Can the non-employee ex-spouse receive benefits before the employee ex-spouse retires?

By Cynthia Ann Brassington
August 28, 2017
Can the non-employee ex-spouse receive benefits before the employee ex-spouse retires?

It depends on the plan. When I have a defined benefit plan, I write to the plan. Sometimes I can find the plan documents online which is common nowadays. If I can't find it online, I will write to the plan because it's good to have the plan document which is going to tell you exactly when that employee can take his or her share of the other spouse's pension.

Some plans say that you can't touch it until the other spouse is of retirement age. Whether they retire or not is irrelevant. Once they get to retirement age, you can take it. However, there are other plans that you have to wait till that spouse retires, whether or not that spouse has reached retirement age, before you can get your share of that plan. That's why you have to know exactly what the plan is and when you're going to receive your funds, when you do your marital settlement agreement, so you can effectively do divorce planning with your client.

I want to explain the curvature fraction. It sounds a little complicated and it's not as complicated as it sounds, but we do use experts to define exactly what a spouse will receive. When we divide a defined benefit plan, we have to look for how long the party, we call the plan participant was in the plan during the marriage and how long the plan participant was in the plan during the entire period of employment.

For example if the plan participant was in the plan for ten years during the marriage, that is 120 months. You would divide that 120 months by the number of months that the plan participant was in the plan with the employer. That's going to give you your curvature fraction which now defines the marital portion and then the spouse, the alternate payee, normally will receive 50 percent of that.

It may be subject to adjustment for agreement or by some equitable distribution fashion such as if there was a pension loan during the marriage, but we can safely say that we're feeling that approximately 50 percent of those funds will be received by the alternate payee. Then that alternate payee will receive those funds when she or he is able to do so under the dictates of the plan. I always say that pension plans are like snowflakes; every single one of them is different.

New Jersey attorney Cynthia Ann Brassington is certified by the Supreme Court of New Jersey as a Matrimonial Law Attorney, and regularly helps people to resolve their divorce-related issues, from property division, to child support, and custody. To learn more about Cynthia and her practice visit

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August 28, 2017
Categories:  Financial Issues|FAQs

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