Retirement benefits are considered assets to be distributed in a divorce. Whether a particular state treats the retirement benefits as marital property or not depends on the individual state's rules and whether or not the retirement account benefited from marital funds. Even if spouses keep separate bank accounts, in some states, monies eared during a marriage are considered marital funds.
A husband's retirement benefits may be deemed non-marital if all of the funds that built the retirement fund were earned prior to the marriage and no other funds were put into the fund after the date of marriage. In equitable distribution states, a husband's retirement may be deemed non-marital, but interest the account gained may be deemed marital.
Co-mingling of Funds
If funds are co-mingled, whether through joint bank accounts or because interest is added to the retirement account during the marriage, the retirement account may become joint property and subject to the state's rules for distribution. Many states are leaning toward equitable distribution, which looks closely at which assets are marital and which are not. Equitable distribution takes into account how much each spouse has in non-marital property when making a division of marital assets.
Keeping Your Retirement Benefits
The best way to keep your retirement benefits is to plan ahead of time. If you have a considerable amount saved before marriage, you should ask your spouse to sign a prenuptial agreement. The prenuptial agreement details what happens to each spouse's retirement savings in the event of a divorce. A prenuptial agreement can also be tied in with a will: In the event the husband dies, he can make sure his retirement goes to the person he wants it to go to, whether it is his wife, children, another relative or a donation to charity.
When most couples get married, they do not plan on getting a divorce---but divorce may happen. It is better to plan ahead if you do not want your soon-to-be ex-spouse to have any part of your retirement, especially if no funds were added to the retirement during the marriage.
Military Retirement Benefits
The Defense Finance and Accounting Service (DFAS) determines the division of military retirement benefits. If you are in the military and married, you must visit a military attorney regarding questions about military retirement benefits. Generally, the wife will get her share, unless she agrees that she does not want a share of the husband's retirement benefits.
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