What to do if I’ve been divorce for 5 yrs and my ex-wife is claiming half of my retirement?

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What to do if I’ve been divorce for 5 yrs and my ex-wife is claiming half of my retirement?

Since she’s remarried, is she still able to claim that? I just went on full disability and she is supposed to get about half and that leaves me nothing to survive on for a month.

Asked on October 15, 2012 under Family Law, Ohio

Answers:

S.L,. Member, California Bar / FreeAdvice Contributing Attorney

Answered 9 years ago | Contributor

If you live in a community property state, community property is property acquired during marriage.  Community property also includes income during marriage.  Each spouse has a one half interest in the community property.

Separate property is property acquired before marriage or after the marriage ends.  Separate property also includes income before marriage or after the marriage ends.  A spouse has no claim to the other spouse's separate property.

Your disability payment is your separate property and your ex has no claim.

As for your retirement, your spouse only has a claim to that one half of your retirement which represents income during marriage because it is community property.  The portion of your retirement which represents income after your divorce or before your marriage is your separate property and your spouse has no claim.

For example, if you were married for ten years and have been divorced for five years, your ex has a claim to half of your retirement representing your income during your ten years of marriage because that is community property (income earned during marriage).  Your spouse has no claim to that portion of your retirement representing your income after divorce because that is your separate property.  You have been divorced for five years and your ex has no claim to that portion of your retirement from that income.

If you don't live in a community property state, other rules may be applicable.


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