Am I entitled to my spouse’s retirement when we divorce in Florida?

1020934_retirement_money.jpgRetirement benefits are often a combination of employee and employer contributions during ones job. The retirement benefits are normally grown through the length of employment, and if an employee is married during his/her employment, then the contribution he/she is making is actually a marital contribution for purposes of a Florida divorce. As a divorce lawyer in Jacksonville, Florida, I have clients that are uncertain if they actually will get any type of retirement benefits if they were to divorce, and sometimes they even postpone divorce due to their fear of their financial futures. To best understand your rights and options as they relate to a divorce, property division and retirement separation, you should speak with a divorce attorney in your area.

In a Florida divorce, the property, including retirement funds, are to be equitably distributed between the parties. However, nonmarital assets are not divided in the divorce because they are considered the property of the spouse that brought them into the marriage. How that plays out with retirement is that if you are married for 10 years and you work for 10 years at the same company before the marriage, then only 10 years of your retirement may actually be divided during the divorce proceedings.

In Florida law, there are mandatory disclosure requirements, which require both parties to provide copies of documents related to bank accounts, IRA, 401(k)s, etc. The reason for this disclosure is so that the proper funds can be disbursed between the parties. A true accounting of your 401(k) can make it easier to guarantee that the correct amounts of funds are actually divided in the final divorce order. The rules governing this division of retirement funds can be found in Florida Statute 61.076.

When dividing civilian retirement, the employer will need a Qualified Domestic Relations Order, which will actually dictate the division of the retirement funds. The fund are typically going to be rolled into a separate 401(k) or like account as presently exists for the nonemployee spouse. In order to preserve the funds, it is important for the Qualified Domestic Relations Order to be done as soon as possible after the divorce. Things such as 401(k)s can fluctuate with the market, so it is vital to preserve the funds and the nonemployee spouse’s right to said funds.

Florida Statute 61.076 also gives rules for dividing such things as military retirement, due to their 10/10 rule, which is for 10 years of marriage during 10 years of service. In order for retirement to be properly divided, the military requires orders that specifically reflect information necessary to divide the marital portion of the military retirement. In civil occupations, the employer often requires a Qualified Domestic Relations Order, but the military actually will go off the final judgment of divorce in order to separate the funds accordingly. Having the correct language is mandatory for the military to properly divide the funds between the spouses.

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