Giving your spouse part of your pension can be one of the longest-lasting consequences that tie you together. Many future divorcees place retirement benefits near the top of their list of divorce questions. Can my ex-wife claim my pension years after divorce in Texas? Is my ex-husband entitled to part of my IRA? Even if he has his own retirement? Can my ex-wife claim my military pension years after divorce?

However you ask the question, knowing what could happen to your retirement benefits when you divorce is often a primary concern. Contact The Larson Law Office for help identifying how much your spouse might be able to get and what you can do to protect your assets. Through direct, honest, and open communication, we can make a plan to help you move forward without giving up more than is necessary.

Property Division in Texas Divorce

Before you get married, you primarily own property individually. After you marry, your spouse is generally entitled to an equal or fair share of everything earned or otherwise acquired during the marriage, which is presumed to be a 50% division.

Defining Property

Property spouses share is community property, which may include:

Salary, wages, tips, bonuses, or other income;
Pensions, 401(K)s, IRAs, or other retirement benefits;
Real estate;
Stocks, shares, or other investments; and
Financial accounts.

The exception is separate property, which includes property a spouse acquired:

Before marriage or after separation,
Through gift or inheritance to them alone, or
From a personal injury lawsuit, depending on how the damages are characterized.

You can also set assets aside as separate property in a premarital (prenuptial) or marital agreement. A spouse may also request reimbursement for certain contributions they make to your separate property, such as mortgage and tax payments on a separate property house.

Debt

Debts, like property, can be community or separate. Debts either spouse incurs before the marriage or after separation are typically separate, while those incurred during the marriage are typically community if incurred for necessities.

Dividing Property

When you divide your community property, the law should guide you. So, how does Texas law divide marital property? A family court divides property in a just and right way, considering the rights of each spouse and the needs of any children.

What is just and right involves factors like both spouses’:

Earning capacities and qualifications,
Contributions to the home and marriage,
Separate property and debt,
Childcare obligations, and
Relative ages and health.

A court might also consider:

How long you have been married,
The tax consequences,
Whether a spouse purposefully decreased the value of any assets, and
Whether a spouse hid or attempted to hide assets.

Regardless, if you and your spouse agree to a specific division, you can usually split your community property however you want under your agreement. If you struggle to agree after negotiation, you can attend mediation. Mediation is a cooperative, collaborative process led by a neutral mediator wherein both sides express their concerns and attempt to reach a mutually agreeable compromise solution.

Can My Spouse Claim My Pension During Divorce?

Courts left to divide the community estate in a just and right way often divide pensions. They may be especially likely to divide retirement benefits when:

You were married for a long time;
One spouse does not have retirement benefits or has substantially less than the other; or
One spouse maintained the home, including caring for children, while the other worked outside of the home.

The amount that your spouse can claim as theirs depends on when and how long you were married. Your spouse typically has no right to property you earn before marriage or after separation. A judge may order that a specific percentage of your retirement benefits go to your spouse. They arrive at this number by dividing the percentage of time when you were married from your total time earning those benefits.

Can My Ex-Wife Claim My Pension Years After Divorce in Texas?

A court typically cannot change the property distribution provisions of a finalized divorce decree. So, the answer is no—unless she was given rights to your pension in your divorce decree.

Yet, your spouse can still enforce their right to your pension benefits, even if you have been divorced for decades. And if your spouse received rights to your pension but the court did not create a necessary order to make the right enforceable—called a qualified domestic relations order (QDRO)—your spouse may go to court later on to rectify this omission.

While this process may make it appear that your spouse is getting new rights to your retirement benefits, those rights are limited. They must be rooted in your divorce decree and apply to the time you were married.

Can My Ex-Wife Claim My Military Pension Years After Divorce?

Military divorces tend to be a bit more complex, but essentially, if you were in the military while married, your spouse might be entitled to a portion of your military pension. The basic rule is referred to as the 10/10 rule. It states that if you were married for at least 10 years and you were in the military for at least 10 years while married, then the government will distribute your ex-spouse’s portion of your retirement benefits directly to your ex. If you were married for less than that, the judge in your divorce could still order that your military pension be split, but the retiree would then be responsible for distributing the money to their former spouse when the time comes. Since military divorces can be more complex, it’s best to consult an attorney who has experience with such matters before proceeding.

Speak with a Texas Divorce Lawyer

Can your ex-wife claim your pension years after divorce? Not exactly, but your former spouse may have a right to your pension even if you have been divorced for many years.

Sources:

Separate Property: https://statutes.capitol.texas.gov/Docs/FA/htm/FA.3.htm#3.001

Community Property: https://statutes.capitol.texas.gov/Docs/FA/htm/FA.3.htm#3.002

Property Division: https://statutes.capitol.texas.gov/Docs/FA/htm/FA.7.htm#7.001

Debt: https://statutes.capitol.texas.gov/Docs/FA/htm/FA.3.htm#3.201

Can Your Ex-Wife Claim Your Pension Post-Divorce in Texas?