Is it true that if you have not lived together for over a year, that a judge will still grant your wife half of your retirement?

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Is it true that if you have not lived together for over a year, that a judge will still grant your wife half of your retirement?

My “wife” has not lived with me in our house for 3 years. We are both currently in Chapter 7. We are going to lose the house. Our children are all 21+. At the time of our filing for Chapter 7, I asked her if she would like to go ahead and get a dissolution. She grinned at me and told me the judge would give her half of my retirement. Is that true, or does the fact she has left me for that long override that “default” ruling?(if there is such a thing). I was laid off over a year ago from a company I was employed with for 25 years. She still has a job.

Asked on June 3, 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.

The portion of your retirement which represents earnings during marriage would be community property and your wife would receive one half.

The portion of your retirement which represents earnings before marriage or after the marriage ends is your separate property and your wife has no claim to that portion of your retirement.  If you are separated with no intent to reunite, your income after separation is your separate property and your wife would have no claim to that portion of your pension.  Since your wife moved out more than three years ago, you may be able to argue that constitutes separation with no intent to reunite.  As mentioned above, that part of your pension which reperesents your income after separation is your separate property, and your wife has no claim.

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


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