Avallone Law Associates

call for a free initial consultation

What happens with your pension when you divorce?

by | Mar 19, 2021 | Family Law |

Divorce is always challenging for couples.  It’s even more so if it happens when you’re fast approaching retirement age.  It may be even more unnerving if there’s a wide gap between what you and your spouse earn.  You may wonder whether you’ll have to turn over a portion of your anticipated pension to your spouse in the divorce settlement.

How common is divorce in the U.S.?

According to data published in 2002 by the Centers for Disease Control and Prevention (CDC), 20% of married couples end their marriages before reaching their 5th anniversary.  Those same statistics show that 33% of all married couples divorce by the 10-year mark.

Are pensions a common issue?

That same CDC data shows that 35% of private-sector workers had pensions in the 1990s.  The latest government statistics show that fewer workers now have them.  Only 18% of private-sector that had pensions in 2002.

Does your spouse have a right to your pension?

The laws in most jurisdictions generally view pensions, Individual Retirement Accounts (IRA) or a 401(k)s as marital assets.  These same laws classify anything spouses possess as either separate or marital property depending on whether they owned or earned it before or after their marriage.

Pennsylvania is an equitable distribution state.  This classification allows judges to use their discretion, based on factors enumerated in the Pennsylvania Divorce Code, to decide what seems like a fair division of assets between spouses. Judges may base their decision on when spouses earned their income and the type of pension they have when dividing it.

Pennsylvania’s equitable distribution doctrine isn’t the only one that applies in such an instance.  Federal legislators signed into law the Retirement Equity Act of 1984 to protect a spouse’s rights to the working spouse’s retirement benefits if the worker died or the couple divorced.  The Employee Retirement Income Security Act of 1974 (ERISA) also protects individuals’ pensions.

Steps to take if you can claim your ex-spouse’s pension

You’ll need to draft a Qualified Domestic Relations Order (QDRO) if you  plan to lay claim to your ex’s pension before your spouse retires.

An attorney can both represent you in divorce negotiations and the QDRO process by drafting legal document to formalize your right to a portion of your former spouse’s retirement benefits.


FindLaw Network
attorney image


Thank you for helping me out of such a deplorable situation. I appreciate all of your help and advice and dedication to your clients.
-Chanda, Philadelphia, PA