Am I entitled to my spouse’s retirement plan after we divorce?

A Texas divorce court judge generally divides property equally between you and your spouse. You may receive half of the value of your ex-spouse’s 401(k), IRA or pension plan if contributions made to it occurred during your marriage. 

Because Texas is a community property state, any assets or property acquired during your marriage belongs to both spouses. This includes retirement plans, which individuals over the age of 50 may consider carefully when divorcing. If over 50, you may need some additional cash while transitioning to a single-income household. 

To obtain your share of a retirement plan, your spouse must first request a qualified domestic relations order from his or her employer. As reported by Kiplinger magazine, a QDRO is an order to receive a portion of the fund’s value during a divorce. The payout could result in a lump sum cash payment or a percentage based on the individual fund’s administrative rules. Some spouses, however, may need to pay tax on any proceeds received. 

Can I also request alimony or financial support? 

Child support and alimony issues may require some additional negotiation with a soon-to-be ex-spouse when you request a payout from his or her retirement fund. Depending on the amount you receive from a retirement plan, it could increase or reduce the financial support that the court may order your ex-spouse to provide. 

Are all assets divided in half? 

Texas laws make an exception to dividing property in half when a written agreement demonstrates that you and your spouse made other plans. If you decided to split assets or a retirement fund in a different manner, the divorce court may uphold that arrangement. 

FindLaw Network
Heidi L. Heinrich
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