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What will happen to my retirement benefits upon divorce?

As with other property, retirement benefits can either be community or separate property. If the benefits are community property they will be subject to a “just and right” division on divorce. If they are separate property, they will remain the earning spouse’s separate property. Because of this, characterizing your retirement benefits as either community or separate property is essential.

The characterization of your benefits will depend on such factors as:

  • whether your retirement plan is a defined-benefit plan or a defined-contribution plan
  • when your benefits accrued
  • whether your benefits are fully matured

The characterization of stock options and restricted stock plans depends on whether they were granted before or during marriage, and whether you have to work during or after the marriage to exercise your right in the options or plan.