the other spouse focused on building their career. Conversely, if one spouse neglected retirement contributions and focused on other spending, their share might be reduced. Courts view retirement savings as a jointly earned asset of the marriage.

The Benefits of Negotiating Your Own Agreement

Reaching an agreement with your spouse about retirement division can save you significant stress, time, and money. If negotiations turn contentious, the court may intervene. This process is often expensive and the outcome might not please either of you. To avoid this, try to approach negotiations with civility and openness.

Factors to Consider When Negotiating Your Retirement Division


  • Contributions: Who made direct contributions to retirement accounts?
  • Earning Power: Is there a significant difference in your incomes and future earning potential?
  • Lifestyle Sacrifices: Did one spouse sacrifice career advancement to support the other’s career or handle household duties?
  • Length of Marriage: Longer marriages usually mean retirement funds are closer to being a jointly-owned asset.
  • Other Assets: How will other marital property be divided? This can impact the retirement negotiation.

How an Attorney Can Help

An experienced family law attorney can offer invaluable guidance during these complex negotiations. They can help you understand your rights, assess the fairness of a proposed division, and draft the necessary legal documents to formalize any agreement you and your spouse reach. If you’re facing divorce and need assistance navigating how retirement division in divorce impacts you, don’t hesitate to contact my office for support. I would be happy to draft documents reflecting what you have agreed upon. Contact my office to see how I can help.

Disclaimer: The content within this blog post is provided for informational purposes only and should not be construed as legal advice. Readers are strongly encouraged to consult with a qualified attorney regarding their individual circumstances and legal rights.