Dear Penny: Can My Lazy Husband Take My Pension if We Divorce?

Dear J.,

I’m assuming the “she” is you, Letter Writer. Though I’ll do my best to explain how property division works in divorce, you have two basic options. You can schedule an appointment with a divorce attorney to discuss how your assets would likely be split. Or you can accept that you’re stuck with your husband till death do you part.

Typically, only marital property — property acquired while you were married — gets split during a divorce. Marital property generally can include money you earned, retirement accounts you contributed to, homes and vehicles you purchased, etc. Separate property — assets that you acquired before marriage, plus gifts and inheritances made exclusively to one spouse — typically won’t get divvied up by a judge.

Forty-one states follow equitable distribution rules, which means a judge attempts to divide marital property in a way that’s fair to both spouses. Equitable doesn’t always mean 50/50, though the split is often relatively equal. But in the nine states that are community property states (Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington and Wisconsin), each spouse is presumed to be 50% owner of any marital property.

So yes, your husband would be entitled to at least a portion of your pension, depending on how much of your marriage overlapped with the years you contributed. For example, if you contributed to your employer’s pension for 30 years but were married during only 18 of those years, 60% of the pension would probably be considered marital property while the other 40% would be separate property.

I’m sure an attorney could argue that you deserve a greater share of the home’s equity. But one complicating factor is that when you invest separate property in marital property, the separate property usually becomes marital property. Also, assets are divided as a package. So if you’re determined to keep the home, you’d probably have to make concessions elsewhere.

Splitting assets after 20 years of marriage can get extremely complicated. So you really need to talk to an attorney. Look for one who offers a free consultation. Meeting with an attorney to explore your options isn’t the same as serving your husband with divorce papers tomorrow. Taking this baby step doesn’t obligate you to make any life-changing decisions.

No one gets everything they want in a divorce. But if you split from your husband, a surefire way to waste money is to fight over everything. You can often save money on divorce by being open to compromise. Though you should still meet with an attorney, many couples save substantially by working out a divorce settlement with a third-party mediator instead of going through attorneys.

If you get a divorce, you’re probably not going to walk away feeling like you got a fair shake. You contributed more financially throughout the marriage, and most divorce settlements are relatively equal. So you’ll need to decide just how badly you want to end this marriage. Sacrificing some of your hard-earned money may be worth it if it buys you a clean slate.

Robin Hartill is a certified financial planner and a senior writer at The Penny Hoarder. Send your tricky money questions to [email protected].