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What is a wife entitled to as far as 401K/Pension/Retirement when a couple is separating?

Allen Park, MI |

My husband and I are getting a legal separation instead of a divorce for insurance reasons. I am wondering what I may be entitled to for spousal support, and if I have any rights to his retirement/401k/pensions, etc.? My husband has offered $1000 spousal support for 3 years, and that was it.

We have been married for 9 years and have lived together for a total of 11 years. I am 51, he is 40. I quit my job over 6 years ago to be a stay at home wife & mother at my husband’s suggestion. He has an income of over $100,000, I have no income.

We have no large debts, no mortgage, and the cars are all paid for. He pays $650/mo in rent and no utilities. My rent is $850/mo and all utilities. I also have 2 children and 2 dogs. My administrative skills are outdated – coupled with my age and health, I would be lucky to find a position paying minimum wage. I’m currently seeking Social Security Disability.

In regards to “the two dogs,” lol. I am perfectly aware that I am not entitled to any type of support towards them.

Attorney Answers 3


  1. Best answer

    I am sorry that you are going through this. The quick answer is that you are entitled to quite a bit. You are very close to a medium to long term marriage and that would mean you can divide the estate more equally or equitably. It is important to sit with a local divorce attorney and go over some more specifics. The more information you give to your attorney, the stronger arguments you have as to why you should receive more.

    Take care, and I hope that things get better.

    Legal disclaimer: The response given is not intended to create, nor does it create an ongoing duty to respond to questions. The response does not form an attorney-client relationship, nor is it intended to be anything other than the educated opinion of the author. It should not be relied upon as legal advice. The response given is based upon the limited facts provided by the person asking the question. To the extent additional or different facts exist, the response might possibly change. Attorney is licensed to practice law only in the State of Massachusetts. Responses are based solely on Massachusetts law unless stated otherwise.


  2. Michigan is a no-fault equitable divorce state. That means that all marital assets will be divided approximately 50/50. However, only that part of your husbands retirement, 401k, or pension that accrued during your marriage is considered marital property not the total amount. Unfortunately, these accounts may have suffered a loss during the period of the marriage.

    There is no specific spousal support formula in Michigan. Instead, the court will consider several factors including the length of the marriage, the marital lifestyle, the relative age and health of the parties, and the relative earning power of the parties. Based on the limited information you have provided, you are likely to be awarded some amount of spousal support. However, there is no way to say how much.

    Finally, if your husband is the legal father of your children, he will have to pay child support. Michigan has an actual formula for determining child support based on income and the number of overnight visitations each parent has with the children. The formula does not consider each parties' expenses. The formula would not be effected by the fact that you have dogs, which are mere property under Michigan law. Even if you are not actually working, you could be imputed income unless you prove that you have no earning capacity. Typically, the court will impute at least minimum wage.

    If your husband is not the legal father, you should pursue child support form the actual legal father.

    DISCLAIMER: This answer is provided as general information, which may not be appropriate for the specific facts of your particular situation. No attorney-client relationship has been established based on this limited communication. You are advised to consult with an attorney in your jurisdiction before taking any action or inaction that may affect your legal rights. www.hecklerlawoffice.com


  3. First, is there a case filed for Separate Maintenance in Wayne County, or are you getting a legal separation by merely living apart and him contributing to your expenses without court orders? If there is a case pending for either divorce or separate maintenance, the end result will be the same in each case - a division of assets and liabilities.

    If separate maintenance, a judgment will have to be entered at some point. The question is whether his employer views a Judgment of Separate Maintenance the same as a Judgment of Divorce. Many companies today take the position that either type of judgment triggers the benefits a spouse is entitled to otherwise receive, such as health insurance.

    Make sure that you can continue on his insurance as his spouse if a Judgment of Separate Maintenance is entered. Employers don't like to pay additional benefits when the parties are married in name only, since a division of assets and liabilities occurs in a Separate Maintenance case just as in a divorce case - the difference being that you legally remain husband and wife, but truly for the continuation of insurance benefits.

    Your 2 years of living together before marrying don't count. A general rule of thumb is that assets acquired during a marriage are divided equally, and that includes retirement benefits earned only during the marriage (there are circumstances which might entitle you to more than an equal division for the marital period).

    There are obviously health issues involved if you are going to seek SSD benefits. Spousal support depends on a multitude of factors which the court must consider in determining whether spousal support is appropriate and, if so, the amount and duration of the support.

    If you have not already consulted with a family law attorney I would do so right away. What your husband offers now may just turn out to be the starting point and not the finish line. In no way should you allow your husband to dictate what he will pay, since you and I both know the less he pays to you, the more he has for himself. On top of that, whatever child support you receive, in addition to any spousal support, will go to supporting 3 people and your 2 dogs, while the funds he is left with (considerably more than he'll be paying you) are used to support only 1 person - him.

    Consult with an attorney. Please! Good luck.

    Neil M. Colman
    www.divlawyer@gmail.com

    Mr. Colman is licensed to practice law in Michigan. The response herein is not legal advice and does not create an attorney/client relationship. The response is in the form of legal education and is intended to provide general information about the matter within the question. Oftentimes the question does not include significant and important facts and timelines that, if known, could significantly change the reply and make it unsuitable. Mr. Colman strongly advises the questioner to confer with an attorney in your state in order to ensure proper advice is received.

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