If my husband and I are both seniors and we divorce, would I be entitled to 50% of his pension?

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If my husband and I are both seniors and we divorce, would I be entitled to 50% of his pension?

We live on Social Security and his pension.

Asked on May 7, 2012 under Family Law, Florida

Answers:

S.L,. Member, California Bar / FreeAdvice Contributing Attorney

Answered 11 years ago | Contributor

If you live in a community property state, community property is property acquired during marriage.  Community property also includes income during marriage.  Each spouse has a one half interest in the community property.

Separate property is property acquired before marriage or after the marriage ends.  Separate property also includes income before marriage or after the marriage ends.  A spouse has no claim to the other spouse's separate property.

As for your husband's pension, the portion of the pension that represents income during marriage would be community property and you would be entitled to half of the pension for the years that you were married.  That part of the pension that represents income before your marriage is your husband's separate property and you would not have any claim to that portion of the pension.

For example, if your husband's pension is based on 25 years of employment, but you and your husband were married 20 of those 25 years, you would receive one half of the pension representing earnings during the twenty years of your marriage.  The other five years of the pension when you were not married to your husband, would be his separate property because it represents income before marriage, and you would not have any claim to that separate property portion of the pension.

If you don't live in a community property state, other rules may be applicable.


IMPORTANT NOTICE: The Answer(s) provided above are for general information only. The attorney providing the answer was not serving as the attorney for the person submitting the question or in any attorney-client relationship with such person. Laws may vary from state to state, and sometimes change. Tiny variations in the facts, or a fact not set forth in a question, often can change a legal outcome or an attorney's conclusion. Although AttorneyPages.com has verified the attorney was admitted to practice law in at least one jurisdiction, he or she may not be authorized to practice law in the jurisdiction referred to in the question, nor is he or she necessarily experienced in the area of the law involved. Unlike the information in the Answer(s) above, upon which you should NOT rely, for personal advice you can rely upon we suggest you retain an attorney to represent you.

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