Is My Spouse Entitled to My Retirement Benefits During a Divorce?

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One of the main benefits of working is that you get to save for your retirement! However, when your benefits are at risk during your divorce, you may start to panic. Is your soon-to-be ex-spouse entitled to your retirement benefits? Understanding what happens to your benefits is vital to preparing for the next chapter of your life. Keep reading to learn more and discover how a Suffolk County divorce attorney can help protect your assets.

What Should I Know About Retirement Benefits and Divorce?

When getting divorced, it’s vital to understand that your retirement benefits are almost always considered marital property. New York follows equitable distribution laws, meaning a spouse is not guaranteed 50% of your assets simply because you were married. The courts will consider their income, contribution to the relationship, and other factors to determine how your marital property will be split. In terms of retirement, there are typically four types of benefits that adults can obtain – IRA, pension, 401k, and social security benefits.

If you have an IRA, pension, or 401k, these are subject to distribution. Generally, whatever funds you put in the account after you were married can be divided during your divorce. For example, if you had $10,000 in your retirement account before you tied the knot and accrued an additional $40,000 throughout the course of your marriage, only the $40,000 would be considered marital property and thus is subject to distribution. It is vital to note that a spouse can only access the other’s 401k funds if they have a Qualified Domestic Relations Order (QDRO) which allows them to transfer these funds into a different retirement account without the money facing exuberant taxes.

Social security benefits differ from IRA, pensions, or 401ks, as they do not impact your benefits. For example, if you receive $2,500 per month, your spouse, if eligible, will receive a check for a portion of that money. However, you are still guaranteed to receive the full amount of benefits you are entitled to. You likely won’t even know your spouse is receiving benefits.

Do I Need a Divorce Attorney’s Help?

If you’re concerned about your retirement benefits during your divorce, it’s vital to contact an experienced divorce attorney as soon as possible. Unlike other community property states where assets are distributed evenly regardless of each partner’s contribution to the marriage, New York will take a number of factors into consideration before determining who can receive which assets. An experienced attorney may be able to negotiate with your spouse’s lawyer to offer them other assets, allowing you to keep your retirement benefits.

When you need help, Peter V. Mandi & Associates can help. Our dedicated legal team will do everything possible to help you achieve a favorable outcome when divorcing. Contact us today to learn more about how we can assist.

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