Can she get half of my pension even if it’s the only income I have?

Divorce Attorney Angela FoyQuestion:

My question has to do with alimony and marital property division. My wife is seeking half of my pension in our divorce. It is the only income I receive due to my disability.

Is she entitled to half of my retirement benefits even though it’s the only income I have?

Answer:

Your question raises aspects of two issues, both maintenance and property division, because your pension is currently in payout status.

Maintenance involves a determination and analysis of each of your incomes. In theory, a maintenance order, whether the result of a stipulation or contested hearing, is based on two main objectives: fairness and support. The court is required to consider the fairness of the order with respect to the financial situations of both parties.

The support objective of maintenance recognizes the obligation to support a spouse in a manner in which that spouse was accustomed during the marriage. Your disability affects your ability to increase earnings, while her earnings are not as limited. The biggest factor for the court to consider in addition to your disability is the difference between your earnings.

The other issue that your retirement affects is property division. The statutory presumption is that all property acquired prior to or during the marriage is divided equally. This presumption also applies to your pension, although the court may deviate from an equal division after considering a number of factors, including the length of the marriage; the age and physical and emotional health of the parties; or other factors the court determines to be relevant.

In most divorces involving parties with pensions, the pension may be the largest asset subject to division. The other spouse can waive any claim if her interest is offset with another asset.

Whether it should be divided, and if it should then how it should be divided are all contingent on many factors, including your time working and whether all of that time or part of that time was while you were married. Another significant factor is whether support is needed for one of you, in the form of maintenance, and each of your current and future earning capacities.

You should contact an attorney who is licensed in your state to further discuss the specifics of your situation. Cordell & Cordell does represent clients nationwide. Thank you for submitting your question.

 

Angela Foy is an Associate Attorney in the Milwaukee, Wisc., office of Cordell & Cordell where her primary practice is exclusively in the area of domestic relations. Ms. Foy is licensed to practice in the state of Wisconsin, the U.S. District Court, and the Eastern District of Wisconsin. 

 Ms. Foy received her Bachelor’s and Master’s Degrees from the University of Notre Dame. She then continued on to receive her Juris Doctor from Marquette University.

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