When going through a divorce, one should be aware that retirement benefits are property subject to equitable distribution, regardless of who is the titled spouse of the retirement benefits. So, even if you never worked outside of the home or if you worked outside of the home intermittently, you may still have an interest in the retirement benefits of your spouse because retirement benefits that have accrued during the marriage are considered marital property that is subject to equitable distribution.
A non-exhaustive list of retirement benefits include military pensions, Employee Retirement Income Security Act (ERISA) funds, individual retirement arrangements (IRAs), Keogh plans, employee stock ownership plans, 401(k) and 403(b) plans.
Although most spouses have an understanding of the retirement benefits that the other spouse has acquired, it is always recommended that some discovery be exchanged in order to try and gain a full understanding of what retirement benefits existed during the marriage and at the time of the divorce. At a minimum, obtain copies of personal tax returns including all schedules and worksheets as those documents can reveal the existence of retirement benefits. It is wise to obtain copies of the personal tax returns for the last 3-5 years because a review of prior tax returns can show prior distributions and perhaps alert the non-titled spouse to the existence of retirement accounts not previously known.
Keep in mind that next to the marital residence, retirement benefits can be one of the largest marital assets subject to equitable distribution at the time of a divorce. If you have been married for any significant number of years, retirement benefits may have grown to an eye opening amount. Therefore, if your spouse has acquired retirement accounts during the marriage, or you believe your spouse has, you should obtain copies of the personal tax returns and advise your attorney of the possibility of the existence of retirement benefits.
By: Marysol Rosado Thomas, Esq.