An Introduction to Pensions, Retirement Accounts and Divorce
Key Points
  • Spouses often must look at the long-term financial consequences when a marital settlement is agreed to in a divorce.
  • During divorce one of the most valuable assets is the pension or retirement account which should be valued for equitable division.
  • Parents, mothers in particular, may opt to off-set the husband’s pension for the marital home, this however may not be the most financially sound decision since the marital home is a barren asset and the pension or retirement will continue to grow in value.
  • Those negotiating a settlement in divorce must take into consideration that the Marital Settlement Agreement must set out all aspects of property division including issues with the pension or retirement accounts.

For many divorced women, the so-called golden years of retirement can become a long journey across the rocky terrain of financial hardship, if not poverty. A career homemaker who divorces in midlife often finds herself facing vastly reduced circumstances in the wake of a marital breakup. Indeed, anecdotal evidence suggests that some middle-aged women fear that divorce may financially strain them for the rest of their lives.

Women of all ages often go into divorces on a less equal footing than their husbands and, therefore, must pay particular attention to the long-term consequences of the division of the marital estate. Women, for example, enter and leave the work force to the demands of child rearing, which lowers their contribution to their own pension plans (if they have them), and they may, for the same reason, juggle low-paying, part-time jobs that together yield a living wage but one without benefits and certainly no pension. Spouses, even professional couples, tend to defer to the husband's career, in part because men still earn more than women.

A woman whose contributions of the marriage have been homemaking and child rearing - the stay-at-home mother who have led "the most exemplary middle-class lives" - often faces a midlife divorce with only a sketchy understanding that her husband's pension may be their most valuable asset.

That's right. The two largest assets that a middle-class couple divides in a divorce are the marital home and the husband's pension. Many divorcing couples do not realize that the pension benefits of a couple ending a long marriage may be worth more than the house they live in. A thrifty couple that lives in one house during their long marriage may have accumulated pension benefits greater than the value of their house. Moreover, the continuing decline of the housing market makes the value of the family home more problematic than at any time in recent memory.

And while many women quickly grasp the idea of dividing the house, the importance in the division of the pension eludes many women, particularly since its distribution may be several years away. The custodial mother of teenagers may grab at the marital home as a solution to a near-term problem but forget that down the road her share of her former husband's pension will be more important than owning a house.

The division and distribution of pensions often become very complicated, and these issues probably generate more appeals and reversals on appeal than any other issue in equitable distribution. Even some general practitioner lawyers may stumble facing the subtleties of pension law.

Divorcing spouses, particularly stay-at-home wives, do not become experts in pension law during a divorce, nor can they expect to learn evaluation of them. However, women must learn how to ask the right questions when facing the distribution of them.

Pensions become problematic because, unlike cash in the bank or stocks and bonds, the rights to them involve 1) classification, 2) valuation, distribution, 3) qualified domestic relations orders (QDROs), and 5) miscellaneous areas of contention, including, for example, post-decree increases.

Suggested Reading
Pension Issues in Divorce Pension Issues in Divorce
When couples get divorced they must decide how to divide their property. Retirement benefits (pensions) often form a substantial part of the parties' total marital estate and many times are the largest single marital asset afforded the couple. Similar to other assets, pensions are typically divisible in cases of divorce to the extent that they are acquired during the period of marriage.

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LARGEST ASSETS -- The two largest assets that a middle-class couple divides in a divorce are the marital home and their pensions.

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