In 2018, the Pension Rights Center received roughly 2,000 inquiries from people seeking free legal assistance with their retirement plans. About one-fifth of those inquiries involved divorce. Emily Spreiser, Legal Program Director at the Pension Rights Center, shared this number during the National Institute on Retirement Security’s (NIRS) annual conference in Washington, DC on March 3, where she presented on how divorce can affect the retirement security of spouses of public employees.
(Presentation starts at 2:23:14)
“Retirement benefits are often the largest asset in a marriage other than maybe a home,” Spreiser said in the presentation. “So obtaining a share of a former spouse’s retirement benefit makes a huge difference.”
However, depending on the state, locality, and the pension plan, the process can be especially cumbersome.
According to Spreiser, one has to obtain a divorce decree that specifically mentions the ex-spouse has a right to a share of the retirement benefits.
Having a decree that does not specifically mention this provision will leave the ex-spouse vulnerable to losing their share of the benefit if the primary beneficiary remarries, dies, or takes their pension out as a lump sum.
After obtaining the divorce decree mentioning the ex-spouse having a right to a share of the retirement benefits, the ex-spouse then must file a separate court order to a retirement plan known as a Domestic Relations Order (DRO). This specifies “how much the employee and ex-spouse are to be paid, when they are to be paid, and the form of payment.” Many family law attorneys do not realize that this separate order is necessary for an ex-spouse to receive their share of a retirement benefit.
However, many retirement plans may not comply with a DRO for a variety of reasons, as they do not have “procedures for handling a court order awarding pension benefits to a divorced [spouse],” or plan officials may not know the familiarities of their state’s divorce laws.
In some plans, ex-spouses may not even have the option of going to court to claim their share of the retirement benefits. By design, an ex-spouse may not get a benefit simply “because their retirement system doesn’t specifically allow any payments to former spouses” and “some retirement system officials may say that divorced wives can’t collect widows’ benefits because a ‘widow,’ as defined in the retirement system rules, is a person still married to the retiree when he dies.”
As a result, there is no one universal rule book outlining guidance on pensions and divorce, and these claims are handled state by state, locality by locality, and retirement plan by retirement plan.
For more information on pensions and divorce, visit the Pension Rights Center. In 30 states, ex-spouses can also receive free legal assistance with this topic and other matters by contacting the Center.