Can I Get Half Of My Spouse’s Retirement During Our Divorce?
Today’s question comes from Shayna and it deals with a division of her spouse’s retirement during their divorce.
The answer to this question is: IT DEPENDS.
Nevada is a community property state. Anything that is earned during the marriage is generally divided down the middle, equally distributed, however, with a retirement account, a 401k, and IRA, things like this, they are divided equally, but only for half for the time of the marriage.
If your spouse had their retirement prior to marriage, and then you got married and their retirement continued to be funded during the marriage for 10 more years, you are entitled to half of the retirement fund for the time of the marriage.
Anything prior to the 10 years of marriage goes as separate property to your spouse, anything after the 10 years that have been accrued during the marriage is equally split down the middle.
In order to divide a retirement account, a 401k, and IRA, we do what is called a Quadro, a qualified domestic relations order. This is something that is put in place in your divorce decree that gives your pension company direction on how and how much to divide for the pension. This is typically not funded until after retirement time. So you have to wait until you’re eligible for retirement to be able to get this money.
There are exceptions to this rule. If, for example, one of the spouses is very financially destitute. Then the court might order that those funds be distributed early on and not have to wait until later since one of the parties is destitute.
So again, your spouse’s, retirement account can be equally divided for the time that you were married. If that money was earned during the marriage.
I hope this has cleared up and answered this question for you, Shayna. And if you want to discuss this further, please give me a call. Or go to vegasdivorcemeeting.com.
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