IfI get divorced are my retirement accounts at risk in a property settlement?
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IfI get divorced are my retirement accounts at risk in a property settlement?
I recently brought someone to NYfrom the Philippines on a K-1 Visa. We intend to marry within the 90 days that her visa allows. She has refused to sign a pre-nuptial agreement, saying she doesn’t believe in divorce. If a divorce does happen, is any of the money that I have in retirement accounts up for grabs in any divorce proceedings?
Asked on July 21, 2011 New York
Answers:
S.J.H., Member, New York Bar / FreeAdvice Contributing Attorney
Answered 12 years ago | Contributor
With retirement accounts, your soon to be spouse would be entitled to a marital share of what accrued in the account from the date of marriage to the date of the commencment of a divorce action. If this is a retirment account such as a 401K or IRA, it would be whatever monies accrued between that time. If it is a pension it is a formula based on the amount of months married over the amount of months that you were in the plan. Her share is up to the court but in most cases it would be 50/50 for these types of things. so for instance if you had $100,000 upon marriage and when the divorce is filed it is $200,000. she would have a marital interest in the $100,000 which accrued during that time. With a pension if you were married 10 years and in your system 20 years thats 120 months over 240 months so she would have a right to seek her share of 50% which means she probably gets 25%.
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