If myhusband and I are separated and he is drawing out his retirement pension, am I entitled to any of this money?

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If myhusband and I are separated and he is drawing out his retirement pension, am I entitled to any of this money?

Asked on November 23, 2011 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 such as CA, community property is property acquired during marriage including 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.  This includes income before marriage or after the marriage ends.  If you are separated with no intent to reunite, income after separation is separate property of a spouse.  The other spouse has no claim to the separate property of the other spouse.

That portion of your husband's retirement pension which represents income during marriage is community property.  You would have a one half interest in that portion of the pension.  The portion of the pension which represents income after separation with no intent to reunite (after the marriage ends) is your husband's separate property and you would not have any claim to that separate property income.

For example, let's say you were married 20 years and were divorced.  Your husband continued working another 25 years before retiring and receiving his pension.

That portion of the pension which represents income earned during the twenty years of your marriage is community property and you would have a one half interest in it.

That portion of the pension which represents income earned during the twenty-five years after your divorce is your husband's separate property and you would have no claim to that portion of the pension.


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