Sharon, PA asked in Divorce and Family Law for Pennsylvania

Q: What part of my retirement is my ex entitled to in Pennsylvania and what can I do protect myself from losing it?

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2 Lawyer Answers
Karen  Ulmer
Karen Ulmer pro label Lawyers, want to be a Justia Connect Pro too? Learn more ›
  • Langhorne, PA
  • Licensed in Pennsylvania

A: Retirement accounts are marital to the extent that the benefits accumulated during the marriage. Anything prior and anything subsequent are not marital, however, you will need to prove what you had when you got married to have that portion excluded. Like all marital assets, you can expect that your spouse will get upwards of 50% or more of retirement depending on your incomes and other factors. You will need to document what you had at the time of marriage and what you put in after the marriage was over in order to back that out. Sometimes you can swap other assets for the retirement if you really want to keep the retirement but there will need to be other assets to give your spouse in exchange.

Peter Christopher Lomtevas
Peter Christopher Lomtevas pro label Lawyers, want to be a Justia Connect Pro too? Learn more ›
  • Schenectady, NY
  • Licensed in Pennsylvania

A: The law in Pennsylvania regarding the distribution of marital property is not a knife's edge split of everything. The law is "equitable distribution" of the marital estate which means a fair distribution of the marital estate.

So, the amount on the table for distribution is that portion of one's pension paid into using marital funds over the course of the marriage measured from the date of marriage to the date of the filing of divorce. As an example, a ten year marriage coinciding with a twenty year pension held, then the ex is only able to claim roughly a half of the ten year period's worth of payments. If the marriage is longer than the pay-in period, then roughly half of the pension is available for distribution to the ex.

This does not mean that after a divorce trial, the ex gets anything. There may be other value the ex can get, for example, a home that offsets the value of the pension. There may be antique furniture, rare cars, a boat, a plane, or savings bonds/stock certificates.

As for how a Pennsylvania judge may decide the distribution is an entirely different matter.

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