Divorce

NOTE: THE FIRST PART OF THIS IS NY - SPECIFIC – ONLY INCLUDE IF NY. 
Under NY law, the property of a couple is classified into two types,
separate property and marital property. You will generally be able to keep
whatever is determined to be your “separate property.” Your husband
will generally be able to keep whatever is determined to be his
“separate property.” Separate property (or “nonmarital
property”) is usually anything that either you or your spouse brought
into the marriage and kept separate during the marriage. Also, some gifts
that the person receives during your marriage may be considered separate
property, such as an inheritance. On the other hand, most property, money,
and debts that either spouse acquires during a marriage is not considered
to be individual property, no matter who paid for it or whose name it’s in.
Instead, most things acquired during the marriage (and, in some cases,
things that were bought before the marriage but were used in the marriage)
become “marital” property. A court will divide up marital
property in a divorce according to what is an “equitable
distribution.” You can read more about what factors a NY court will
look at in determining what type of property things are and then what would
be an “equitable distribution,” by going to this part of our
website: http://www.womenslaw.org/laws_state_type.php.

NOTE: THIS PART IS GENERAL FOR ALL STATES:
Unfortunately, I am not an expert in this area of law. I did some
research but I cannot be certain if your retirement savings will be
classified as marital property or will be classified as separate property.
The results appear to indicate that the portion of a retirement plan
savings which are accrued while married may be considered marital property
that would be subject to equitable distribution between the two of you if your state uses “equitable distribution” as the way to divide up marital property.  However, I would strongly recommend that you check with a divorce lawyer to discuss this issue.

NOTE: THIS PARAGRAPH IS NY-SPECIFIC - ONLY INCLUDE IF NY
I found a website discussing the implications of divorce for employer
retirement saving plans. Please note that this website is not part of
WomensLaw and I cannot be certain if it is fully accurate and helpful.
This NY state website (http://www.osc.state.ny.us/retire/members/dro_benefits.htm)
discusses the treatment of retirement plans and says that they are
considered marital property.

NOTE: THIS PARAGRAPH IS FOR ALL STATES:
This US Department of Labor website which has
an excellent online publication about this subject, here: http://www.dol.gov/ebsa/publications/qdros.html.
It indicates that “qualified plans”, such as 401(k)s and
pensions, have specific rules for divorce. According to this website, in
order for your [ex]husband to get payments out of your retirement savings a
Qualified Domestic Relations Order (“QDRO”) must be filed with
the administrator of the benefits. A QDRO is the legal document, issued by
a state court, that meets certain federal requirements, that will allow the
benefits to be paid to your [ex]husband. The QDRO can be the divorce
decree, not necessarily a separate document, as long as it meets all of the
requirements for a QDRO. Therefore, generally the first step for your
husband if he wants to get your retirement savings would be to send the
divorce decree to your employer or the retirement plan’s administrator.

Divorce is very complicated, especially when children or money is
involved. If you need help finding a lawyer, you can check out our website
here: LINK
You may also want to try contacting one of these national organizations
that focus on helping people with their divorce questions: LINK.
When choosing a lawyer you may want to keep the following questions in
mind: http://www.ncadv.org/protectyourself/LegalGuidelines.php.