The Teacher Retirement System of Texas does not require you to divide your retirement benefits in a divorce or in any other situation for that matter. A family court may order you to do so, however. In addition, you, and your spouse as a function of your community property division settlement may have decided to do this through settlement negotiations. 

Preserving Retirement Benefits in Divorce Agreements

There are circumstances under which you and your spouse may agree to leave the retirement that you have alone and not divide the benefits. For instance, if your spouse also has retirement income or savings of their own the two of you may agree to leave your retirement savings to the side and not divide up those benefits. Moreover, surrendering an asset of equivalent value in the community property division could potentially prevent the division of your benefits. You may choose to give up a piece of real estate that is worth the same amount of money as your retirement to not have to deal with the process involved in dividing up your retirement benefits.

Whatever you end up deciding to do it is wise to have an attorney by your side to help provide you with information and context throughout this process. It may seem like a no-brainer to do something as far as property division is concerned, only to find out that it is far from the best option. Attorneys who practice family law, such as those with the Law Office of Bryan Fagan, can give you up-to-date information on the laws regarding retirement plan division and community property in Texas. Furthermore, you can explore how those laws may impact your specific circumstances. This is the sweet spot when it comes to making informed decisions: understanding the law and most importantly how the law can impact you. 

Protecting Teacher Retirement Benefits in Divorce Decrees

If you do not divide up your teacher retirement system benefits then the Final Decree of Divorce should state this. There should be no confusion about what is happening with your benefits. Work with your attorney to create language for the Final Decree of Divorce that is unequivocal. It should leave nothing to chance as far as what the divorce decree states regarding your retirement benefits earned through years of teaching. 

Whether you should contact TRS after your divorce depends on the circumstances of your case. If your spouse had previously inquired about the required language for a Domestic Relations Order (DRO), TRS may assume that your retirement benefits will be divided. To avoid confusion, it’s advisable for you to reach out to TRS by writing and by phone to inform them that your benefits will remain intact. Additionally, consider sending them a copy of your final decree of divorce as proof that your TRS benefits will not be divided.

Another factor to consider is whether temporary orders in your case forced you to stop contributing to your retirement during the divorce case. During the months of your divorce, you may have restricted non-essential spending to tighten budgets and control expenses. If you are a devoted saver, then this may have been a difficult pill to swallow for you. If you had to formally stop saving for retirement, then contacting the TRS after your divorce to show that you can once again contribute to your retirement would be an idea that you should consider. 

Division of benefits under a TRS plan

What happens if the court does divide up your TRS benefits? The first consideration should prioritize dividing the money. For example, if you and your spouse agreed to have your spouse paid directly by TRS then you should make sure that the manner in that you set that up works for TRS. They cannot honor every final decree of divorce and its language on plan division. Instead, it is advisable to check with TRS in advance to ascertain the required language for the domestic relations order, facilitating a smooth division and payout.

TRS is not a 401K or Individual Retirement Account. There is more to it when it comes to dividing up a plan. The attorneys with the Law Office of Bryan Fagan have represented teachers and the spouses of teachers with great frequency over the years so we are very much familiar with TRS and their retirements for plan division. However, not every family law attorney in southeast Texas can say the same. As a result, you should consider what you need in terms of representation in your divorce. 

To issue payment to your spouse, the retirement system requires a domestic relations order or DRO. It’s essential to contact TRS in advance about a model they’ve created, which can serve as the basis for a DRO. You can customize these models with the language of your case, ensuring they meet TRS requirements for distributing payments to individuals like your spouse. The model you use depends on whether you’re an active teacher or already retired.

What is a TRS model domestic relations order?

A domestic relations order is an order that is created by a Texas family law court because of a divorce. You and your co-parent will create the document and the court will review, approve, and sign the order. The DRO will award a portion of your TRS benefits to your spouse or ex-spouse because of the divorce. You must understand at least the basics of a DRO so that there is no confusion about how to proceed in handling this important end-of-case matter in your divorce. 

Navigating TRS Benefits in Divorce Proceedings

Calling TRS at the end of your divorce to inform them of the percentage of your retirement benefits to be paid to your spouse is not feasible. Instead, you must contact them ahead of time to access one of their DRO models. The model you fill out largely depends on whether you are currently employed as a teacher or are retired or no longer teaching.

TRS will review your DRO to make sure that it matches their requirements for the distribution of funds to your spouse. If it does, the DRO becomes a qualified domestic relations order or QDRO. TRS will then administer the QDRO based on the language contained in your final decree of divorce as far as the retirement plan division is concerned. You must use the TRS model to divide up the retirement benefits under your plan. 

The model orders are available through the TRS website. If you are not retired under the TRS as of the date of your divorce, you should opt for the model domestic relations order for active members. On the contrary, you should choose the model domestic relations order for retirees if your TRS retirement date is before the date of your divorce. Be aware that TRS may reject your order as not being qualified if you choose the wrong model by mistake. Do not change language contained in the model order and do not leave language out for any reason.

Importance of Legal Guidance in Retirement Benefit Division

You should be cautious of engaging in retirement plan benefit division without the assistance of an attorney. Having the advice and counsel of an experienced family law attorney can make a tremendous difference for you in your case. This is complicated and sensitive work that you are doing. Small mistakes or omissions can be the difference between completing your divorce successfully and having unfinished business once your divorce has completed itself.

One of the most frustrating parts of a divorce can be where the vast majority of your case is complete, yet you still have outstanding business to attend to when it comes to retirement plan division. Be aware that it’s possible to conclude the rest of your case without successfully dividing the retirement benefits. This scenario can be highly frustrating for families who have diligently worked to complete their cases. Hiring an experienced family law attorney to represent and guide you through the divorce process could have prevented this.

It’s important to note that a family law attorney doesn’t make decisions for you in a divorce case. Instead, they provide information and guidance similar to a teacher. An attorney also serves as an advocate on your behalf if needed, but in the day-to-day matters of your case, they provide information to help you make better decisions regarding all aspects of your case.

What part of your retirement may be subject to division?

Texas is a community property state. This means that a presumption applies to all your property at the time of your divorce, indicating that it is subject to division in the divorce. The same rule applies to your retirement benefits. This can appear to be a fairly simple breakdown but in most cases, it becomes fairly complicated. 

It is not easy to quickly determine the portion of your retirement that may be subject to division in your divorce. First, we analyze the portion of your retirement that was saved during your marriage. If a substantial part or all of the retirement savings was contributed during your marriage, then that is the amount subject to division in the divorce as community property. You would need to use a formula to determine any portion of the savings that would be separate property, contributed to before your marriage, and not subject to division.

That formula would involve you taking the total number of months that you worked and earned credit towards your retirement during your marriage and then dividing that amount by the total number of months you worked and earned credit overall. This would give you the percentage of your benefits that are subject to division in your divorce as community property. Your years of service and salary while working will also help you determine how much your actual benefits will be upon retirement. 

Defined benefits retirement accounts

A defined benefit account provides you with a fixed amount of money (benefit) for a specific period during your retirement years. A defined benefit plan like one offered through TRS determines the amount of benefit using a formula based on how long you have worked as a teacher and your yearly salary over that time. The average salary that you earned over your highest five years of earnings history is used to figure out your retirement benefit. The longer you worked, then the more money you can receive. 

Approaching the subject of retirement plan division

Retirement plan division can either be one of those subjects which gets no attention in a divorce or becomes the most important subject. If you are a young teacher, then your retirement savings may not be that important to you. Suppose that you just started work or have a significant amount of retirement from another job. In that case, your retirement may not be top of mind when it comes to thinking about issues in your divorce. That doesn’t mean that you won’t ever become concerned about your retirement. All it means is that at this moment you have other concerns on your mind.

On the other hand, if you are a person who is entering your golden years then you probably have many concerns over retirement savings. Being able to control to some degree your income during your retirement years is crucial to being able to live. Through your many years of teaching, you may be looking at a monthly payout of benefits that is significant, as well. Losing a portion of these benefits because of your divorce may be enough to keep you awake at night. However, there are steps that you can take to not lose control of your case, your retirement, and your sanity during a divorce.  

Securing Retirement Savings in Divorce

First, it pays to be able to have a plan when it comes to your retirement. By the time your divorce proceedings begin, much of this subject matter will have already been determined. You won’t be able to alter factors such as the amount you’ve earned throughout your career, the duration of your career, or the expected monthly retirement income. These are all factors that nobody involved in your case can change. 

However, you can start thinking critically about the case in terms of how you want to protect your retirement. For example, you can start to look at your retirement as far as poker chips all being in the middle of a table. All those poker chips in the middle of your table need to be pushed to one side or the other. To you or your spouse will all that community property go? There are many options for you to consider about how to divide up community property. The key will be doing so in a way that is fair but protects the savings that you have worked so hard to build up throughout your working life. 

Negotiating Options with Your Spouse

You may be able to work with your spouse to simply not touch your retirement. This can be an option if your spouse has retirement savings that are of equal or near equal value. You may need to perform a comparison between a pension plan and a 401K, but you can accomplish this by being diligent. Start by considering what property can be exchanged in place of retirement. You may be able to execute a trade that is desirable to your spouse. 

Otherwise, your spouse may be in a position where he needs money now- liquidity is key. Cash may be more helpful to your spouse. For example, suppose that he wants to open a business now that he will have more time on his hands after the divorce. A retirement plan may be helpful when it comes to living comfortably as a senior, but as a middle-aged person trying to open a business, a retirement plan probably won’t help him much. Maybe you offer to trade him a brokerage account instead of diving into your TRS benefits?

Questions about the material contained in today’s blog post? Contact the Law Office of Bryan Fagan

If you have any questions about the material contained in today’s blog post, please do not hesitate to contact the Law Office of Bryan Fagan. Our licensed family law attorneys offer free-of-charge consultations six days a week in person, over the phone, and via video. During these consultations, you can learn more about Texas family law and how filing a divorce or child custody case may impact your family’s circumstances.

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Frequently Asked Questions

Bryan Joseph Fagan( Attorney )

Bryan Fagan, a native of Atascocita, Texas, is a dedicated family law attorney inspired by John Grisham’s “The Pelican Brief.” He is the first lawyer in his family, which includes two adopted brothers. Bryan’s commitment to family is personal and professional; he cared for his grandmother with Alzheimer’s while completing his degree and attended the South Texas College of Law at night.

Married with three children, Bryan’s personal experiences enrich his understanding of family dynamics, which is central to his legal practice. He specializes in family law, offering innovative and efficient legal services. A certified member of the College of the State Bar of Texas, Bryan is part of an elite group of legal professionals committed to ongoing education and high-level expertise.

His legal practice covers divorce, custody disputes, property disputes, adoption, paternity, and mediation. Bryan is also experienced in drafting marital property agreements. He leads a team dedicated to complex family law cases and protecting families from false CPS allegations.

Based in Houston, Bryan is active in the Houston Family Law Sector of the Houston Bar Association and various family law groups in Texas. His deep understanding of family values and his professional dedication make him a compassionate advocate for families navigating Texas family law.