SOUTHEAST TENNESSEE LEGAL SERVICES
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SOUTHEAST TENNESSEE LEGAL SERVICES
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Answers from AARP How will my divorce affect my pension benefits?
My spouse and I are getting a divorce and cannot agree on how to divide our property. How will the court divide our property?Courts have the authority to equitably distribute marital property between spouses without regard to marital misconduct. Equitably does not necessarily mean equally. "Marital property" means all property either of you acquired during your marriage. The following property is not marital property:
It does not matter whose name is on the title. All property is marital property that does not fall into one of the above exceptions. Pension and retirement benefits are marital property. Several factors are considered in dividing property equitably, including
a party’s contribution to the value of marital or non-marital property, including a contribution as a homemaker. My spouse and I are getting a divorce. Is it true that I must be totally unable to support myself in order to receive alimony?No, the court considers many factors in deciding to award alimony (referred to as "maintenance" in Tennessee). Among these are:
The general policy behind the award of maintenance is to help a dependent spouse become financially independent and to help the recipient maintain a standard of living similar to that established during the marriage. The court does not consider marital misconduct in determining whether a spouse should get maintenance. Maintenance ends:
Generally, a court ordered maintenance award can be modified if circumstances change. However, it cannot be changed if the maintenance provision is set forth in the separation agreement and the agreement does not provide for modification. How will my divorce affect my pension benefits?Social Security A divorced spouse may receive Social Security retirement or survivor’s benefits on the record of a former spouse if he or she was married to the worker for at least ten years before a final divorce. However, the law requires that the divorced spouse who applies for retirement benefits be at least 62 years old, currently unmarried and not entitled to higher retirement or disability benefits on his or her own record. If the divorced spouse remarries, entitlement to these benefits is lost. A divorced widow or widower is entitled to survivor’s benefits if he or she is at least 60 years old and has not remarried before age 60. Railroad Retirement A divorced wife is entitled to Tier I benefits under the Railroad Retirement Act under the same circumstances that divorced wives of Social Security covered employees would be eligible for Social Security. Private Pensions The Employee Retirement Income Security Act of 1974 (ERISA) gives spouses and divorced spouses some rights in a worker’s pension plan. This law requires that pension benefits paid at normal retirement age take the form of a joint and survivor annuity. A joint and survivor annuity is a benefit paid during the lifetime of the worker, with a survivor benefit to one other person, usually the spouse. In order for a divorced spouse to qualify for survivor benefits, the marriage must have lasted for at least one year. The Retirement Equity Act of 1984 provided further protections to spouses and former spouses by making it clear that pension benefits are subject to state family law, including divorce law. Practically speaking, this means that a pension is "property" subject to distribution upon divorce according to the guidelines of state law. While federal law generally prohibits assignment or giving away of one’s rights in a pension, it does permit assignment of pension benefits to a former spouse under a Qualified Domestic Relations Order, an order or judgment of a court relating to alimony or marital property rights. The impact of divorce on an individual’s economic status will depend upon a number of factors unique to the individual. If an individual is contemplating divorce, it is very important for the individual to consult with an attorney who can advise the individual specifically about the individual’s rights.
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