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Proceeding into Divorce aware of risks regarding retirement division, Part Two

Learn about social security benefits and their effect on your divorce

Attorneys are great at courtroom advocacy and knowing the ins and outs of the law. That much should be a baseline for what your attorney can do for you. Those attorneys that set themselves above the pack in terms of their ability to represent you will also teach you about the law, how it applies to your life and will help guide you in a way that benefits you and your family.

A pretty mundane area of the law that can have a huge impact on your life is social security benefits. While it is not likely that social security benefits will be treated as community property in your Texas divorce, there are special rules that apply to social security benefits that set them apart from other areas of the law.

If you were married to your spouse for at least ten years then it’s likely that you would be able to receive benefits under their name based on their working history once you become divorced.

As a result, learning this fact in addition to what your spouse is estimated to receive at retirement age (62 or 67) is crucially important. Depending on what your own retirement benefit would be through Social Security you can make a decision as to whose name you want to claim benefits under later in life: your own or your ex-spouse’s.

What about if you decide to get re-married after your divorce? How will this affect your rights to your ex-spouse’s retirement accounts?

If you intend to take advantage of your government-employed ex-spouse’s pension or retirement benefits you may be waiving your future rights to do so if you intend to get re-married. This is true if your spouse is employed by the federal government and you decide to remarry prior to age 55.

In some instances, spouses can negotiate that retirement benefits can be paid to a spouse via spousal support or spousal maintenance. This is something to keep an eye on in your divorce as your re-marrying will cancel out any spousal support obligations that your spouse has.

Pre-approval on a pension order before the divorce concludes is important

Every pension plan has a plan administrator whose job it is to oversee the running of the pension and to approve and accept the pension order that was signed off on by the judge in your divorce case. Until this step is completed you will not be able to receive any money under the pension that was awarded to you in the property division of your divorce.

Your attorney should be aware of the rules that your spouse’s particular pension plan has in place and the order drafted to grant you access to its funds must follow along with the plan’s desired language. The failure to do so will result in the order being rejected.

This means that your attorney will need to go back to court to seek the judge’s signature on another order that the plan will accept on your behalf. Don’t be surprised if your attorney seeks additional legal fees to do so.

The bright side is that you can avoid an unnecessary delay and the paying of any additional legal fees if your lawyer can contact the plan administrator in advance of the end of your case to see if the order that had been drafted will be accepted.

When it comes to a government or private company’s pension plan, many administrators will take the time to review orders in advance and will tell you whether the proposed order will be acceptable. If the order will be accepted all your attorney has to do is request a judge’s signature and you should be all set.

You should receive an explanation of what happens if your spouse takes certain actions towards his or her retirement accounts

Unfortunately, despite what you negotiate in your Final Decree of Divorce your ex-spouse’s actions during your post-marriage life will have an effect on your ability to take full advantage of whatever benefits are available under the retirement plans.

For instance, your spouse could never actually apply for their own pension benefits. On the other end of the spectrum, your spouse could be injured and never return to work. Would you be protected if a situation like one of these came about? While you cannot predict every future event of your life, it is possible to take into consideration some circumstances and plan accordingly.

For example, you could attempt to negotiate within your Final Decree of Divorce that your spouse will have to pay spousal support to you if he or she were to take any action that adversely affected your ability to collect the pension or retirement benefits awarded to you in your divorce. There are creative solutions to problems like these but you and your attorney have to communicate well and need to be able to be on the same page.

The bottom line: Work together with your attorney

As you can tell, a lot of the work to be done in your divorce is taken on by your attorney. Do not, however, fall into the trap that he or she will do everything for you. You need to take responsibility for some items as it is your life that is affected by the decisions made in your divorce- not your attorney.

Work together with him or her and decide what your responsibilities are. You can start early by collecting information about the retirement benefits available to you.

Questions about retirement in the context of your divorce? Contact the Law Office of Bryan Fagan, PLLC

Our licensed family law attorneys are standing by to take your call and set up a free of charge consultation with you. We can answer your questions and discuss with you your options in a divorce or other family law case. All across southeast Texas, clients of the Law Office of Bryan Fagan, PLLC have had successful experiences with our attorneys acting as their advocates.


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Other Articles you may be interested in:

  1. Proceeding into Divorce aware of risks regarding retirement division
  2. Individual Retirement Accounts (IRAs) and your Divorce: Taxes and General Information
  3. Splitting retirement accounts in a Texas Divorce
  4. Social Security division in a Divorce
  5. Will Social Security Benefits play a substantial role in my Texas Divorce?
  6. Is Social Security Considered Separate Property in a Texas Divorce
  7. Key Elements of a Divorce for persons over the age of 50
  8. 7 Tips for Divorcing After Age 50 in Texas
  9. Divorcing After Age 50 in Texas: What it Can Mean for You and Your Spouse
  10. Texas Divorce and Retirement & Employment Benefits by the Numbers
  11. Is Social Security Considered Separate Property in a Texas Divorce?
  12. Will My Spouse Get Part of My Retirement in Our Texas Divorce?
  13. Husband Loves His Wife and Wants a Divorce in Texas “On Paper” for Strategic Financial Reasons?

Law Office of Bryan Fagan, PLLC | Houston, Texas Divorce Lawyers

The Law Office of Bryan Fagan, PLLC routinely handles matters that affect children and families. If you have questions regarding divorce, it's important to speak with one of our Houston, TX Divorce Lawyers right away to protect your rights.

Our divorce lawyers in Houston TX are skilled at listening to your goals during this trying process and developing a strategy to meet those goals. Contact Law Office of Bryan Fagan, PLLC by calling (281) 810-9760 or submit your contact information in our online form. The Law Office of Bryan Fagan, PLLC handles Divorce cases in Houston, Texas, Cypress, Klein, Humble, Kingwood, Tomball, The Woodlands, Houston, the FM 1960 area, or surrounding areas, including Harris County, Montgomery County, Liberty County, Chambers County, Galveston County, Brazoria County, Fort Bend County and Waller County.


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