It’s no secret that divorce can be messy, especially when children are involved and the couple has been
married many years. But a short-term marriage should be much easier to end, shouldn’t it? Can’t both
parties just walk away?
Not so fast
Here’s the fantasy: two consenting adults, both employed, enter into marriage with all of the usual
hopes and dreams, but after 3 or 4 years and having had no children together, they decide it was a
mistake and they agree to go their separate ways. After such a short marriage, it’s unlikely an Ohio court
would order spousal support, so they each walk away with what they brought into the marriage and
wish each other well. The peaceful, fairy-tale ending fades to black.
While that can happen if both parties agree to it or if the facts happen to line up, it’s also quite likely
that they won’t agree, especially if one of them stands to gain financially from being disagreeable. While
it’s true that spousal support will typically not be ordered after such a brief marriage, there are other
obligations besides support that come into play.
Retirement accounts: mine or ours?
If you don’t have to pay spousal support, you might wonder why your retirement account wouldn’t also
be protected during a divorce. After all, your retirement account is generally tied in some way to your
employment or income, whether it’s a contributory plan or a pension plan. Shouldn’t that account be
considered part of your income, and thus be out of scope for any division of assets?
The truth is retirement accounts are marital assets… or at least the portion of the account earned during
the marriage is. Pension plans are divided based on time, while contributory plans like a 401K, IRA, etc.,
are assigned a value for the marital portion. Although your employer may offer a generous 401K match
and consider that part of your total compensation package, the fact that it went into your 401K account
and not your paycheck makes that employer match part of the marital asset.
The Good News
While you may not like having to share any of your retirement earnings with someone you were only
married to for a short time, there is some good news. First of all, any portion of your retirement account
earned before the marriage will be treated as separate property, not a marital asset. For example, if you
earn a pension and you’ve been working for 9 years but only married for the last 3 years, only 1/3 of
that pension is considered a marital asset, and that third will be equally divided so the spouse would
only get 1/6 of the pension. It is important to remember that your separate property isn’t automatic –
you still have to produce evidence that supports premarital contributions.
The other good news is that your spouse’s retirement account is also marital property and subject to the
same equitable division. If you have the larger retirement account and thus will owe more, you can
offset your debt by subtracting your share of your spouse’s account.
The Not-So-Good News
If you came into the marriage with a large retirement account that is well-invested and earning great
returns, you may not think it’s appropriate to have to split the growth on the amount of money you had
in your account at the time of the marriage. You may be right, but proving how much of the increase on
your account is based on the money you contributed pre-marriage might be more difficult to prove. You
can always hire an expert to do the research and prepare a report for you, but experts don’t work for
free. However, if it’s worth it to you to have that considered, you should be prepared to pay for
professional help. The court is not going to accept your opinion. Even if you are an accountant, you still
can’t testify as an expert in your own case.
Military pensions can also be tricky. Your exact retirement benefit will not be known until you know at
what rank you will retire, so the portion that is owed to the spouse can feasibly be based on your rank at
the time of the divorce rather than the eventual rank at which you retire. It’s important you seek legal
advice from a divorce attorney with experience in military divorces.
Can I protect my retirement account?
No amount of advance planning can prevent a retirement account from being subject to division as a
marital asset. However, knowing your rights going into a divorce can help protect you from being taken
advantage of. You should always seek your own counsel, even if your spouse appears to want an
amicable resolution. Resign yourself to the fact that your retirement account may take a hit, but enlist
the services of an experienced divorce attorney to ensure you are only splitting the portion that was
earned during the marriage. And what if you don’t have a retirement account or have very little in
yours? Even if your spouse offers to “handle everything” and pay for the divorce, don’t take the bait. Get
your own attorney and make sure their “offer” isn’t an attempt to hide anything.
Get a free divorce consultation!
As tempting as it may be to just walk away after a short-term marriage, don’t do it until you consult with
an experienced divorce lawyer like the team at Kirkland & Sommers. There may be more at stake than
you realize! Get your questions answered and get the knowledge you need to ensure you end things the
right way. All you have to lose is an hour of your time, so call or click today to get started.