If I divorce my husband, am I able to ask for any portion of the early pension he is already collecting?

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If I divorce my husband, am I able to ask for any portion of the early pension he is already collecting?

He was forced to retire or if the union lost his case, be terminated with no benefits, so he took the early pension and it’s what we have been living on.

Asked on October 29, 2012 under Family Law, Wisconsin

Answers:

B.H.F., Member, Texas State Bar / FreeAdvice Contributing Attorney

Answered 8 years ago | Contributor

Several factors could influence whether or not you could receive a portion of your husband's pension benefits.  However, two main ones are the timing of when the benefits accrued and the nature of the benefits.

First, the funds in the pension account must have accrued while you were married.  If you were married over the last several years and the pension accrued through wages earned during the marriage, then yes, you could have an interest to assert in the property.  If you just got married and he accrued the pension prior to your marriage, then no, you would not be able to assert an interest in the pension.

Assuming that you do have an interest in the pension, the next factor that will control when/how you could receive the benefits is the nature of the benefits.  There are different kinds of pension plans.... some kick in at retirement or early retirement, while others are considered a substitute for disability benefits.  If he is currently receiving benefits as part of a disability pension as a replacement for lost income, then you would generally not be able to collect a portion of these particular benefits after divorce.  You would have to wait until he started collecting regular pension benefits to begin collecting any shares awarded by the court.   If he is currently receiving regular, retirement benefits, then you could assert an interest and be awarded a portion of the pension that he is collecting.  In deciding if and how much of these benefits to award, the court will look to a variety of factors including the living expenses of each spouse, the special needs of either, and the total value of the community estate.  This is not an exhaustive list-- but it does give you an idea of what the court will review in making it's decision.

If you are not sure what type of benefits your husband is receiving, then see what documentation you can gather on the payments and take them to a family law attorney to review. 


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