Dividing Retirement Benefits Upon Divorce

Retirement benefits include:

• pensions,
• deferred compensation accounts,
• 401(k) accounts,
• Individual Retirement Accounts (IRAs), and
• other retirement savings plans. 

Visit the Pension Rights Center for general information about pensions and other types of retirement benefits.

Women going through a divorce can use the guide Divorce and Retirement: How to Take Control of Retirement Benefits Divorce and Retirement from the Women's Institute for a Secure Retirement (WISER) to learn how to protect themselves from losing the retirement assets they are entitled to receive.

It depends on whether contributions to the account were made before or after the date of marriage.

Contributions made before the marriage are the separate property of the spouse who made them. Contributions made during the marriage are the community property of both spouses, regardless of whose name is on the account or which spouse contributed through employment. Some retirement accounts are made up of both community and separate property.

Read Dividing Your Property and Debt in a Divorce for more information on how property is defined.

It depends on the type of retirement. Most retirement savings plans – like 401(k)s – can be divided on divorce no matter the length of the marriage. For these types of plans, the court is not required to split the retirement evenly between the spouses.

Pensions, Social Security spousal benefits, and military retirement have different rules for eligibility and for when you are entitled to receive the funds.

Most contributions to an employer-based retirement program will appear on the spouse’s earnings statement or pay stub. Retirement and 401(k) accounts typically send periodic statements by mail and at the beginning of each year before tax time. Government employees usually have a pension.

Read Discovery in Texas: Investigate and Prepare for Trial to learn how you can get these documents from your spouse during your case.

Many Texas counties have Standing Orders that automatically go into effect when a divorce is filed ordering both parties not to withdraw funds from retirement accounts. If your county doesn’t have standing orders, ask for a Temporary Restraining Order with the same provisions. A party who disobeys these orders risks being held in contempt of court, which can result in jail time. If you are thinking about divorce, gather financial information before you file.

To be eligible, you must have been married 10 years or longer and meet other requirements.

Social Security Spousal Benefits are based on your spouse’s work history. The amount of spousal benefits may depend on the social security benefits you’ll receive based on your own work history. Contact your local Social Security Office or visit the Social Security Administration website for more information.

Spousal benefits from military retirement are based on how long your spouse was in the service while you were married. If eligible, you can receive payments directly from the service member’s retired pay. For information, read the FAQ from the Defense Finance and Accounting Service.

There are a few options for you to keep your retirement benefits.

First, you and your spouse can agree that each of you will keep the retirement accounts under your own name and not divide them.

Or, you can "cash out" your spouse’s share as part of the divorce settlement.

Another option is to agree to exchange community property equal to the value of your spouse’s share of retirement. For example, assume that your employer-based 401(k) account has a balance of $10,000 accumulated during the marriage. You and your spouse purchased a truck now valued at $10,000. You exchange your share of the truck ($5,000) for your spouse’s share of the 401(k) account ($5,000).

Note: Retirement savings plans like 401(k)s are valued as of the date of divorce; similarly, the value of the truck is its fair market value at the time of divorce, not the purchase price.

In most cases, you’ll need a court order called Qualified Domestic Relations Order (QDRO). 

A QDRO is an order signed by the judge, separate from your divorce decree, that directs your former spouse’s employer to divide the retirement benefits according to the decree. If you did not get a QDRO when your decree was signed, Texas law allows you to go back to the court later to get your QDRO signed.

For more about QDROs, talk to a lawyer. If you need help finding a lawyer, you can: 

• Use our Legal Help Directory to search for a lawyer referral service, legal aid office, or self-help center in your area. 

• Check our Legal Events and Clinics page for free legal clinics in your area. 

• Use Ask A Question to chat online with a lawyer or law student.