...retirement

Jurisdiction: 

Area of Law: 

Question: 

I was married for 15 years and have been divorced for 18. My ex-husband is getting ready to retire, am I entitled to part of his retirement

Selected Answer: 

DakotaLegal's picture

Very possibly. The first set

Very possibly. The first set of specific answers are probably going to be in your divorce decree or settlement agreement. One big factor is going to be where your divorce decree was entered. Though Colorado is a community property state, it's possible the decree was entered east of the Mississippi, where community property (50/50) is less common. At any rate, almost all states now look to the dissolution of marriage as the place to try and settle claims to retirement funds. Here’s a pretty typical set of facts, where the wife didn’t do anything until too late. http://caselaw.findlaw.com/az-court-of-appeals/1329908.html So start with your divorce decree and see what it says: does it say anything about retirement accounts, or (if it does) how does it divide up property at the time of marriage?

Fortunately, your possible eligibility for Social Security retirement benefits is simple to calculate. You might receive benefits on your ex-husband’s Social Security record if:

•Married to the ex-husband for at least ten years (you were);
•You’re 62 years or older;
•Unmarried, and
•Not entitled to a higher Social Security benefit your own work record.

http://ssa-custhelp.ssa.gov/app/answers/detail/a_id/299/~/qualifying-for...

Next, without regard to the divorce decree, though, there are other issue that need to be looked into, beginning with the rules of the annuities themselves. You may have some limited rights to actually look at the annuities or retirement plans for your husband’s retirement fund plans, but you can certainly get information from a known company. Look at what the plans from the years covering the plan say about both designated beneficiaries, and contingent beneficiaries. It is possible that if your husband remarried, he did not designate a new beneficiary, or may have failed to follow the rules, laid out by the retirement fund manage, for removing an old beneficiary, or in designating a new beneficiary. There are court rulings that where a husband failed to follow the rules of changing a beneficiary, and the decree did not say anything about retirement assets, the original (divorced) wife had acclaim to some of the retirement benefits. In the following case, the ex-husband’s new wife did not automatically get his retirement benefits (after the husband had died; the ex-husband tried to change the terms of the retirement policy with a later will, but could not). http://caselaw.findlaw.com/us-10th-circuit/1370947.html

If you do not know the names of your husband’s retirement company plans, you will balance trusting your ex will work honestly with you or seek a court order. Since 1994, Colorado has made it harder for an ex-spouse to get anything from a retirement fund, once the ex-spouse dies. The following is a case involving an insurance fund: http://caselaw.findlaw.com/co-court-of-appeals/1023453.html. In this case, the ex husband left the ex-wife as beneficiary and kept paying annuities. A challenge to remove the ex-wife failed.

You have been listed as being from Colorado, so many of the suggestions here are going to do with Colorado. You’ll also see that the category (e.g., public education, IRA, Keogh, military, or fireman’s retirement) of the “retirement” asset will have real importance. These groups of occupations often give the ex-spouse or their later dependents certain protections from sharing retirement benefits with an earlier spouse.

Though it's probably unlikely (since most people don't have them), the existence of a pre-nuptial agreements might also be an issue. At the time of the marriage, were your assets mingled or maintained a separate property? Were there any promises made? Try to recall these possible twist in calculating both what is yours legally, as well as morally. Sometimes, a husband may have been married to someone (before you), and made a promise to you about what he was “going to do.” If you had children together, their rights may also be affected.

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DakotaLegal's picture

Very possibly. The first set

Very possibly. The first set of specific answers are probably going to be in your divorce decree or settlement agreement. One big factor is going to be where your divorce decree was entered. Though Colorado is a community property state, it's possible the decree was entered east of the Mississippi, where community property (50/50) is less common. At any rate, almost all states now look to the dissolution of marriage as the place to try and settle claims to retirement funds. Here’s a pretty typical set of facts, where the wife didn’t do anything until too late. http://caselaw.findlaw.com/az-court-of-appeals/1329908.html So start with your divorce decree and see what it says: does it say anything about retirement accounts, or (if it does) how does it divide up property at the time of marriage?

Fortunately, your possible eligibility for Social Security retirement benefits is simple to calculate. You might receive benefits on your ex-husband’s Social Security record if:

•Married to the ex-husband for at least ten years (you were);
•You’re 62 years or older;
•Unmarried, and
•Not entitled to a higher Social Security benefit your own work record.

http://ssa-custhelp.ssa.gov/app/answers/detail/a_id/299/~/qualifying-for...

Next, without regard to the divorce decree, though, there are other issue that need to be looked into, beginning with the rules of the annuities themselves. You may have some limited rights to actually look at the annuities or retirement plans for your husband’s retirement fund plans, but you can certainly get information from a known company. Look at what the plans from the years covering the plan say about both designated beneficiaries, and contingent beneficiaries. It is possible that if your husband remarried, he did not designate a new beneficiary, or may have failed to follow the rules, laid out by the retirement fund manage, for removing an old beneficiary, or in designating a new beneficiary. There are court rulings that where a husband failed to follow the rules of changing a beneficiary, and the decree did not say anything about retirement assets, the original (divorced) wife had acclaim to some of the retirement benefits. In the following case, the ex-husband’s new wife did not automatically get his retirement benefits (after the husband had died; the ex-husband tried to change the terms of the retirement policy with a later will, but could not). http://caselaw.findlaw.com/us-10th-circuit/1370947.html

If you do not know the names of your husband’s retirement company plans, you will balance trusting your ex will work honestly with you or seek a court order. Since 1994, Colorado has made it harder for an ex-spouse to get anything from a retirement fund, once the ex-spouse dies. The following is a case involving an insurance fund: http://caselaw.findlaw.com/co-court-of-appeals/1023453.html. In this case, the ex husband left the ex-wife as beneficiary and kept paying annuities. A challenge to remove the ex-wife failed.

You have been listed as being from Colorado, so many of the suggestions here are going to do with Colorado. You’ll also see that the category (e.g., public education, IRA, Keogh, military, or fireman’s retirement) of the “retirement” asset will have real importance. These groups of occupations often give the ex-spouse or their later dependents certain protections from sharing retirement benefits with an earlier spouse.

Though it's probably unlikely (since most people don't have them), the existence of a pre-nuptial agreements might also be an issue. At the time of the marriage, were your assets mingled or maintained a separate property? Were there any promises made? Try to recall these possible twist in calculating both what is yours legally, as well as morally. Sometimes, a husband may have been married to someone (before you), and made a promise to you about what he was “going to do.” If you had children together, their rights may also be affected.