Virginia Info

Virginia Divorce Start Your Divorce Find Professionals Virginia Articles Divorce Facts Divorce Grounds Residency Divorce Laws Mediation/Counseling Divorce Process Legal Separation Annulments Property Division Alimony Child Custody Child Support Divorce Forms Process Service Grandparent Rights Forum Virginia Products Divorce by County

Virginia Articles

Agreements Attorney Relationship Custody & Visitation Child Support Divorce/General Financial Planning Mediation Parenting Property Division Spousal Support SEE ALL

Info Categories

Contemplating Divorce Children & Divorce Divorce, Dollars & Debt Divorce Laws Divorce Process Divorce Negotiation SEE ALL

More Information

Articles Checklists Research Center Cases of Interest Dictionary Encyclopedia Encyclopedia (pop-up) Blogs

For Professionals

Advertise With Us Free Network Page Join Our Network Submit Articles Sign In

Network Sites

Virginia Divorce Support Virginia Divorce Online

Property Division: Pensions

The portions of pensions "earned" during the marriage (prior to the final physical separation) are marital property. In Virginia, there does not have to be a "buy-out" by the spouse possessed of the pension; if a Court settles the matter, the other spouse can receive his or her "share" only "if, as and when" the other spouse receives the pension benefits; and fifty percent of the amount received at any one time is the statutory maximum which can be awarded (this is also the approach of the military "Former Spouses Protection Act" and of Acts applicable to Federal agencies, in terms of the maximum which the Secretary of the Service or Agency is authorized to pay directly to the other spouse). In addition, the problematic issue of "capping" the amount received by the other spouse, by means of "present value" determinations of the portion of the pension earned during the marriage, has largely been solved by addition, a couple of years ago, of a provision which permits "if, as and when" awards based on the "marital portion" formula; i.e.:

Number of years of employment during marriage
(prior to final physical separation)
Number of total years of employment prior to retirement

The actuaries have not been fully divested of their livelihood in this area, however. "Present value" determinations may be necessary if both spouses have pensions earned during the marriage (in order to prevent the unwieldy result of each paying a portion of his or her share to the other); or where one spouse nevertheless desires, at least in effect in the property division process, to "buy out" the interests of the other.

Because fifty percent of the amount ("if, as and when") received is the statutory maximum, at least with respect to annuity-type retirement benefits (i.e., those which entail monthly installment payments after retirement/after a certain age, etc.) -- initially, the thinking and approach of some practitioners was that something less than fifty percent must be "the norm" here (even to the extent that annuities constitute "marital property"; i.e., even regarding the "marital portion"). Often, perhaps by analogy to "dower" interests, they viewed one-third as the "usual" spousal share in an annuity; with a fifty percent share being reserved for application against the spouse clearly "guilty" of dissolution of the marriage. Even in the case described above, however, where the Court of Appeals indicated that mere "personal fault" was essentially irrelevant (and the ex-wife was denied permission to prove that her ex-husband had dissolved the marriage by means of engaging in adulterous relationships with seven different women!) -- an orthopedic surgeon was allowed to retain all but 20-30 percent of certain types of his (marital property) business assets. And, although the Virginia Court of Appeals has never directly decided this issue, several early "reported" decisions have involved cases where that seems to have been the approach taken ( i.e., precisely or about one-third viewed as the "norm").

On the other hand, a substantial percentage of practitioners seem not to distinguish retirement (as opposed to) business assets in this fashion; at least in the Northern Virginia area, increasingly, our Judges are ordering the "marital portions" of these assets, also, simply divided equally.

Another possibly important caveat regarding retirement benefits results from the tax effects of cashing in" IRA's and "401K"-type Plan amounts. That is, "early distribution" of these assets will result in a ten percent income tax "penalty" bite; and the amounts received must, also, then be included as income on your tax return. At the higher brackets, therefore, with Virginia State tax effects also considered, this means that the effective "present value" of what might otherwise seem to be $1,000.00 in an IRA or 401K account is really only a little more than one-half of that amount. And, although it is true that, with respect to Plans, such tax effects can be negated by means of use of the cumbersome procedure of a "Qualified Domestic Relations Order" ('QDRO') -- where the amount in the Plan is not to be divided that way now or in the future -- $1,000.00 in a 401K Plan may not be of equal value to $1,000.00 in, for example, an ordinary savings account.

Was this helpful? Like our site & let us know.

Related Articles

Start Virginia Divorce Start Your Virginia Online Divorce Today
Easy, Fast and Affordable with a 100% Guarantee.
Virginia Divorce Find Virginia Divorce Professionals in Your Area:
Join the Network
Virginia Divorce Products, Services and Solutions Virginia Divorce Products, Services and Solutions
Virginia Divorce Resources to Help You Through the Process.
Online Parenting Class Virginia Mandatory Online Parenting Class
Easy and convenient - complete at your own pace online.
Divorce and Custody Books Discount Divorce Bookstore
Over 100 Titles of the Best Books on Divorce & Custody.
Divorce Downloads Divorce Download Center
Instantly Download, Books, Manuals, & Forms.
Divorce Worksheet Free Virginia Divorce Worksheet & Separation Agreement
Your Guide to Get Organized and Put Everything in Writing.
In Virginia, a premarital agreement shall be in writing and signed by both parties. Such an agreement shall be enforceable without consideration and shall become effective upon marriage.
Divorce Lawyers & Mediators

Find Professionals

Easily Connect With a Lawyer or Mediator
Have Divorce Professionals from Your Area Contact You!
Enter Your Zip Code:


Start Your Divorce File for a Virginia Divorce


Settle Your Divorce Negotiate Your Virginia Divorce


Support Forum Virginia Support Forum

Guarantee Official PayPal Seal Facebook Twitter Versign Secure Site