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Is a Divorced Wife Entitled to Husband's Pension?

Is a Divorced Wife Entitled to Husband’s Pension?

Property division during divorce can be complex and spousal pension plan rights in a divorce proceeding are often misunderstood. While rules may vary from state to state, Indiana is an “equitable distribution” law state, meaning that trial court judges have some latitude in how to fairly divide marital assets in a divorce settlement – including retirement and pension assets. In other words, Indiana judges can deviate from a presumptive 50/50 split baseline.

With that in mind, here are some crucial factors and considerations to help you understand pension and retirement plan benefit distribution after divorce:


Pension Plan Rights After Divorce

Generally, the standard for property division of marital assets is that eligible property assets include those accrued before and during the marriage while financial assets, including pension and retirement benefit income, include only those assets accrued during the marriage – typically from the date of the marriage until the day of separation. Pension assets earned before the marriage or after the official separation date are not considered “marital property” and are not normally included as eligible property division assets.

Once relevant retirement assets have been determined, proper division of these benefits is done via a court order known as a Domestic Relations Order or Qualified Domestic Relations Order.

Domestic Relations Orders (DRO) and Qualified Domestic Relations Orders (QDRO)

DROs and QDROs are essentially the same thing except that a QDRO is “qualified” by the retirement plan’s administrator. These court orders effectively authorize the division of marital property after divorce. Specifically, they dictate to the retirement or pension system how much the pension holder and ex-spouse should receive in asset distributions, as well as how and when the distributions should be made. DROs and QDROs enable a spouse to obtain the decreed retirement benefits without tax implications or early withdrawal fees.

Social Security and Railroad Retirement Benefits in a Divorce

Divorced wives may also be eligible for a portion of their ex-husband’s Social Security benefits. The same is true for Railroad Retirement Benefits accrued by the husband. However, the amounts of eligible funds from each of these retirement benefit platforms might be reduced if the spouse is eligible for benefits from both. Retirement benefit eligibility and qualifying amounts can also be impacted by type of benefit, work tenure, remarriage, subsequent or current employment status, and current earnings. Because asset division rules can be complex, consult with Ciyou & Dixon or a similarly experienced domestic relations law firm in your area.


How Much of Your Husband's Pension are you Entitled to?

Generally, pension assets, which can be quite complex in plan form, are split equally during a divorce. As noted, however, in Indiana divorce cases, a trial court judge has discretion to deviate from the presumptive standard 50/50 division. For example, a deviation might be made for a spouse, often a stay-at-home mom, who has not worked in order to care for the children.

In any event, equitably dividing and distributing pension and retirement benefits as liquid assets can be complicated. For example, it might be cumbersome or unduly costly to disentangle and divide complex financial assets from the husband’s retirement plan or plans. In such cases, the wife might receive other property or liquid assets that fairly offset pension benefits that will remain with the husband.

Obviously, specific marital asset distribution dollars depend on the value of those assets and the structure of the plans. In many cases, periodic payments to a wife from the husband’s retirement plan can be made for the life of the husband or even after his death. Of course, prenuptial agreements can affect the nature and scope of the division of assets in a divorce.


Key Takeaways:

Is a divorced wife entitled to a portion of her husband's pension? Rules and fair standards for property division during divorce may vary from state to state and case to case. But in most Indiana cases, the answer is yes. Here are some important points to remember:

  • Retirement and pension benefits are considered marital assets, provided they were accrued during the marriage
  • A 50/50 split of marital assets is the presumptive standard in Indiana divorce settlements
  • Because Indiana is an “equitable distribution” law state, trial court judges can deviate from the 50/50 standard
  • Asset valuations, timing and methods of distributions, and tax rules and consequences tend to complicate divorce settlements
  • Property division is made via a Domestic Relations Order or Qualified Domestic Relations Order signed by a Judge
  • Divorced wives may also be eligible for a portion of their ex-husband’s Social Security and Railroad Retirement Benefits
  • If your spouse has a pension, IRA, 401(k), annuity, or any other type of retirement plan benefit, it pays to understand your pension plan rights in a divorce as well as the legal means to obtain an equitable distribution of these marital assets

At Ciyou & Dixon, P.C., we have 25+ years of experience successfully advocating and resolving complex cases for our clients. To learn more about your rights to a portion of your husband’s pension or retirement assets after divorce, contact us today at (317) 951-9373. We look forward to answering your questions.

Ciyou & Dixon, P.C. advocates handle divorce and property division cases throughout Indiana. Perhaps we would be a good fit to be your domestic counsel. This blog is written for general educational purposes only. This is not a solicitation for services or legal advice. This is an advertisement.


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Dixon & Moseley, P.C., is a law firm located in Indianapolis, Indiana. We serve clients in six core practice areas: family lawappellate practicefirearms lawgeneral practicepersonal injury and criminal law.

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Based in Indianapolis and founded in 1995, Dixon & Moseley, P.C. is a niche law firm focused on successfully dealing with the complexities of divorce, high-conflict child custody and family law. Known for their ability to solve extremely complex situations with high quality work and responsiveness, Dixon & Moseley, P.C. will guide you every step of the way. The family law attorneys at Dixon & Moseley, P.C. will help you precisely identify your objectives and the means to reach your desired result. Life is uncertain. Be certain of your counsel. Indianapolis Divorce Attorneys, Dixon & Moseley, P.C.

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