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Ely, Counselor at Law
Category: Family Law
Satisfied Customers: 11842
Experience:  Private practice with focus on family, criminal, PI, consumer protection, and business consultation.
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My ex husband passed away Nov. 2, 2015. We were married 24

Customer Question

My ex husband passed away Nov. 2, 2015. We were married for over 24 years. I am a teacher, and during our marriage, his jobs moved me and our kids several times. Each moved he advised me to withdraw my retirement money saying it will help with the move and he would buy my years back for me later. Well, our last move was to Georgia. He moved me and the kids a few months early so I could register the kids in school. Later he calls and says he will not be moving and he would stay at his job in Indianapolis. I did not know his plans was to desert us. About a year laster I files for divorce and he would not sign it. He somehow moved to Virginia and filed for the divorce leaving me and the kids with not support. He then remarried and his spouse were sperated and the time of his death. They were married about seven years.
I am trying to file for his retirement because my retirement is very little since it was withdrawn each time he moved us. Please tell me if I can obtain any of his pension. I have been teaching for 32 years, and continue to teach because my retirement would not be nearly enough for me live and pay mortage and health insurance. Please help me with this situration. Thanks you so much!
Submitted: 1 year ago.
Category: Family Law
Customer: replied 1 year ago.
Ok, Thanks you in advance for all you help.
Expert:  Seattle Scott replied 1 year ago.

I am sorry to say the answer is probably "no", but you have to read the language of the property division order or decree in the divorce final papers. A pension is an asset subject to division at the time of divorce and given your facts, you probably were entitled to a percentage of his pension in the divorce. The problem is the standard language of divorce decrees is something like " Each spouse is awarded their respective employment benefits, past and future" so if your divorce papers say something like that, then you are too late to make a claim on his pension. Also, if he started drawing on his pension, you are out of luck too, because once a pension starts paying out, federal law says you can't make the pension plan pay out a different way. Finally, if ex did not elect a survivor-ship benefit for his pension, you are also out of luck, since he would get 100% of his benefits for life and now his life has ended, so it is too late to change the election with the pension plan.

Are you sure about the social security result?

Customer: replied 1 year ago.
I don't think the pension has been drawn out to anyone yet. I do have papers that were signed by my ex stating he knows, by law, that I should get 50% of his retirement. I also have a signed statement that says he would buy back my years of retirement that was withdrawn.
In reference to the Social Security, it was said that the amount I would receive is so small that it offsets me getting anything. I don't really understand that. My ex has always worked for the Federal Government, but I was told, the last few years, his job didn't pay into Social Security.
Expert:  Seattle Scott replied 1 year ago.

What matters is what was stated in the divorce final papers. If you were not awarded a percentage of his pension or he was not obligated to pay you something when he started to draw his pension, then it is too late to assert a right to his pension. Did he sign those two statement before or after the divorce was final? Do you know whether his current wife was named as a survivor for pension benefits?