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Are retirement accounts protected in divorce?

You’re moving toward divorce and you’re concerned about your financial future. You already know that what you and your spouse own together is subject to division of property. But what about the retirement money that either you or your spouse has been saving? What if one was saving and the other wasn’t?

Absent a prenuptial agreement, retirement accounts are not protected in divorce. But whether the accounts will actually divided and how depends on the circumstances.

Retirement money is considered “property” in divorce and is therefore subject to division. All property owned by either party is technically considered for property division.

To determine how to divide property, the court considers a number of factors: length of the marriage, income, assets, ages, health, and employability of the parties, opportunity for future income, and several other factors.

Although judges are obligated to consider a number of factors, the factor that seems to have the greatest impact on the division of property is the length of the marriage. The longer your marriage, the more likely it is that all retirement money will be included in the “marital pot” for division.

For example, on one end of the spectrum, if you’ve only been married for 6 months and never lived together before the marriage, there’s a strong likelihood that a judge would order that each party keeps his/her retirement savings—both what they had before the marriage and what they accumulated during the marriage.

However, on the other end of the spectrum, if it’s a 30 year marriage, the judge is more likely to include all of the retirement money for division, even if a portion of it was accumulated before the marriage.

In analyzing the length of the marriage, judges can consider if the parties’ financial relationship began before the marriage. So if the parties lived together for a significant period of time before the marriage, that increases the likelihood that a judge will include more property—including pre-marital retirement.

There are other significant factors in property division. And judges have wide discretion in how much weight to give each one. But length of the marriage seems to have a significant impact on the retirement division analysis.

Without a prenuptial agreement, retirement accounts are not protected in divorce. What exactly is included for division and how it’s divided, depends on a number of factors, including length of the marriage. As the length of the marriage increases, so too does the likelihood that all retirement accounts owned by either party will be included for division.

If you have any questions about retirement accounts in divorce or any other divorce questions, feel free to reach out to us.

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