Is My Spouse Entitled to My Retirement Benefits in a Texas Divorce?


Retirement accounts are one of the most valuable assets in a divorce. For this reason, if you are going through a divorce, you may wonder, “Is my spouse entitled to my retirement benefits?”

Many people fear losing their retirement savings, especially if the divorce occurs when nearing their retirement age. Thus, if you are considering a divorce or are already going through one, you need to understand how retirement benefits are divided in a Texas divorce.

Consult with a Gatesville divorce attorney to determine if your spouse is entitled to your pension in a divorce.

What Are Retirement Benefits in a Texas Divorce?

Before we explain how retirement accounts are divided in a divorce, it is vital to understand the different types of retirement benefits. Retirement benefits include:

  • 401(k) accounts

  • Pensions

  • Individual Retirement Accounts (IRAs)

  • Deferred compensation accounts

Retirement benefits also include other types of retirement plans. Consider speaking with a knowledgeable divorce attorney in Texas to identify all types of retirement benefits that may be split during your divorce.

How Are Assets Divided in a Texas Divorce?

To understand how your retirement benefits may be divided upon divorce, you need to know how the property division process works in Texas.

Texas is a community property state (Texas Family Code § 3.002). For the purpose of division of property, a divorcing couple’s property is characterized as either community or separate property.

Community property is any property acquired by both spouses during the marriage, while separate property includes:

  • Any property owned and purchased by an individual spouse before the marriage;

  • Any property received by either spouse as a gift or inheritance before or during the marriage; and

  • Personal injury settlements and verdicts received by an individual spouse during the marriage, except for compensation for the loss of consortium recovered by their spouse and the loss of earning capacity.

However, separate property is often commingled – or, in other words, mixed – with community property. When it happens, a spouse’s separate property loses its “separate status.”

Can My Spouse Obtain My Retirement Benefits Upon a Divorce?

“But what about retirement accounts?” you may wonder. Your spouse is entitled to any retirement benefits you have accumulated during the marriage in the event of a divorce. Meanwhile, any retirement benefits you obtained before the marriage are your separate property and are not subject to division upon divorce.

In other words, whether or not your spouse can obtain your retirement benefits also depends on when you started making contributions to your retirement accounts. Any contributions made before the marriage are your separate property, while any contributions made after the marriage are considered community property.

In many cases, retirement accounts consist of both separate and community property. However, as you can imagine, it can be difficult to make a distinction between separate and community property.

Does It Matter How Long We’ve Been Married?

The length of your marriage may matter when dividing certain types of retirement accounts upon divorce. However, many retirement plans, including 401(k), can be divided between you and your spouse regardless of how long you have been married.

The eligibility for retirement benefits depends on the type of the savings plan. Let’s take a look at Social Security spousal benefits and military retirement benefits:

  • Social Security spousal benefits. Your spouse is entitled to your Social Security spousal benefits if you have been married for at least 10 years and meet other eligibility requirements. The amount of spousal benefits are based on you and your spouse’s work history.

  • Military retirement benefits. These benefits are based on how long you served in the Armed Forces during your marriage.

How to Determine if My Spouse Has Retirement?

If you are not sure if your spouse has retirement accounts, you can check their pay stubs or earning statements to check for contributions to employer-based retirement programs.

Your spouse’s 401(k) and other retirement accounts also send statements by mail shortly before the tax filing date.

Can I Cash Out My Retirement Benefits Upon a Divorce?

In many Texas counties, a standing order is automatically put in place when either spouse files for divorce. The order prohibits both spouses from cashing out from their retirement accounts.

If your county does not impose a mandatory standing order, your spouse may request a Temporary Restraining Order when filing for divorce to prevent you from withdrawing funds from your retirement savings plans.

Any spouse who violates the standing or Temporary Restraining Order can be held in contempt of court.

How Can I Keep My Retirement Benefits During a Texas Divorce?

Since retirement accounts are usually the couple’s most valuable asset, many spouses want to keep their benefits during a divorce proceeding. There are two options to keep your retirement assets upon divorce:

  1. Agreement. Often, divorcing couples come to an agreement that each of them will keep their own retirement benefits and avoid dividing them.

  2. Exchange. Another option to keep your retirement benefits is by giving your spouse other assets in exchange for the retirement benefits of the same value.

Here’s how it works. Let’s say that you have accumulated $10,000 of retirement benefits on one of your savings plans during the marriage. Your automobile is also worth $10,000. You exchange your share of the vehicle - $5,000 – for your spouse’s share of your retirement account, which is also $5,000.

That way, you get to keep your retirement benefits during a divorce. It is best to consult with a skilled divorce attorney to help you protect your assets, including retirement accounts, during a Texas divorce.

Contact a Gatesville Divorce Attorney for a Free Consultation

Schedule a free initial consultation with our Gatesville divorce lawyers at The Law Office of Brett H. Pritchard to determine if your spouse is entitled to your retirement benefits and help you protect your assets.

If you are concerned about how the court may handle your retirement accounts during a divorce or cannot negotiate an agreement with your spouse to divide your assets, our divorce attorneys can help. Call 254-501-4040 to schedule a consultation.


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