Yes. The court must take into account all marital property and make an equitable division. Pensions and IRA's earned during the marriage are marital property.
Often, in the settlement of a divorce case, the smaller retirement benefits will be an offset against the larger benefits and both parties divide the net amount. Or there could be a buy out of the net benefits by the spouse with the larger amounts. In some cases, the offset occurs with other property. There are many variations in the division of property.
The information provided here should not be construed to be formal legal advice. The provision of this general advice does not create a lawyer-client relationship. Persons with legal questions are encouraged to seek independent counsel for advice regarding their individual legal issues.
All property acquired during a marriage is marital. Pension sharing goes both ways, meaning your spouse would also have to share part of his pension with you. This is not written on stone, however, and an agreement can be made that each of you waives any claim to certain property of the other. If you have not yet sought the advice of a family law attorney, you should do so ASAP.
He has a right to the marital portion. However, during the divorce assets are equitably divided.
You can always negotiate.
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You BOTH have to share the marital portion only of your pension! 401k, IRS's. the marital portion is the portion earned during the marriage. If his marital portion is worth more than your than you can each keep the ones you have but he will have to transfer a portion of his to you to make it equitable. That is with a 50/50 split. Transferring his to you would be done with a Qualified Domestic Relations Order or commonly referred to as a QDRO. you must have a lawyer work with you on theses matters.
It is important to transfer the funds properly so as to avoid any taxes and penalties due to the transfer. This is called a rollover. So his funds can be rolled over right into yours.
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