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Retirement Division in Divorce

Posted by E. W. Childers | Oct 02, 2019 | 0 Comments

Can I Split My Spouse's Retirement Plan in Divorce?

Yes, generally. If you convince the divorce court that splitting a retirement plan would be part of an equitable division of marital assets, then in Oklahoma the retirement could be split between the parties. There are some caveats and complications though, and some plans or accounts are more easily split than others so the actual facts and circumstances of your situation will heavily inform the outcome of your case. Are you a military couple? Was any of the retirement accumulated prior to the marriage? Have you been split up from your spouse for an extended period of time prior to actually filing for the divorce? How long were you married? Do you also have a retirement plan that may be subject to division in divorce? All these questions, and potentially many others, have to be answered before a real answer can be given in any situation. With that said, let's see how it works generally.

Retirement Plans are Protected Assets

Usually retirement plans are not subject to attack by lawsuits. This is because Congress passed the Employment Retirement Income Security Act (ERISA) so that old people wouldn't be homeless or a burden to the government just because somebody sued them over a hospital bill or whatever. However, the same act also made provision for divorce. Many couples, especially back when ERISA was passed consisted of a working spouse and a home-keeping spouse. Without the spousal protection provisions of ERISA it would be possible that the working spouse in a divorce action might get to keep what is often the most valuable asset a married couple has, employee retirement plans. Now, even though the old model of a working spouse and a housekeeping spouse has been largely replaced by dual income house-holding, there are often large disparities in the income and retirement plans of spouses such that very often the equitable division of property demanded by Oklahoma divorce laws would be impossible without a division of retirement plans.

How It Works

If the divorce court finds that the division of one or more retirement plans is necessary for the equitable division of marital property to occur, it will direct counsel for the parties to draft a Qualified Domestic Relations Order for each plan to be divided. This type of order is complicated and according to ERISA must comply with the requirements of the plan which obviously vary from plan to plan. Once the order is drafted, it can be approved by the divorce court and served on the retirement plan administrator who will, if the order complies with the requirements of the plan, generally establish a separate account for the non-employee spouse on the same lines as the original plan that existed for the employee spouse.

What About Military Retirement

A military retirement is similar enough to a civilian retirement plan but there are significant differences. The plan can always be divided in accordance with state law, however, in some scenarios the service member spouse would be directly ordered to pay the non-service member spouse their share of the benefit in accordance with court order. This is because the Department of Defense Finance Agency can only be ordered to implement a split (which is accomplished with a Court Order Acceptable for Processing (COAP) if the marriage fulfills certain criteria, the most basic one being that the parties were married for at least ten years with the service member being in the service for at least ten of those years. More benefits accrue to the non-service member spouse the longer the marriage was during the service time of the service member spouse.  

About the Author

E. W. Childers

I am a husband, father, Army veteran, and attorney here in Norman, Oklahoma. I've been practicing law throughout Central Oklahoma since 2006 shortly after I graduated from the OU College of Law. In my practice I have emphasized Family Law, Criminal Defense, and Personal Injury. I like to help peo...

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