Will I Be Able to get Half My Husbands Retirement in our Divorce
Will I be able to get half of my husband’s retirement account in my divorce? There are many things that must be divided in the event of a Shelby County divorce. Many people think of the marital home, the cars, the vacation homes and many other assets. One martial asset that many people do not take into consideration is the retirement accounts or other retirement benefits that each spouse may have.
In many cases, the marital home is the most valuable asset that the couple shares. However, there are many cases where the retirement accounts may be the most valuable asset in the marriage. This is especially true when looking at older couple divorces where they have been married for a long time and contributing funds to a retirement account over the course of their lifetime.
There are a number of different kinds of retirement accounts that a spouse could have such as: a 401(k); a traditional IRA; a Roth IRA; a SE IRA; profit-sharing plans; and defined benefit plans. Your ability to get half of your husband’s retirement may depend largely on which type of retirement account your husband has. First you need to determine whether your husband’s retirement account is considered to be marital property or separate property. If your husband can prove that the retirement account is separate property, then you may not be able to get half of the retirement account.
However, if the retirement account is considered to be marital property, then there is a good chance that the court will treat the property like any other asset in an Alabama uncontested divorce and distribute the funds from the account equally. If your husband had the retirement account prior to the marriage and added a considerable amount to it before the marriage then it may be likely that the court looks at the account as if it is separate property, and in this case it is unlikely that you will be entitled to half of the account.
Under Alabama Code § 30-2-51, the judge in your Calhoun County divorce has discretion to order a spouse a certain amount of the other spouse’s estate, including retirement funds, after taking into consideration the value of the account and the condition of the spouse’s family. However, under the statute, the judge may not take into consideration any retirement account acquired prior to the marriage of the two parties.
Therefore you may be entitled to half of your husband’s retirement account if the account is considered to be marital property. Under Alabama law, in order to receive the funds in a contested divorce in Bessemer you must have been married for at least ten years, and the account must not be maximized prior to the wedding. If you have been married for at least ten years and the account was not maximized prior to the marriage, then it is likely that you are entitled to half of your husband’s retirement account.
Attorney Steven A. Harris regularly blogs in the areas of family law, bankruptcy, probate, and real estate closings on this website. Mr. Harris tries to provide informative information to the public in easily digestible formats. Hopefully you enjoyed this article and feel free to supply feedback. We appreciate our readers & love to hear from you!
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