In both community property states and equitable distribution states, each party is entitled to at least half of all marital assets, regardless of the name that asset appears in. In most cases, this includes a former husband's retirement. While an absolute divorce can cut off this entitlement, properly preserving your property division rights prior to divorce can enable you to go after the other side's retirement, even after a divorce.
Wife's Entitlement to Husband's Retirement
Community property and equitable distribution, the two systems under which American states divide marital property and debt, are based upon the idea that what you earn during your marriage is the property of your union, not just individual parties. While there are many differences between the two types of jurisdictions, they are united in this theory of marital property entitlement. Another shared feature is that the entry of an absolute divorce usually cuts them off. If you want to assert your rights to your ex-husband's retirement, you must either provide for these rights in a marital settlement agreement or file a claim for community property or equitable distribution prior to the entry of a divorce decree.
Types of Retirement You Can Go After
A variety of assets fall under the general classification of retirement assets. Retirement plans include an employer's pension plans, tax-deferred contributory plans such as 401ks, 403bs and Individual Retirement Accounts, or IRAs. They also include non-tax-deferred assets, such as Roth accounts, which are funded with after-tax dollars, but aren't subject to taxation as you make withdrawals. Not all retirement assets are divisible, however. Social Security isn't divisible in divorce, nor are some state or railroad pensions. Make a list of all your ex's retirement assets and consult with a divorce attorney in your state to see what you can pursue.
How Retirement is Divided
Different retirement assets have different requirements for achieving a proper division. An IRA can be divided as simply as sending a copy of the divorce decree to the plan and asking the administrator to split it up. On the other end of the spectrum, 401k and pension plans require the entry of qualified domestic relations orders, or QDROs, to enable a tax-free division. QDROs on pensions can be especially complicated, and require the assistance of an experienced professional. As bungling the retirement division in divorce can result in costly tax consequences, this is one area that most people don't handle themselves.
Why You Might Not Get Any of Your Ex's Retirement
Some community property jurisdictions require an equal division of all marital assets, focusing on the ownership interest each of you has in each item of property. In most states, though, the focus is on your entitlement to the estate as a whole. As such, you may run into a situation where even if you preserve your property division rights, you end up without any of your ex-husband's retirement. This can happen if he is eligible for and receives an unequal division in an equitable distribution state, or where the court elects to compensate you for your half of his retirement in the form of other assets or reduced responsibility for marital debt.