Pension Rights After Divorce

A pension earned during marriage is generally considered to be a joint asset of both husband and wife. However, it is up to state divorce courts to decide whether and how pension assets are divided, and whether survivors benefits are payable. Except in the case of Social Security and Tier I Railroad Retirement benefits, a court order is necessary for someone who has been divorced to get a share of a pension.

If a pension is divided between divorcing spouses, it must generally be done at the time of divorce when other marital assets are divided. The court order or court approved property settlement that provides for a pension plan to make payments to a former spouse is called a domestic relations order.

Most retirement plans will pay pension benefits directly to divorced spouses if the domestic relations order meets certain requirements. In the case of private retirement plans, a domestic relations order (DRO) that meets these requirements is called a "Qualified Domestic Relations Order" or "QDRO." In most cases, payments can be made for the life of the employee or retiree, and also after death (whether it occurs before or after retirement).  Some state, city, county, and town retirement plans will not make direct payments to former spouses. See State Retirement Systems and Divorce.

The rules relating to the division of pensions at divorce are complicated and vary from state to state and retirement system to retirement system. In addition, rights vary depending on when a divorce occurred. Many women (and men) were divorced when pensions were not considered to be marital assets, or before retirement plan rules changed to permit direct payment to former spouses. 

Because of the complexity of the laws relating to the division of pensions at divorce, it is important to try to find a domestic relations lawyer knowledgeable about the rules of the relevant retirement system. The National Pension Lawyers Network, a free lawyer referral service, may be able to find a lawyer to help you.   

You may also want to read 7 Key Questions You Need to Ask Before Your Divorce is Finalized, by Anne E. Moss, author of Your Pension Rights at Divorce.

A more technical resource explaining the requirements for court orders dividing private retirement plans is QDROS…The Division of Pensions Through Qualified Domestic Relations Orders, a U.S. Department of Labor, Employee Benefits Security Administration publication.

You may also want to read about recent changes in the law relating to pension rights after divorce under the Railroad Retirement System and private retirement plans.