Albany Family Law Blog

Can my spouse get half of my retirement benefits if I divorce?

Posted by Joanne P. Monagan, Esq. | Apr 16, 2020 | 0 Comments

When it comes to dividing assets in a divorce, some assets might be of particular concern. Your pension and 401(k) are significant financial assets that you probably want to hold onto in their entirety. However, these assets are marital property and must be divided during your divorce.

New York is an equitable division state, meaning that a judge will typically divide your assets as fairly as possible after considering a variety of socioeconomic factors. This process does not guarantee an equal 50/50 division.

When it comes to dividing your retirement benefits, there are two general options:

  • You agree on a division. If you don't want a judge to determine how much of your retirement goes to your spouse, consult with your spouse first. You may be able to come to an agreeable division in which you may still be able to hold onto a higher percentage of the assets than your spouse. You should also check if your spouse has retirement benefits as well – if their benefits have a similar value to yours, then you can simply call it even as it is and streamline the whole process.
  • You swap assets of equal value. An equal value exchange is an ideal way to keep your retirement benefits out of your spouse's hands. You may offer them your home in exchange or some other significant marital asset that is of similar value.

If you can't reach an agreeable solution with your spouse, your spouse can file a Qualified Domestic Relations Order (QDRO). This order will allow your employer or retirement administrator to move half of your benefits to your spouse's account.

Since retirement benefits are marital assets, you will have to divide them with your spouse. If you're worried about just how much you'll have to hand over, you should consult with a knowledgeable family law attorney who can help you with the process and find a satisfactory resolution for both of you.

About the Author

Joanne P. Monagan, Esq.

Managing Attorney


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