How to Protect Your Pension in Divorce: 4 Ways

Understanding your options can help ensure your retirement isn't compromised

Divorce can not only take a substantial emotional toll, but it can also have a lasting impact on your financial status. Separating your assets from those of your spouse can be particularly tricky if your pension plan is at stake.

A pension earned by one spouse is generally considered a joint asset, which means it's subject to division in divorce. If a marital split is in the works, the following are four ways to protect your pension benefits as much as possible.

Key Takeaways

  • Review your state's laws to determine the best way to protect your pension in a divorce.
  • A qualified domestic relations order may be necessary to grant your ex-spouse pension benefits.
  • The pension plan may specify the terms governing how the pension is divided.
  • You may be able to propose alternatives rather than dividing your pension.
  • Consider consulting a professional, such as a Certified Divorce Financial Analyst, to help with the division of assets.

1. Review the Laws of Your State

The first step of managing your pension while going through a divorce is knowing what the rules are in your state. Though a pension can be divvied up between spouses during divorce, that division isn't automatic. Your soon-to-be ex would have to make a specific request for a share of whatever you've accumulated before the divorce is finalized.

The spouse needs to file a document known as a qualified domestic relations order (QDRO) before any financial benefit from a pension or other retirement accounts, such as a 401(k), can be granted. 

In terms of how much either spouse is entitled to, the general rule is to divide pension benefits earned during the course of the marriage right down the middle. Though that means your spouse would be able to claim half your pension, they are limited to what was earned during the course of the marriage.

If you were enrolled in a defined-benefit plan for 10 years prior to tying the knot, for example, any contributions you or your employer made on your behalf during that time wouldn't count toward the amount a spouse could seek in a divorce.

2. Check the Details of Your Pension Plan

When you're familiar with the rules governing the division of pensions in your state, the next step is to take a closer look at how the plan works. There are two key elements to focus on here. The first is to verify the method by which payments are distributed, and the second is whether the plan offers a survivor's benefit.

With a defined benefit pension plan, for example, you normally have a choice between receiving a lump-sum payment or a monthly annuity. If your plan features a single-life payout and you choose the annuity option, the payments stop at your death. If the plan has a joint-life payout, the payments continue for the life of the surviving spouse. 

A QDRO must comply with the Employee Retirement Income Security Act (ERISA) in addition to the domestic relations laws within the state that has jurisdiction. ERISA provides a regulatory framework for employer-sponsored retirement plans to provide protections for beneficiaries and participants.

It's important to understand how the plan works because it affects how you'll divide up the assets as part of the divorce. For example, if you have a single-life payout, your spouse is subject to whatever payment option you chose when you signed up.

If your plan offers survivor benefits, the easiest course may be to persuade your spouse to maintain that benefit, rather than seeking a lump-sum distribution. Your ex would have to include those benefits in their gross income but may be able to claim a deduction for estate tax.

3. Propose an Alternative

Consider offering your spouse other assets if you don't want to hand over half of your pension. You may allow your ex to retain ownership of a mortgage-free home that you own together. Or consider buying a life insurance policy equal to your pension benefits naming your ex as the beneficiary. In either case, you offset what your ex would get from the pension with something else of equal value.

You may have an out if your spouse also has a pension or other retirement assets to protect. If both of you have retirement accounts that are relatively similar in size, agreeing to walk away with what you already have can be a less time-consuming way to resolve the issue.

4. Consult a Professional

It's always a good idea to consult a professional about your options regardless of your situation—whether you're about to separate or are in the middle of divorce proceedings. There are individuals in the industry who specialize in the division of assets when spouses split up. These people are called certified divorce financial analysts (CDFAs).

CDFAs are trained mediators who provide divorcing spouses with the expertise they need to manage their assets. They work in conjunction with lawyers to make important decisions about the division of assets.

Certified Divorce Financial Analysts do not provide legal advice or assistance and should never be hired in place of an attorney or mediator.

When you consult a CDFA, they will gather all your financial information, help you set a budget and key objectives, and determine any investment risk you may sustain. They will then review all your assets, including retirement plans, and advise you about how the division of assets will affect your future and any tax implications you may face.

Can My Spouse Take Half My Pension If We Divorce?

Generally, your spouse is entitled to half of the earnings generated during the marriage; however, each state's law will determine the outcome. Some states are equitable distribution states, though this does not always mean a 50/50 split. Community property states stipulate a 50/50 split.

How Are Pensions Valued in Divorce?

The first step in valuing a pension in a divorce is determining if it is a defined contribution plan or a defined benefit plan. Defined contribution plans are valued as the total assets in the account. Defined benefit plans require a present value calculation. Once these items are determined, there are typically three methods that can be used to determine the value of the pension in a divorce. These are the segregated method, the subtraction method, and the coverture method.

Should I Cash Out My 401(k) Before My Divorce?

Generally, no. Cashing out your 401(k) before the eligible age will result in penalties and taxes, which will significantly reduce the value of your account. Though some withdrawals are allowed without penalties, known as hardship withdrawals, a divorce is not considered a hardship withdrawal.

The Bottom Line

Getting divorced is stressful, and it pays to be smart about how you tackle the various financial issues involved. That's especially true when your retirement is on the line. Before signing off on a division of your pension, take time to understand what your rights are and what options you have for working toward a compromise that will satisfy both you and your future ex-spouse.

When in doubt, make sure you consult someone who can help guide you through the proceedings. Financial professionals, such as CDFAs, specialize in the division of assets during divorce proceedings.

Article Sources
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  1. Internal Revenue Service. "Retirement Topics - QDRO - Qualified Domestic Relations Order."

  2. Internal Revenue Service. "Publication 575: Pension and Annuity Income," Page 4.

  3. Internal Revenue Service. "Publication 575: Pension and Annuity Income," Page 39.

  4. Institute for Divorce Financial Analysts. "How CDFA Professionals Help."

  5. Institute for Divorce Financial Analysts. "Become a CDFA Professional."

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