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If you or your spouse worked for a corporation or government agency for a long time, you are likely to have a pension. These are significant benefits, and you may have given up the possibility to earn more during your working life in exchange for the potential stability of a pension.
However, a divorce might throw that plan into disarray. According to Tennessee law, a pension obtained by you or your spouse during your marriage is considered part of the communal estate. This means that the pension is primarily subject to division in your divorce, whether by a judge or through mediation between you and your spouse. You or your spouse must request that the pension be shared as a communal asset in your Original Petition for Divorce. Additionally, once a portion of the pension has been granted to you in your Divorce Decree, there are requirements that you and your attorney must follow.
Whether you want to protect as much of your own as possible or figure out how to split a plan owned by your spouse, it is best to consult a skilled lawyer on how pensions are divided in a high-asset divorce case. Keep reading to learn how to protect your financial future during your divorce.
It is insufficient to request a portion of your spouse’s pension when they retire years after your divorce is finalized. You must make this request during the divorce in your first divorce petition. It will suffice to simply state that common property must be split.
Once you and your spouse have both retained legal counsel, you and your divorce attorney will be able to negotiate and communicate with each other about the matters that are being discussed. This negotiation will include the pension plan. Negotiations can take place informally between attorneys or directly between you and your spouse. These informal chats take place throughout your divorce and can help both parties understand what is important to the other.
At mediation, formal negotiations take place. Mediation is a process in which you and your spouse choose an impartial third-party attorney to facilitate a discussion session. You and your spouse will likely be in different rooms, with the mediator bouncing back and forth between them to transmit settlement proposals, further negotiate points, and push both parties toward a settlement. In Tennessee, most divorce cases end here rather than going to trial.
At the commencement of your divorce, your attorney will ask you about retirement plans for you and your spouse. An experienced lawyer could send questions to your spouse for more on their retirement plan. You can gain a huge advantage by learning this information. Your attorney can contact the pension plan administrator to determine how an order should be phrased to efficiently transfer control of any portion of the pension granted to you in the divorce.
A Qualified Domestic Relations Order is a separate court order that gives you control over the portion of the pension that was granted to you (QDRO). This order will be filed with the court and delivered to the plan administrator.
Your QDRO must include all the necessary details for the plan administrator to determine the essentials, such as who to pay and when payments should be made. To find out how a pension plan permits payouts, your attorney will need to analyze the plan terms. While some plans allow for a single lump-sum payment, others do not.
It is critical to figure out what your pension plan allows for and tailor your QDRO accordingly. An attorney could help get your QDRO completed, reviewed, and prepared before going to court to finalize your divorce in front of a judge.
A divorce can be a stressful experience. During this time, you may benefit greatly from the guidance of legal counsel. At Yates & Wheland, our attorneys are here to answer your questions and assist you in making the best decisions for you and your family. To schedule a consultation with a legal advocate, call today.