Law Office of Joanne Kleiner

Assets

Jun 18

Can You Get Some of Your Ex’s Pension During a Divorce?

Am I Entitled to My Ex-spouse’s Pension?

Roughly 56% of Americans include a pension or other retirement savings plan as part of their financial assets. Dividing up these sorts of assets in a divorce can be tricky. Whether or not you get part of your ex’s pension will depend on a few factors.

Pensions Are a Joint Asset

Even if your spouse was the only one contributing to the pension, part of it might be your property. Your divorce lawyer can argue for you getting a share of the pension because it’s a joint asset. Over the course of the marriage, you and your spouse’s contributions both went into things like producing children, obtaining a career, and getting home goods. Therefore, any funds that you or your partner got during the marriage are called joint marital property. In a divorce, these joint assets are split up. Depending on the way that you either choose to divide assets or a court issues an order, you can get some of a pension.

You Might Not Get Half of the Pension

Pensions are treated just like any other asset division in Pennsylvania. This means that they are split based on what is equitable and fair. Keep in mind that this doesn’t necessarily mean you automatically get half. Instead, the judge will split any pensions based on factors such as:

  • Whether you contributed to the home non-financially, such as helping with child care or cooking
  • How long you have been married
  • How much money you and your spouse each have
  • Your age, health, and ability to work at a job
  • Whether you’ll be a custodial parent or not
  • Your contributions to the pension or other marital property

Additionally, you might have the option of choosing to forgo your share of the pension in exchange for something else. For example, if you want to keep a car, you and your divorce attorney might offer to relinquish your right to the pension and get the vehicle instead.

Reasons That You Might Not Be Entitled to Some of the Pension

In most cases, a pension is part of joint marital property that needs to be considered during asset division. However, there are a few factors that can keep a pension from being a joint asset. In these cases, the answer to who gets the pension in a divorce will be your ex. You won’t be able to ask for part of it or use it while negotiating for certain property.

The most common reason that you won’t get part of the pension is just that your partner earned it before you were married. When your spouse brings a pension into your marriage, it is their personal property that they get to take when they leave. If they started the pension before your marriage but kept contributing after, you’re only entitled to the portion of the pension accrued after your marriage.

Another reason you might not be entitled to a pension is if you signed a prenuptial agreement. Though judges can throw out prenups for certain reasons, this doesn’t happen often. Typically, if you agreed you wouldn’t take any of your ex’s pension, you can’t. A final reason that you might not get their pension is the type of the account. Some pensions, such as those through the military, may follow a separate set of rules. These can potentially bar the pension owner from splitting the account with an ex. If the owner cannot transfer the pension to anyone else, you might not get any money from it.

Ultimately, most couples who divorce will end up splitting pensions or substituting other assets. However, this sort of asset division can be tricky, so it’s a good idea to discuss your unique situation with a divorce lawyer. At the Law Office of Joanne Kleiner, we take pride in helping people achieve satisfactory divorce outcomes. Our team provides the representation you need during this challenging transition. Call 215-886-1266 or fill out our contact form to schedule a consultation today at our Jenkintown office.

Apr 21

You May Claim Social Security Benefits Based on an Ex’s Work Record

Can I Receive Benefits From My Ex’s Work Record?

You can qualify for Social Security benefits based on your most recent ex-spouse’s work record if you meet a few specific qualifying criteria, and the Social Security Administration will only grant you payments on your ex’s earnings record if he or she qualifies for monthly benefits. Whether or not your former spouse is actively receiving benefits has no bearing on your qualifying for benefits under their record.

Eligibility Requirements

To be eligible to receive payouts under your ex-spouse’s income record, the marriage would have had to have lasted for at least 10 years. You would have been divorced for at least two years and had not remarried. Your ex-spouse would need to be a qualifying candidate that can receive Social Security retirement income or disability benefits. To be eligible for the benefits under your divorced spouse’s earned income, you must be at least 62 years of age.

How Are the Benefits Calculated?

The SSA calculates the higher of the two payments, either yours or your former spouse’s. It will issue checks to you based on one calculation, which means you will be getting the rate that pays you the most benefits. You will not be entitled to receive a double payment.

The most that you will be entitled to receive through your former spouse’s earnings record is 50 percent of what he or she would be entitled to at full retirement age, which is currently 67 years old. If the amount that you would receive based on your own record would be greater than that, then your payments would be based on your personal earnings history, and that of your former spouse’s would be ignored for this purpose. You can get the maximum amount available to you if you file for Social Security benefits when you reach full retirement age. It is important to bear in mind that if you end up getting paid based upon your former spouse’s earnings history, the amount that they are entitled to receive will not be affected in any fashion whatsoever.

If you claim earlier, the benefit amount gets reduced. The payouts can increase by 8 percent every year between age 67 and 70 years if you wait until age 70 to collect benefits. If you delay filing your Social Security payouts past age 70, however, your benefits will not increase further.

What Happens if You or Your Former Spouse Remarries?

If your ex-spouse remarries, your eligibility status for receiving benefits under their record is unaffected. However, if you remarry, you no longer qualify for payments based on your ex’s record.

Filing the Claim

Before you file an application to receive benefits that are based on your former spouse’s income record, contact your local Social Security office to determine if you meet the eligibility requirements and to learn how much of a monthly payment it is estimated that you will receive. You will have to provide certain personal information, including your U.S. passport or another form of legal identification, as well as your divorced spouse’s identifying information. This can include your former spouse’s Social Security number, name, and any other information you may still have access to, such as a marriage certificate and a divorce decree. If you cannot locate those latter documents, you will need to provide the approximate dates of those events.

You can consult a divorce lawyer to ensure your documents are in order. The Social Security Administration will use this information to look up your former spouse’s work history.

The earliest you can file your Social Security claim is three months before you turn age 62. You can file an online application through the Social Security Administration website or by calling the SSA toll-free If you need an in-person interview with a Social Security representative, you should make an appointment with your local SSA office.

If you are confused by the process of claiming benefits from your former spouse, having the help of a divorce lawyer can be important. Contact the Law Office of Joanne Kleiner at (215) 866-1266 to learn more about the specifics of your case.

Apr 13

Divorce and Retirement Assets—Protecting Your Rights

Divorce and Retirement Assets—Protecting Your RightsAre you considering filing for divorce or already a party to a divorce proceeding, where the marital estate includes a substantial amount of retirement savings? For many persons involved in divorce proceedings, particularly later in life, retirement assets are one of the largest components of the marital estate, often exceeding the value of the marital home. Frequently, too, they have been accumulated by only one of the parties. So what happens to those assets in a divorce?

As a general rule, all retirement assets accrued, contributions made or values accumulated during a marriage are part of the marital estate and divided according to law. In Pennsylvania, which applies equitable distribution principles to property settlements in divorce cases, the value of retirement funds must be divided equitably, or fairly (but not necessarily equally), between the parties. When determining what is fair, the court may consider a wide range of factors, including:

  • How long the parties were married
  • Whether either party was married before
  • The age and health of the parties
  • The standard of living to which the parties were accustomed

When dividing retirement assets, though, there can be some challenges related to the potential tax consequences. Because retirement contributions are often made in pre-tax dollars, you must be careful, when taking a distribution from an ex-spouse’s 401k or IRA, that you take the right steps to prevent that distribution from becoming taxable income until you want it to be such. Typically, the way that you do that is through a Qualified Domestic Relations Order (QDRO). A QDRO will allow you to rollover the distribution into your own qualified plan without tax penalty.

Contact the Law Office of Joanne E. Kleiner & Associates

For an appointment, contact our office online or call us at 215-886-1266. Let us use our experience, skill, knowledge and resources to help you make informed and effective decisions.

Oct 28, 2012

Division of Marital Property in Pennsylvania (PA)

Dividing marital assets and liabilities in a divorce can be a difficult, challenging process wrought with financial concerns and clouded by emotions. It is helpful to understand the property division laws in Pennsylvania, so that you can make wise, sound decisions as you transition into your next phase of life.

Marital assets are divided equitably in Pennsylvania between the two divorcing spouses. This does not mean that assets, property, and liability are divided evenly. It means that they are divided fairly between both spouses. Additionally, the courts in Pennsylvania will take into consideration the contributions, both financial and otherwise by each of the divorcing partners.

Asset Valuation

Asset valuations, or discerning the value of involved assets, are determined in most situations at the time the asset is being divided.

General Points to Consider With Equitable Division

Length of marriage, degree of education, and age of divorcing spouses are all factors that the courts take into account when determining how to divide property. Additionally, the health, ability to earn a living, and the standard of living that has been the status quo of the marriage are all taken into account.

Pensions

Pensions that will be subject to equitable property division include the amount that was acquired during the time of the marriage up to the separation, in most cases. In some cases, disability pensions may not be considered as marital property.

Gifts and Inheritances

Those gifts and/or inheritances that were given specifically to one spouse during the marriage will generally not be subject ot marital division. Again, it will depend on the specifics of your individual situation.

Sacrifice of Spouse

Here the question becomes whether one spouse did give up a potentially lucrative career to support the other spouse in his or her career efforts or to provide a stable home for the children. If one spouse did sacrifice in manners like these, the sacrifice can potentially be compensated for and monetized upon division of property.

Custodial Parent and Children’s Financial Needs

This issue becomes especially important when a divorce involves a special needs child or a child with serious health problems.

Pre-Nuptial Agreements

Agreements like these could have excluded some assets, including a business, from property division.

Marital Misconduct

Although indeed troubling, misconduct does not impact equitable distribution in Pennsylvania.

Talk Your Situation Over With a Family Law Attorney – Abington, PA

In any divorce proceeding, equitable division can become a difficult, upsetting process. Having an experienced family law attorney who knows how to protect your rights and help you understand consequences of your decisions can make a world of difference in how you proceed with your life after the divorce. Contact the Abington law firm of Joanne E. Kleiner & Associates or call (215) 886-1266 to schedule a consultation with an experienced family law attorney. We represent clients throughout Southwestern PA.