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How long do you have to be married before you are entitled to half your husband's retirement if you get a divorce?

Hampton, VA |

I want to get divorced, but there are a few questions about my husband's retirement plan that I need to know first.

Attorney Answers 3


  1. A couple points to clarify. You won't become "entitled" in the sense that you obtain an enforceable right by virtue of a marriage or passage of time. For example, if you are a government employee and you satisfy the requirements for retirement, then you are entitled to that retirement. However, your spouse does not similarly derive an enforceable right or entitlement to your retirement upon divorce.

    You are eligible to assert a claim beginning the date of marriage. It would be a very small claim early in the marriage. As time goes by, if all goes well with the retirement plan, then the claim will increase.

    Also, you won't get half of the entire retirement. You can get up to half of the marital portion of retirement. For example, if there is $10,000 in the account when you marry and $5000 is added during the marriage, then only the $5000 added during the marriage is subject to division, not the entire $15,000.


  2. I believe that starting out by looking at dividing assets like retirement plans as a prelude to a divorce action is a means to set yourself up for failure. False expectations feed this nation’s divorce industry and you do not want to invest in that industry.

    May I suggest you decide which attorney you want to retain to do your divorce? The absolute worst attorneys are the ones who limit their practice to referrals obtained through bar association referrals or prepaid legal services plans.

    These lawyers are required, as a condition of their status, to maintain malpractice insurance at the minimum level. This means the lawyer is not going to go out on a limb for you. He will go no further than to “settle” your case so as to minimize his exposure to claims of malpractice by you.

    Malpractice will nevertheless grow from your case. Settlements bury important facts. For example, if a parent is truly unfit for a child because of psychological pathology, a settlement will mask that from view by the absence of a forensic evaluation. The lawyer protected his status, but you got screwed out of an important fact in your case.

    Hence the very means used to protect against malpractice yields nothing but malpractice.

    May I also suggest you review the profiles of the judges in your county court.

    The quality of our judiciary is highly mixed. In one courtroom, you’ll find a judge who is a former prosecutor who has no idea about child custody, community property or equitable distribution. These judges tend to leech off of their favorite attorneys drawing all their cues from them. This will cause for you the loss of your home, your child and all contact with your child depending upon those cues.

    In another courtroom, you’ll find a judge who never once practiced law. That judge will yell out to the audience in the courtroom that a particular motion is “stupid”, that this “case cries out for a number”, that “you better settle because I have other cases today”, that a court appointed psychologist is “always right” and a host of other stupid statements. Some of these will eventually learn to award counsel fees to coerce and speed along a settlement.

    In another, you'll find the political hack who grants motions for lawyers who are connected to him.

    In another courtroom, you’ll run into the prior county child protection attorney. He’ll funnel parents into psychiatrists’ offices for psychopharmacological evaluations. He’ll order supervised visitation in order to provide income for outside psychological service providers. He’ll issue ridiculous orders in order to trap a litigant into incarceration for contempt in order to coerce a settlement.

    In yet another courtroom, you’ll find a former divorce lawyer who knows the law.

    After you have dug around for these two bits of information, then you need to determine how much you are prepared to lose once you enter into a divorce courtroom. For that, you’ll need the advice of a lawyer you paid for and one you trust.

    Good luck.


  3. You are able to receive AT MOST fifty percent of the marital portion of the retirement (that part of earned while you were married). Courts can award less than that if the circumstances warrant it.

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