WILL MY SPOUSE BE ENTITLED TO SOME OF MY RETIREMENT AFTER OUR DIVORCE?
 WHAT CAN I DO TO PREVENT MY SPOUSE FROM GETTING SOME OF MY RETIREMENT AFTER OUR DIVORCE?
 

BY JOHN K. GRUBB
 Almost all retirement plans fit into one of two categories:  a defined contribution plan or a defined benefit plan.  A defined contribution plan is like a saving account — you and sometimes your employer make contributions to a plan or an  account which you may use for your retirement.  Some examples of defined contribution plans are 401k plans, 403b plans, individual retirement accounts, and Roth IRAs.  A defined benefit plan is one where the employer or union agree that when you reach a certain age, you will receive a monthly stipend.

People argue all the time that since they cannot get their retirement until they retire or since  their retirement benefits are unmatured the Court should not award their spouse a portion of their retirement upon divorce.  However, the Courts look upon retirement benefits, whether defined contribution plans or defined benefit plans, as an asset that was earned during the marriage.  Therefore, the Courts will divide retirement benefits upon divorce.  Since each type or retirement plan is different, Congress passed a law providing that in addition to the Divorce Decree, the Court is to enter a Qualified Domestic Relations Order (QDRO) spelling out how retirement benefits are to be divided.

There are  three ways that you can prevent your spouse from getting a portion of your retirement upon divorce.  First, before you get married you and your dearly beloved can enter into a prenuptial agreement providing that all retirement benefits will remain your separate property.  Secondly, while married, you and your spouse may enter into a post marital agreement, dividing some or all of your marital assets and making arrangements for you to retain all of your retirement benefits.  Finally, as part of a divorce settlement you can buy your spouse out of your retirement benefits.

John K. Grubb

Attorney at Law

4600 Post Oak Place, Suite 301

Houston, Texas  77027

713-877-8800

www.johnkgrubb.com

www.houstonpremarital.com

Bachelor of Business Administration and  Masters of Business Administration from the University of Texas at Austin.  Doctor of Jurisprudence from South Texas College of Law in Houston.
 

Licensed by the Supreme Court of Texas, United States District Court for the Southern District of Texas, and the United States Court of Appeals, Fifth Circuit.   Practiced law in Houston since 1972. 
 

AV Peer Review Rated by Martindale-Hubbell Peer Review Rating as of 2007. 
 

Board Certified, Civil Trial Law, Texas Board of Legal Specialization