Can Your Spouse Claim Retirement Benefits in a Divorce?



Potential clients and clients routinely ask whether their spouse has a claim to their retirement benefits or whether they are entitled to any portion of their spouse’s retirement benefits.

Retirement benefits and the division of those retirement benefits are an important topic to address in a divorce, and it is important to note that retirement benefits are considered marital property, subject to equitable division and distribution upon divorce.

Alabama law provides that, unless the parties otherwise agree or otherwise provided by federal or state law, the marital estate – subject to equitable division and distribution – includes any interest, whether vested or unvested, either spouse has acquired, received, accumulated, or earned during the marriage in any and all individual, joint, or group retirement benefits. Such retirement benefits include but are not limited to retirement plans, retirement accounts, pensions, profit-sharing plans, savings plans, annuities, and the like. Common retirement benefits included are IRAs, 401(k) plans, and Thrift Savings Plans.

This is a change from prior law by eliminating the requirement that the marriage lasts at least 10 years in order for retirement benefits to be included in the marital estate and subject to equitable division and further includes non-vested, as well as vested, retirement benefits in the marital estate.