What happens to my retirement benefits in divorce?
Retirement plans and employee benefits that have accrued during the marriage may be divided by the court between you and your spouse. However, those benefits which existed at the time of marriage remain a spouse’s separate property and are not divided upon divorce so long as there is documentation of the value of the benefit prior to marriage. A qualified domestic relations order is used to divide a retirement plan which has accrued during the marriage. Stock options, pensions, 401(k) accounts and bonuses are also divisible upon divorce.
They will be divided as part of the community estate. If you earned them or part of them before marriage, that portion will be restored to you as your separate property and the balance will be divided between you and your spouse. Alternatively, you may want to receive all of your retirement benefits and trade some other property to your spouse in exchange for them. There is no requirement that every assets be divided between the spouses. Some may receive all of one and none of another, if that is what they want to do.
Michael R. Puhl