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The Law Offices of James A. Adams, P.C., L.L.O.
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Can your stay-at-home ex really claim part of your pension?

You have spent your entire adult life working hard to support your family. Your wife and your kids enjoyed a healthy and happy life in no small part because you chose to provide that for them. Your spouse stayed home to care for the house and to help raise the children, which means that she did not contribute anything to your household income or to your retirement account.

Now that you know you will probably get divorced, you may find yourself wondering whether a stay-at-home spouse has any viable claim to a portion of your pension. After all, a vested pension is often one of the most substantial benefits you receive from employment, and many employers offer matching amounts and similar perks as a performance incentive to their staff.

If your wife never worked or contributed to your pension, you may want to keep it for yourself in the divorce. However, under Nebraska law, it is likely that the courts will treat your pension, or at least part of it, as marital property owned by both you and your non-working spouse.

The courts recognize the importance of non-financial household contributions

Nebraska is an equitable distribution state, which means that the primary focus of the courts during the asset division process is an outcome that is fair to both spouses. They look at many factors when determining the fast way to split up your accrued assets and debts. They will consider the duration of the marriage, the financial and non-financial contributions of each spouse, individual earning potential and other issues, such as health concerns or child custody.

Part of your pension may remain protected as separate property. Deposits made prior to your marriage or after your date of separation will remain separate and not subject to division. However, any amount accrued during the marriage, including employer matching amounts and possibly even interest on earlier deposits, will likely wind up factored into the asset division proceedings.

Exactly how do Nebraska family courts split a pension?

Each family's circumstances will be unique, and the Nebraska family courts will do their best to create a solution that matches those circumstances. In some cases, if your divorce comes well before retirement age, the courts could choose to use the value of the pension to offset other assets allocated to your spouse. That would mean that they don't divide the account itself.

Other times, the courts could order the plan administrator who manages your pension fund to split part of the accrued balance off into a separate account for your spouse. If that is not an option or if you have gotten very close to retirement age, the courts might also choose to order spousal maintenance or alimony that begins when you start receiving the pension and lasts for as long as you collect those benefits.

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