Can I claim my husband’s pension benefits after divorce?

Yes, it is possible for a spouse to claim a portion of their husband’s pension benefits after divorce, as long as the pension is considered marital property. In many jurisdictions, pensions and other retirement benefits acquired during the marriage are subject to division as part of the divorce settlement. However, there are specific legal processes and considerations involved in claiming these benefits.

1. Pension as Marital Property

• Marital Property: In most divorce cases, pension benefits accumulated during the marriage are considered marital property and are subject to division. This includes any contributions made to the pension plan during the time the spouses were married, even if one spouse was not directly involved in the pension plan itself.
• Separate Property: Pensions that were earned before the marriage or after separation are generally considered separate property and may not be subject to division. However, only the portion of the pension that was earned during the marriage is typically divided.

2. Types of Pensions and Retirement Benefits

• Defined Benefit Plans (Pensions): Traditional pension plans that pay out a specific monthly benefit based on salary and years of service. These are typically divided based on the amount accrued during the marriage.
• Defined Contribution Plans: These include 401(k)s, IRAs, and similar retirement accounts. These plans can be divided more easily since they have a set account balance, but the division must still follow legal procedures.

3. The Role of a Qualified Domestic Relations Order (QDRO)

• QDRO Requirement: To divide pension benefits, particularly in a defined benefit plan, a Qualified Domestic Relations Order (QDRO) is typically required. A QDRO is a legal order that instructs the pension plan administrator on how to divide the pension benefits between spouses.
• QDRO Process: The QDRO outlines how the pension benefits should be split. It can specify that a portion of the benefits will go directly to the non-employee spouse (you) either as a lump sum or as part of the monthly pension payouts once the pension starts being disbursed.
• Important Details: The QDRO must be approved by both the court and the pension plan administrator. It’s essential to work with an attorney who can draft and file the QDRO properly to ensure the correct division of the pension.

4. Factors Affecting the Division

• Length of the Marriage: The longer the marriage, the more likely the pension benefits are to be divided. Generally, only the portion of the pension earned during the marriage is subject to division.
• Timing of Divorce and Retirement: If your husband has already begun receiving pension benefits, you may still be entitled to a portion of those benefits, but the division may be based on the value of the pension at the time of the divorce or when the pension begins paying out.
• Retirement Plans in Place: Different pension plans may have different rules for how and when they can be divided. Some pensions may allow you to begin receiving a portion of the benefits once your ex-spouse begins receiving payments, while others may delay or modify the payout.

5. Claiming a Portion of the Pension

• Consult a Divorce Lawyer: It’s crucial to work with a lawyer who is experienced in family law and familiar with pension division. They can help ensure that the pension is correctly valued, a QDRO is properly filed, and your share is protected.
• Pension Valuation: The value of the pension is often determined by an expert, and the division may depend on factors like the pension’s value at the time of divorce and any future increases in pension payments.
• Receiving Payments: Once the pension is divided, you may receive your portion directly from the pension plan once your ex-husband begins receiving his benefits. Alternatively, the pension may be cashed out or transferred to another retirement account like an IRA, depending on the type of pension and the terms of the QDRO.

6. Example

Suppose you were married for 15 years, and your husband has been contributing to a pension plan through his employer during the entire marriage. If you divorce, the pension benefits accumulated during the 15 years would typically be divided as part of the marital property. With a QDRO, you could be entitled to a percentage of those pension benefits once your husband begins to receive them, either as a direct monthly payment or as a lump sum if the pension allows for such an option.

Conclusion

In a divorce, you can claim a portion of your husband’s pension benefits if the pension was accrued during the marriage and is considered marital property. This typically requires a Qualified Domestic Relations Order (QDRO), which legally divides the pension benefits between you and your husband. The process can be complex, so it's important to consult a divorce lawyer who can guide you through the proper steps, including obtaining a QDRO, ensuring fair valuation, and protecting your financial rights related to pension benefits.