A divorce can be jarring for anyone, no matter the stage at which one finds oneself in their life. It can be tough to deal with if you and your spouse have unequal pay or if your split happens later in life, especially if one of you is counting on retirement to support you in the future.

How common are divorces and pensions?

A Centers for Disease Control and Prevention (CDC) report published in 2002 captured how 20% of married couples divorced within five years of walking down the aisle. At least 33% of married couples split up within 10 years. Whereas 35% of employees had pensions in the 1990s, only 18% of working adults had them in 2002. It’s unclear how much has changed in the past 18 years since the CDC compiled that data.

What right do I have to my spouse’s pension?

One question that spouses often ask is what becomes of their pension once they divorce. Existing law views any earnings that you or your spouse make during the marriage as marital assets. While a judge presiding over your case may consider any funds deposited into an individual retirement account (IRA) and 401(k) before your marriage as separate property, they’re likely to classify one set up during the union as a marital asset.

You may not have to worry about a judge dividing a pension down the middle even if state law classifies it as marital property. The court will first want to know what type of pension you have and more details about how you funded it before rendering any decisions about your retirement account.

Keep in mind that government or military pensions may be subject to unique regulations or rules that affect their division differently than private-sector ones.

How you should handle your pension if you’re facing a divorce

Lawmakers passed the Employee Retirement Security Act of 1974 (ERISA) to, in part, protect pensioners. The Retirement Equity Act of 1984 extended protections to protect spouses in the event of death or divorce.

You may find yourself needing to draft a qualified domestic relations order (QDRO) to gain access to your spouse’s pension. A divorce attorney here in Leesburg can provide guidance in this process, which must occur as you dissolve your Virginia marriage instead of when your spouse is retiring from their job.