Why Is My Spouse Entitled To Any Of My Retirement In A Texas Divorce?

You worked hard at your job. You saved money from the day you started. Lucky for your – your company had a 401(k) or pension plan match program so that 4% you stashed away for retirement was really 8%.

You were responsibly planning for retirement and felt like you were well on your way to a financially secure retirement. Then your spouse filed for divorce. Now he or she wants you to hand over half of your retirement account.

That doesn’t seem fair. How can that be?

Texas Is A Community Property State

Let’s start with the basics – Texas is a community property state. There is a presumption that everything you and your spouse own at the time of divorce is community property that is subject to a just and right division.

This includes retirement accounts regardless of whether it is a defined benefit plan (i.e. a pension) or a defined contribution plan (i.e. a 401(k).

All community property is subject to a just and right division during your divorce.

But You Started Contributing To Your Retirement Account Before You Were Married

In that case, assuming you also contributed during marriage, the retirement account would be a mix of separate and community property.

The good news is that there are specific methods and formulas for determining what portion is community and what portion is separate property.

The bad news is that this process is complicated and requires substantial documentation.

In this case, the community portion of the retirement account is subject to division but the separate portion is not subject to division in your divorce.

You can learn more about the details of dividing a retirement account here.

The Good News

What’s good for the goose is good for the gander. This means that your spouse’s retirement account is subject to these same issues.

Bryan Willis

Bryan Willis is a divorce lawyer in Tyler, Texas who also represents clients in probate matters.You should not rely on any content on this website as legal advice.
Bryan Willis

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