If I’ve been separated from my husband for over 20 years, what are the retirement benefit differences going to be if I don’t divorce him or if I do?

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If I’ve been separated from my husband for over 20 years, what are the retirement benefit differences going to be if I don’t divorce him or if I do?

I didn’t even know where he was until a couple weeks ago. I work for federal government and I’m 64. He is currently disabled and would be getting my benefits.

Asked on December 27, 2011 under Family Law, Maryland

Answers:

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

Answered 9 years ago | Contributor

If you live in a community property state such as CA, community property is income during marriage.  Separate property is income before marriage or after the marriage ends.

Each spouse has a one half interest in community property. 

A spouse has no claim to the other spouse's separate property.  Income after separation with no intent to reunite is your separate property.  Given the length of your separation, there is clearly no intent to reunite.  So, your income after separation is your separate property and your husband has no claim.

During the years that you were married, your income was community property and your husband would have a one half interest in that income.  Therefore, the portion of your retirement benefits which represent income during your marriage would be community property and your husband would have a one half interest in that portion of your retirement benefits.  The retirement benefits which represent your income after you were separated would be your separate property and your husband would have no claim to that portion of your retirement benefits. 

For example, if you were married for ten years and have now been separated for twenty years.  That portion of your retirement benefits which represents income during the ten years of your marriage would be community property and your husband would have a one half interest in those benefits.  From the time you were separated with no intent to reunite to the present, your income during that twenty year plus period would be your separate property and your husband would not have any claim to the retirement benefits representing income during that period.  The allocation of your retirement benefits is the same whether you are divorced or separated with no intent to reunite

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


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