If you built up your retirement plan during the course of your marriage and are now thinking about or going through a divorce, you may be wondering what happens to the retirement that you’ve built for yourself during the course of your marriage. 

In any divorce, a significant part of the process is dividing the property that the ex-spouses amassed while they were married. Personal property can include cars, homes, assets, and more which will be apportioned between them.

Many couples do not know that retirement funds and pension incentives accumulated during the marriage (which are most likely the most substantial asset a couple has the possibility of having at the time of divorce) are what’s known as marital property.

Retirement funds and pensions are primarily marital property except in rare instances. This means they are just like every other item of personal property subject to division as part of the divorce process.


Marital and Non-Marital Property

To ensure equity in the distribution of retirement funds, Florida laws set clear-cut differences between marital and non-marital property. Assets owned before the marriage are non-marital property or separate property.

Also, anything you earn after a petition for divorce is filed non-marital property.

Example A: John worked towards his pension before he married Lisa. The value of the fraction earned before marriage is non-marital property, which Lisa is not entitled to.

Example B: John worked towards his pension, but he left the job and stopped contributing to it before he married Lisa. All the pension is non-marital property, which Lisa is not entitled to it in a divorce.

The value of your pension at the moment you filed for divorce, excluding pre-marital contributions, is marital property and is divided in a divorce.


How Are Retirement Plans Allotted To Parties In A Divorce?

Unlike community property states where they use the 50-50 rule and divide assets into equal halves between both parties, Florida is an equitable distribution jurisdiction. This means that the metric for the division of property is subject to the Judges’ discretion for what is fair.

A key consideration in the division of marital property is that both parties must be treated fairly walking away from the divorce with a similar amount of marital estate. Equitable distribution is only necessary when divorcing ex-spouses are unable to negotiate property settlement.


Factors Considered In Fair Distribution

The discretion of Judges must be exercised equitably and judiciously. As a result, courts resort to some factors used to divide divorce retirement fund and pension benefits including:

  • Spouses’ Contribution to the Marriage: Courts consider the extent to which each ex-spouse contributed to the procurement of marital property. Courts also consider non-economic contributions to the marriage. For example, if your ex-spouse watched over the home and your kids when you were working to earn the pension, the courts can give him/her extra property.
  • Time Span of the Marriage: The duration of the marriage is notable among the factors unique to each marriage that courts accommodate. The longer the time that you were together, the higher the chance of a 50-50 order.
  • Spouses’ Overall Economic Wherewithal: The financial condition and earning of each ex-spouse will be considered. On a broad basis, Judges also consider the future financial needs of each ex-spouse against their current financial standing.
  • Spouses’ Debt and Liability: So as not to leave any party high and dry, Judges also consider the debts and liabilities of each spouse and how it matches against their current economic power to determine what is a fair share for them.
  • Other Factors Courts Consider Include; Age of each ex-spouse, the liquidity of marital property, prenuptial agreement, the extent of contribution to the education or earning strength of the other spouse, the general state of health of each spouse, spousal alimony responsibility among others.


Marriage Misconduct

It is ordinarily not the business of the court to consider adultery, cruelty, domestic violence, drug abuse, alcoholism and participation in other criminality of any party while making an equitable distribution.

The only exception is when any of the above acts takes a toll on marital earnings. For example, the Judge may award one ex-spouse with surplus property to compensate for the other ex-spouse who amassed gambling debts during the marriage.


Consult An Experienced Orlando Family Law Attorney

It is important that you consult an experienced family law attorney in Florida. An experienced attorney will save you the complexities of retirement benefits division, provide quality representation for you and use their experience to get you the best resolution to your divorce. Frost Law represents clients facing complex divorces, often where children and marital assets are involved like homes, vehicles, retirement funds pension plans. Speak to an experienced family law trial attorney today, call (407) 670-5569 for your free consultation and case review.


Chad Frost
Chad Frost
As a criminal defense attorney, he is proud to handle all kinds of criminal cases and committed to giving his clients the compassionate personal attention and aggressive representation they need to protect their rights and freedoms.