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Roger
Roger, Attorney
Category: Family Law
Satisfied Customers: 31786
Experience:  BV Rated by Martindale-Hubbell; SuperLawyer rating by Thompson-Reuters
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My wife and I are heading toward a divorce(20th anniversary

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My wife and I are heading toward a divorce(20th anniversary is today); She is a teacher(22 years) in the Kentucky and has a pension in the Kentucky Retirement System. My 401K retirement has been depleted to $900 for reasons due to myself losing jobs for variety of reasons( company downsizing, economy, and etc). My question to you is has anything change in 2013 that would impact me not getting a 1/2 of her pension? She thinks she can beat me on this and I am wondering why.

Roger :

Hi - my name is XXXXX XXXXX I'm a Family Law litigation attorney. Thank you very much for requesting me. I'll be glad to assist.

Roger :

Let me do a little research and I'll post a reply here momentarily.

Customer:

ok

Roger :

Thanks for your patience.

Customer:

no problem

Roger :

Up until 2010, a public school teacher's retirement was totally exempt from division upon divorce in Kentucky. However, the Kentucky legislature passed HB 289 which requires both Kentucky Retirement Systems (KRS) and Kentucky Teachers Retirement Systems (KTRS) to recognize qualified domestic relations orders (QDRO).


 


Thus, her retirement is now exposed, and you can recover a portion of your retirement through the divorce. Generally, only the amount of your retirement acquired during the divorce would be divisible. Also, if he has a retirement account of his own, the trend is to divide the retirement accounts of both to allow each spouse to have about the same amount of funds in retirement.


 


 

Roger :

Sorry - - typo in last sentence; it should say: if you have a retirement account of your own, it could be divisible even if it's depleted.

Customer:

Ok I am not clear on this answer

Roger :

Here's a good link that outlines this issue: http://ktrs.ky.gov/01_active_members/21_division_marital.htm

Customer:

i am only able to recover 900 from her pension because that is all I have?

Roger :

No, that's not what I'm saying at all.....Sorry for the confusion.

Roger :

Your wife likely believes that her retirement is exempt because it was up until 2010 (she may not be aware of the law change, and that may be why she's taking a hard line with you).

Customer:

So I will be able to receive 1/2 of her pension during the time of marriage

Roger :

However, now the retirement will be divisible as community property/marital asset based on equity. That doesn't necessarily mean equally - - but that's how it usually goes.

Roger :

What I was saying about the money in your account ($900), even though it's a small amount, the court would likely order that it be divided equitably just as hers will be.

Roger :

Thus, you should expect to receive approximately 1/2 of the value of the retirement account that has accumulated during the marriage.

Customer:

so any debt we have will be used against the assets?

Roger :

The court usually divides the debt just like the assets are divided.

Customer:

ok

Customer:

thank you

Roger :

Kentucky is not a community property state, so any individual debts (only in one name) are kept by each person.

Roger :

Marital debts/joint debts are generally divided based on equity as well. Usually, if the wife wants to keep her car, she assumes the note; if the husband wants to keep his truck, he assumes the note, etc.

Customer:

gotcha...so all the credit card debts I have in my name only is my responsibility

Roger :

That's right.

Customer:

ok

Roger :

It would be unusual for a judge to order one spouse to pay or assume the INDIVIDUAL debts of the other.

Customer:

interesting

Customer:

But I should let her find this out on her own through her attorney right?

Customer:

Thank you for your help

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