My spouse and I are currently in the middle of a messy divorce. I am wondering whether I will be entitled to share in my spouse's pension plan?
First of all, let me clarify what a pension plan is. Pension plans are typically fixed payments made by someone (often employers, unions, or the government) paid to someone after a person retires (or sometimes becomes disabled). You can think of it as continuing income made in the form of a guaranteed annuity to a retired (or sometimes disabled) person.
Whether or not you will be eligible to receive some portion of your soon to be ex-husband's pension will depend on your state's current laws. Lucky for you, however, many states do consider that pensions belong not only to the participant in the pension plan, but also his/her spouse jointly. Thus, these states believe that if the pension (or any portion thereof) was earned during the marriage, you will likely be eligible to receive a percentage of it. If, however, your ex-husband earned his pension at a job that he worked at that was not during the course of your relationship, your case will be considerably more difficult.
A court may award part or all of a participant's pension benefits to a spouse, depending on the circumstances. If the court chooses to do so it will issue a court order called a domestic relations order. The plan administrator will then determine if the order is a qualified domestic relations order. If the order is qualified under the plan's procedures, the administrator will then notify the participant and the alternate payee (you in this case). You will then be eligible to collect at the date the original beneficiary (presumably your husband) would have been able to.
Remember that while federal law does make an exception for family support and the division of property at divorce, it does not generally allow claims by other people. For instance if you owe creditors money, your retirement is immune from these claims (even if you transfer a 401(k) account into an individual retirement account (IRA)).
If you have any questions regarding this topic you should visit an attorney who specializes in divorce to help you understand and protect your rights. For more information, see The Division of Pensions Through Qualified Domestic Relations Orders, available by calling toll free at 1.866.444.EBSA (3272) or on the Web.
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Lis Wiehl joined FOX News Channel as a legal analyst in October 2001. She is currently a professor of law at the New York Law School. Wiehl received her undergraduate degree from Barnard College in 1983 and received her Master of Arts in Literature from the University of Queensland in 1985.In addition, she earned her Juris Doctor from Harvard Law School in 1987.
Lis is also the author of The 51% Minority — How Women Still Are Not Equal and What You Can Do About It . ( Watch the Video ) and Winning Every Time: How to Use the Skills of a Lawyer in the Trials of Your Life
To read the rest of Lis's bio, click here.