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What Happens to My Retirement Account After a Divorce?


Among the most disputed aspects of a divorce is determining how the assets would be divided between the spouses. While dividing real estate or savings and checking accounts can be easy, determining which spouse and how much a spouse gets from a retirement account is not easy.

While your San Antonio divorce attorney will do everything they can to ensure that you get what you are entitled to, there are basic rules that judges apply when determining how to divide retirement accounts between divorcing couples.

How Retirement Accounts Are Divided in a Texas Divorce

Many people mistakenly believe that their retirement accounts are solely theirs. But if the assets in those accounts were contributed to them during the marriage, those retirement accounts will be considered marital property. This means that both spouses are entitled to those accounts when they divorce.

Texas is one of the few community property states. This means that assets (with some exceptions) that couples acquire while married are owned by both spouses equally.

Is My Spouse Entitled to My Retirement Account?

The answer to this will depend on various factors. You will need to provide information on the retirement account, such as:

  • Who opened the retirement account?
  • When you acquired it. Was it before or during your marriage?
  • Was marital income deposited in the retirement account?

If you opened the retirement account during your marriage and contributed martial funds to it, the court will consider the account marital property, meaning that your spouse is entitled to a fair or equal share of the account.

If you opened the retirement account before you got married, but you deposited marital funds to it, the court may consider it separate property. However, your spouse may have an interest in the account’s marital portion because the court would consider all premarital contributions as your separate property.

If you opened your retirement account before marriage, and no marital funds were deposited to it, the court would consider your retirement account as separate property, which means that your spouse will not be entitled to it. While state laws dictate how much of your retirement funds your spouse may receive, you can also consider negotiating an agreement with your spouse.

You still need to get a court order to divide the retirement account; you and your spouse can agree on how the account should be divided, provided that a judge agrees. Unless it’s impossible for you and your spouse to work together, coming up with an agreement for property division with guidance from your San Antonio divorce attorney can save you and your spouse stress, money, and time during your divorce.

Get Legal Advice From an Experienced San Antonio Divorce Attorney Now

The rules courts use to divide and transfer retirement accounts and other assets are complicated. Our San Antonio divorce attorney at Hoelscher Gebbia Cepeda PLLC can explain the options available to you and help protect your best interests during this difficult time. To set up your case evaluation with our San Antonio divorce attorney, please call 210-222-9132 or send us an online message.