Divorce and Pension Benefits: What are a Woman’s Rights During Divorce?

Submitted by: Cathy

nesteggThe Employee Retirement Income Security Act of 1974 and the Internal Revenue Code of 1968 allow a former wife to have rights to an ex-husband’s pension benefits. Pension rights at divorce depend on two sets of rules:

• The rules of your ex-spouse’s retirement system; and

• The divorce laws of the state in which your divorce takes place. State laws on pension rights at divorce are usually the same for pensions from all retirement systems.

There are two types of pension plans, private sector and public sector. What type plan your ex-husband has will determine whether or not you can receive benefits, how much you can receive, how often and for how long. You and your divorce attorney will base your options on the provisions of the individual pension plan.

Dividing Private Sector Pension Plans During Divorce:

Under private pension plans there are two types of plans. You have a “defined contribution” and “defined benefit” plan.

Defined Contribution Plan:

A defined contribution plan is a private tax-deferred savings plan established by a company or individual to provide a monthly lump sum of income to an individual upon retirement. A 401(K) is an example of a defined contribution pension plan.

A defined contribution plan is marital property; indeed, pensions and houses are the two most valuable marital assets a couple divide in a divorce.

In a divorce, the value of a defined contribution plan is easy to calculate: it is simply the balance in the account.

The valuation date of a defined contribution plan is very important because, unlike a defined benefit plan (the old fashioned company pension), the value of a defined contribution plan can fluctuate dramatically after a couple separate but before they divorce.

In dividing a defined contribution pension, courts are unanimous that they are not to be discounted to present value.

Defined Benefit Plan:

A defined benefit is a plan established by a company, union or individual to provide a monthly income for life to an individual upon retirement.

Unlike 401(k)s where a person owns a fund with a readily ascertainable value, with a defined benefit plan an employer pledges to pay a specific amount upon retirement, depending upon the age of the employee, years of service, salary while working there, etc. Once defined benefit plans were the most common retirement plans around, now they are most often seen with public employees or large corporate employers.

A divorce court can divide a defined benefit plan, and distribute benefits to an ex-wife. The degree of complication to effect the division depends upon the employer. When a defined benefit plan is divided, the ex-wife will receive her portion of the retirement benefits only when the ex-husband receives his benefits.

A Qualified Domestic Relations Order (QDRO) MUST be filed for you to receive benefits from a private sector pension.

Dividing Public Sector Pension Plans During Divorce:

If your ex-husband is a Federal government employee, he is a member of either the Civil Service Retirement System or the Federal Employee’s Retirement System. Instead of filing a QDRO, a Court Order Acceptable for Processing must be filed by your lawyer.

If your ex-spouse is employed by the State/Local Government or is a Teacher, a domestic relations order must be filed by your lawyer.

Social Security Benefits After Divorce:

Federal law (42 U.S. Code §407(a)) prohibits states from dividing Social Security benefits in a divorce. An ex-wife married for 10 years or more is entitled to full spousal and survivor benefits under social security, while one married less than 10 years is entitled to none.

You must be at least 62 years of age and never remarried to be eligible for his social security benefits. However, if you remarried and your husband passed away or you two divorce your rights to your first husband’s benefits are restored.

Dividing Military Pension During Divorce:

The Uniformed Services Former Spouses Protection Act, 10 U.S.C. 1408, has specific provisions for the division of a military pension. You should know:

For equitable distribution of the benefits, you must have been married for at least 10 years while your spouse was in active duty. If you were not married for 10 years during active duty, the order for division of benefits must be written as spousal support payments.

The maximum amount awarded is 50% of benefits. If combined with child support or alimony payments, then 65% of benefits may be awarded to you. If your ex-husband is eligible for a military pension, you must file a Retired Pay Court Order. The Retired Pay Court Order MUST be filed during a divorce or as part of a property settlement, not post-divorce.

You will also need to apply for payment by completing DD Form 2293, which can be obtained through the Defense Finance and Accounting Service. Include a copy of the applicable court order certified by the Clerk of the Court within 90 days of sending, your former spouse’s social security number and your contact information. Mail or fax this information to:

Defense Finance and Accounting Service
Cleveland Center-L
P.O. Box 998002 Cleveland
OH 44199-8002
Phone: (216) 522-5301
Fax: (216) 522-6960

More Articles:

Is Your Divorce Attorney Meeting Your Expectations?

Parental Alienation: “A Uterus, Divorce Papers and Bruises”

The Financial Impact of Divorce: There is More to it Than Splitting Marital Assets


  1. 1

    Catie says

    Public Sector Pensions As Marital Assets but Social Security Retirement Is Not

    As a former public sector employee who has spent most of her career in the public sector and subsequently divorced, I had a very rude awakening when it came to splitting the marital assets of my marriage. Like most public sector employees, federal, state, municipal and teachers, I contributed very little to Social Security as I had a mandated employee pension system I had to contribute to. Therefore, my pension was my only retirement asset and my former spouse had his Social Security retirement he had contributed to, his only retirement asset.

    In most, if not all states, Public Employee Pension Plans are considered marital property. These public employees do not pay into the retirement portion of the Federal Insurance Contributions Act (FICA) and do not receive Social Security benefits once they retire, or very little. According to the law, they may be able to receive reduced benefits based on their spouse’s contributions, minus their own pension.

    Social Security benefits are not Marital assets. Social Security benefits are non-assignable and nontransferable, but public sector pensions are.

    Also, two provisions exist that reduce the Social Security benefits the public sector employee is eligible to receive: One is the Windfall Elimination Provision (WEP). This provision applies to the employee’s own earning’s record for jobs in which they did contribute to Social Security. It reduces the Social Security benefits by 50% of the government monthly pension benefit. The second is the Government Pension Offset (GPO). This provision greatly reduces the benefits a widow or ex-spouse can receive. If a public sector employee was also employed for 30 years in the private sector and contributed to Social Security they would be able to collect a minimum monthly allowance after deduction of their public sector pension. These amounts are minimal.

    Here is an example of how the above offsets would impact Cindy, a soon to be retiring public sector worker. Cindy is divorced from Dan who worked in the private sector. This is a long term marriage.

    Facts: Cindy is age 50 and took an early retirement package. With the impact of WEP and GPO on Cindy’s Social Security, Cindy cannot collect any of Dan’s Social Security, nor can she collect any of her contributions unless she also contributed to FICA for 30 years.

    Dan is age 55 and still working in the private sector.

    Cindy’s School District pension is $2,100 per month and is 100% community property
    Dan’s Social Security benefits are $2000.00 per month if he does not continue to work and retires early, this is not community property

    Now let’s take into consideration the effect of divorce laws of most states. Most state law states that the marital assets will be divided equitably but not necessarily equally. Remember, Cindy’s pension is a marital asset, while Dan’s Social security is not. Some states, but not all, take into consideration the Social Security benefit of the spouse, but some states do not.

    Based on Cindy’s school pension, which is considered marital property by state law, Dan could be entitled to receive 50%, therefore reducing Cindy’s pension payments to $1050.00 a month, while Dan collects his social security of $2000.00 a month plus the $1050.00 from Cindy’s pension for a total of $3050.00. While a competent judge might take Dan’s Social Security into consideration and decide an equitable division is that Dan receives 20% of Cindy’s pension, Dan receives a total of $2,520.00 while Cindy’s pension is reduced to $1,680.00 per month.

    If public pensions were not marital property, Dan would receive $2,000.00 and Cindy would receive $2,100.00, the contributions they both made. An almost equal retirement benefit.

    A number of states have dealt with the above inequity and there is quite a bit of case law regarding it. Unfortunately, the real issue here is that the federal government and states alike need to change the provisions of the law to make the division of retirement assets fair in cases such as these where there are only mandatory pension or social security contributions. They are penalizing their own workers. People who run their governments, states, cities, and schools. Public labor unions need to be involved in changing the benefits their members are being stripped of.

    Your elected representatives need to make this an even playing field by either adding Social Security benefits to be included as marital assets or by eliminating government pensions being included as a marital asset. You cannot include one and not the other as they are both mandated contributions. Another option would be to eliminate the WEP and the GPO.

    A change needs to be made to this unfair practice so a truly equitable division of property is possible and government employees are not penalized for their public service.

    If you are part of a Public Pension System, whether divorced, or not, you need to contact your union, your State Representatives and your Federal Representatives to change this unfair practice of penalizing public sector workers.

  2. 2

    Carol says

    I have been fighting for six years after my divorce just to get my x husbands pension administrator to respond to the joinder and send financial information
    and whatever rules they have for a QDRO…and I have an attorney! Obviously,
    not one who feels my issues are of grave importance. Knowing what the law says
    has done me no good either; because I can not seem to get anyone to actually enforce them!? Without knowing how much the pension is or may be worth, I am unable to complete the process of my divorce and move on. I can’t even try to negotiate with my x on the matter to get it settled. I have found out that somewhere between the time I filed for divorce in 2005 and now, this ‘pension’
    as they are now calling it, used to be a profit sharing benefit.I have never been able to get ANY information form my x or his employer or the administrator.

  3. 3


    Seems like you actually understand a good deal pertaining to this specific subject matter and this demonstrates as a result of this excellent
    post, given the name “Divorce and Pension Benefits: What
    are a Woman’s Rights During Divorce? | Divorced Women Online”.

    Thx -Kerstin

  4. 4

    Diane says

    Carol Meyer: In your above essay, you state, “In dividing a defined contribution pension, courts are unanimous that they are not to be discounted to present value.” can you elaborate on this, please?

    I am in a situation where since our seperation (I moved out of the bedroom, we are still under the same roof), 30 months ago, my pension has increased considerably. He has NO pension, because during our 25 year marriage he was barely able to hold down a job, much less one that offered pension bebefits.

    Am i reading your quote correctly that he would only be entitled to a portion of the balance as of our seperation date? in our stae, there is no “legal sep”. We must be seperated for a minimum of 6 months in order for a divorce to be granted (delaware).

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