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What happens to my retirement account if I get divorced?

Oct 23, 2018 | Firm News

As the divorce rate of baby boomers, otherwise known as “gray divorce,” continues to climb, divorce questions regarding retirement account savings are being added to a conversation that previous revolved around child custody.

There are some situations in which the retirement accounts you have worked to build may be separated between you and your ex-spouse if you choose to divorce. Here are a few helpful guidelines to help layout your expectations.

Social security

Generally, social security accounts belong solely to the single person who owns it. However, for those whose marriages end at an older age, it’s reasonable to assume that your ex-spouse may have planned to rely on your social security retirement or disability funds to aid living expenses.

Thus, those who are 62 years or older may be eligible to receive half of their ex-spouse’s social security retirement or disability benefits. If your ex-spouse meets this age requirement, is unmarried now and the marriage lasted at least ten years, they may collect up to half of your social security funds.


401K accounts can be subject to division in a gray divorce. However, the court must make the decision to include this asset along with other marital property and outline how it should be split in the divorce decree.

From there, an attorney must draft a Qualified Domestic Relations Order (QDRO) and get it approved in order for the federal government to designate the payments to the other spouse.

Other savings accounts

West Virginia law divides assets depending on when and how the asset was obtained.

Assets obtained during the marriage are considered “marital” property and are subject to division. Funds, gifts and property either obtained before the marriage, through inheritance or as a gift will not be divided between ex-spouses. For joint savings accounts, if there are funds that were added to the account before the marriage or as a gift or inheritance, these will be exempt from the division of the rest of the account.

Choosing how these funds are handled will involve negotiating the division of interest and other benefits earned on the accounts as well. West Virginia courts should attempt to split assets equitably. That means that a spouse who earns more may be awarded more assets, rather than getting an equal half.

To learn more about how a divorce may affect your finances, talk to a Family Law attorney with experience in the field. A lawyer can help you set expectations and negotiate the best outcome to help secure your assets for the future.