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InformationForYou
InformationForYou, Family Law Attorney
Category: Family Law
Satisfied Customers: 1955
Experience:  18 years as a family law attorney, adjunct law professor
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I am getting a divorced after sixteen years. He retired two

Customer Question

I am getting a divorced after sixteen years. He retired two years ago from the state. I was told that I get half of his retirement. How does that work. Will I get the money from the state or will he have to pay it?
Submitted: 6 years ago.
Category: Family Law
Expert:  InformationForYou replied 6 years ago.

In Kentucky, the property and debt issues are typically settled between the parties by a signed Marital Settlement Agreement or the property award is actually order and decreed by the Circuit Court within the Decree of Dissolution of Marriage.

Kentucky is referred to as an "equitable distribution" state. When the parties are unable to reach a settlement, the Circuit Court will take the following approach to dividing the assets; First, it will go through a discovery process to classify which property and debt is to be considered marital. Next, it will assign a monetary value on the marital property and debt. Last, it will distribute the marital assets between the two parties in an equitable fashion. Equitable does not mean equal, but rather what is deemed by the Circuit Court to be fair.

The court shall divide the marital property without regard to marital misconduct in just proportions considering all relevant factors including: (1) Contribution of each spouse to acquisition of the marital property, including contribution of a spouse as homemaker; (2) Value of the property set apart to each spouse; (3) Duration of the marriage; and (4) Economic circumstances of each spouse when the division of property is to become effective, including the desirability of awarding the family home or the right to live therein for reasonable periods to the spouse having custody of any children. (Kentucky Statutes - Title 35 - Chapters: 403.190)

 

Since Kentucky is an "Equitable Distribution" state, all marital property will be divided in an equitable fashion according to the court unless agreed to otherwise by the divorcing spouses. What does "equitable" mean? Equitable can be defined as "what is fair, not necessarily equal." To automatically believe the marital property would be divided 50-50 would be a wrong assumption in any equitable distribution state. You can also read more about Kentucky property division in the Kentucky state statutes located at: http://www.lrc.state.ky.us/KRS/403-00/CHAPTER.HTM.

 

So yes, the court will equitably divide the retirement that was earned during the marriage, however, you will need to ask for it from the court or else have it in the settlement agreement and thereafter (if it is a pension or a profit sharing plan, or even some 401k plans) a special order called a qualified domestic relations order has to be entered by the court which will divide your husband's retirement. (It will ultimately order that the plan administrator of the retirement plan pay you your share of the retirement directly).

 

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InformationForYou, Family Law Attorney
Category: Family Law
Satisfied Customers: 1955
Experience: 18 years as a family law attorney, adjunct law professor
InformationForYou and 5 other Family Law Specialists are ready to help you
Customer: replied 6 years ago.
Will the share of his retirement be given in one lump sum or paid over a period of time? This is a very nasty divorce. He's upset that I'm going after his retirement and he's tring to play dirty. I worked for sixteen years and bought 3 years of his retirement so he could retire early. I want him to have to go back to work. Will he have to give me half his check?
Expert:  InformationForYou replied 6 years ago.

If he is currently receiving his retirement and it is in the form a pension, then you will receive it over time (directly from the pension plan administrator "if, as and when" he receives his payments). That means that if he receives a check right now for $3,000 of which you're ultimately entitled to $1,300, then he would instead in the future get a check from the pension for $1700 and you'd get the $1300 directly from them. (If it is a 401k, then the amount to which you're entitled can typically be rolled over into an IRA in your own name.

 

Keep in mind that you're only entitled to a share of the portion of the retirement earned during the marriage.

 

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