Do I Have to Split My Pension/Retirement Benefits With an Ex-Spouse Who Remarries?

Divorce brings with it a lot of surprises, to say the least. The personal trials and changes that come with divorce are, of course, often quite profound and challenging, but, even aside from the emotional adjustment to new events, Virginia divorce law involves many facets that come as a pleasant surprise or rude awakening, depending upon one’s perspective and situation. One issue that often involves unexpected implications is in the area of retirement and pension benefits, and specifically the issue of remarriage.

Retirement/Pension Payments Are Considered Property, not Spousal Support

In a divorce where one or both spouses is receiving retirement or pension benefits from a job that was held during the marriage – or will receive those payments in the future – a Virginia court may conclude that one spouse receiving the payments should pay a portion of the payments to the other spouse following the divorce, even if they do not become payable for a number of years.

On the surface, making a monthly payment such as this to an ex-spouse can look very much like spousal support (also called alimony), but it is important to distinguish these payments from spousal support. Because the retirement/pension payments were earned (or at least partially earned) during the marriage, a court will consider those payments to be marital property subject to equitable distribution between the spouses.

In other words, because the other spouse was part of the marriage at the time the funds were being earned, a court will look at those benefits the same way it looks like cash that was saved during the marriage or real estate or personal property purchased with wages during the marriage, and equitably distribute those payments between the spouses.

Remarriage Does Not Necessarily End an Ex-Spouse’s Right to Payments

This type of division of retirement/pension payments is thus different from spousal support, which are payments that a court can order (or the parties can agree to) above and beyond the equitable distribution of marital property. The purpose of spousal support generally is to provide a dependent spouse with the financial support to adjust to life without the provision of the other spouse after the marriage has ended.

As a result, many spousal support orders include a provision that says spousal support does not have to be paid once a receiving spouse remarries, the idea being that there is a new spouse in that person’s life to provide for him or her. But remarriage often has less of an effect on the right of a spouse to receive a portion of retirement/pension benefits. This is because, again, the courts look at such payments as property that the receiving spouse was already entitled to as a result of being married to the earning spouse at the time the pension or retirement was being earned.

As with many issues in a Virginia divorce, the spouses have the ability to work together to create a settlement agreement regarding the division of retirement or pension benefits which could involve special provisions relating to marriage. Speak to an experienced Virginia family law attorney to discuss your situation.

Work with Compassionate Virginia Family Law Attorneys

The family law attorneys at Kurylo Gold & Josey, PLC in Fredericksburg are here to help you with all of your questions regarding divorce in Virginia. To schedule a consultation with one of our Virginia family law attorneys, contact Select Law Partners at 540.642.1766.

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Matt Kurylo

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