How are retirement benefits divided in a divorce if my husband is already retired?

I think my husband is going to retire within a month or two. I think he is trying to move or rollover his retirement or take it in a lump sum and then divorce me. He doesn’t want me to get 12 or any of his retirement. Can he do this? I know that I can file for divorce before he retires and secure 1/2 or his retirement, but I’m not ready to file for divorce. I think he will file if he can hide/move his retirement money. Not sure what to do.

Asked on September 7, 2011 under Family Law, Illinois

Answers:

M.T.G., Member, New York Bar / FreeAdvice Contributing Attorney

Answered 9 years ago | Contributor

Retirement benefits - pension plans, 401 (k), whatever - are clearly considered marital property under the laws of property distribution in the state of Illinois.  The court has to determine how much of the benefits are marital property ( in other words how much of the benefit was acquired during the marriage - and how much was acquired before the marriage making it separate property.  Once that is determined it is "put in the pot" so to speak for distribution and a QDRO is generally issued (A Qualified Domestic Relations Order).  If the retirement benefit is already being paid out, the plan administrator can sometimes pay your portion directly to you. You need to check out the requirements of the plan from the plan administrator itself.  Good luck.


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