My spouse and i were separated for 8 years. In this time i've accrued a pension. do I have to claim it as Community property?
Family Law Attorney
No there isn't a statute of limitations on community property. You need an attorney to assist you with negotiating an equitable division of your property. Don't go at this alone, it sounds like there could be a lot at stake!
Family Law Attorney
In Texas community property continues to accrue until divorce is rendered. So your spouse has a claim to the pension. Hire a lawyer to represent you.
This answer DOES NOT establish an attorney-client relationship. This answer is based on the limited information provided and is not intended to be conclusive advice. There are likely other factors that might influence or change the advice after a more lengthy consultation.
Family Law Attorney
You have received very good answers already. I will only try to shed some light on the actual division of the pension once you are divorce because I only do work related to the division of retirement assets during a divorce.
1. When a portion of a spouse's pension is given to the other spouse during a divorce, a document known as a QDRO (qualified domestic relations order) will need to be prepared. For the preparation of a QDRO on your behalf, or to review a QDRO that the opposing party may have prepared, I will strongly encourage you to find a QDRO attorney to do it. Preparing this documents for the division of retirement assets in a divorce has to do more with retirement plan law than family law. A divorce attorney will be great to deal with all the divorce issues and to negotiate the division of marital assets (and you should hire one in your area), but when it comes to the enforcement of the division of a retirement asset, a QDRO attorney with experience working with retirement plans could be a better option for you.
2. A lot is lost for the individuals when the QDRO is not properly written. Little words make big differences in the world of QDROs. Also, a lot could be lost if the QDRO is not drafted promptly within a reasonable time after the divorce.
3. You may need a local divorce attorney in the city where the divorce takes place to help you with going to court and represent you on the issues related to the divorce. BUT, for anything that has to do with writing or reviewing a QDRO, I would strongly encourage you to find an attorney, with experience in, and knowledge of, retirement plans and high sophistication with QDROs to do the actual preparation of the QDRO on your behalf (or to review a QDRO prepared by opposing party).
4. You don’t need a local QDRO attorney because most likely federal law regulates the retirement plan to which the QDRO applies so any QDRO attorney in the country can help you. There are a few well-qualified QDRO attorneys across the country. Focus on finding a QDRO attorney, not just a family lawyer to do the actual preparation (or review) of the QDRO. Do your research before hiring.
5. QDROs are NOT neutral documents. You need your own QDRO attorney to draft or review the QDRO prepared by the opposing party’s attorney. You need somebody who will look after your interests. I would be wary of anybody offering to prepare a QDRO for you and the other party, "representing" you both simultaneously.
6. Hiring a QDRO attorney in addition to your divorce attorney does not necessarily mean it will cost you more. QDRO attorneys usually charge a flat fee. The cost is worth it if you hire somebody who is a QDRO attorney with background on retirement plans. The flat fee cost is outweighed by the fact that your benefits will not be lost.
7. The Plan administrator may easily have approved a QDRO that complies with legal requirements regardless of whether the QDRO actually protects your interests. The Plan approval of a QDRO does not mean that the QDRO was properly drafted for your benefit. It only means the QDRO meets a few basic requirements mandated by law.
8. Also see the articles in the link below about the RISKS of using Model QDROs.
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* I am not your lawyer until you and I have signed an Engagement Letter. This and other similar posts by me on the Internet are for informational purposes only. They are not legal advice. Nothing I post online should be taken as legal advice for any individual case or situation. This answer is not intended to create, and receipt or viewing of it does not constitute, an attorney-client relationship. While I do provide my best effort to be accurate, I do not guarantee accuracy given the general nature of these posts, answers and comments.
Veronica A. Silva is an attorney licensed only in Illinois. The use of the Internet and this answer or similar communication with the QDRO Law Center (QLC) or any individual member of QLC does not establish an attorney-client relationship. This answer is for information purposes only and does not constitute legal advice. Confidential or time-sensitive information should not be communicated and/or relied upon via this website. If you have hired an attorney, you must consult with your attorney.