If my husband and I are both seniors and we divorce, would I be entitled to 50% of his pension?

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If my husband and I are both seniors and we divorce, would I be entitled to 50% of his pension?

We live on Social Security and his pension.

Asked on May 7, 2012 under Family Law, Florida

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.

As for your husband's pension, the portion of the pension that represents income during marriage would be community property and you would be entitled to half of the pension for the years that you were married.  That part of the pension that represents income before your marriage is your husband's separate property and you would not have any claim to that portion of the pension.

For example, if your husband's pension is based on 25 years of employment, but you and your husband were married 20 of those 25 years, you would receive one half of the pension representing earnings during the twenty years of your marriage.  The other five years of the pension when you were not married to your husband, would be his separate property because it represents income before marriage, and you would not have any claim to that separate property portion of the pension.

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


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