Can you receive some of your ex’s pension in a Texas divorce?

On Behalf of | Aug 21, 2020 | Divorce

People in different careers may plan and save for retirement in various ways. Many people use specialized, tax-deferred savings accounts to put funds aside for their retirement, in part because these accounts are more portable than other options.

However, 401Ks, Roth IRAs and similar accounts are far from the only options available for retirement funding. Some individuals also accrue pension benefits through long-term employment at the same company. Regular pension payments can help people budget for their retirement.

Pension benefits can represent a substantial amount of money and may be the primary or only source of retirement savings from your marriage. If you plan to divorce your spouse who has accrued pension benefits during your marriage, can you receive a portion of those benefits in the divorce?

Community property laws give spouses a claim to sharing a pension

The Texas family courts will use the community property standard when finding a way to split assets up on behalf of a divorcing couple. Community property refers to the shared or mutual ownership interest that spouses have in all assets and debts acquired by the couple during their marriage.

While a pension will usually only have the spouse working for the company named as a beneficiary, that doesn’t mean that these funds are separate property. Separate property is typically exempt from division, but the name on the account isn’t what makes it separate property. Instead, assets are separate property if someone owns them prior to marriage, received them via inheritance or designated them as separate property in a marital agreement with their spouse.

Pensions are often partially separate property and partially community property, as your spouse may have made contributions prior to your marriage to the account.

You have a right to ask for a portion of the pension or its value

Splitting a pension doesn’t have to be difficult. Family courts can issue a Qualified Domestic Relations Order as part of your divorce decree that orders a plan administrator to split a pension into two accounts. It’s also possible for the judge to determine your share of the pension value and then allocate other assets to compensate you for your share of the pension.