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A question I am often asked is, “Can I get my spouse’s retirement account?” Or phrased a different way, “Do I have to give my spouse any of my retirement account?” The short answer is yes.

Tennessee law defines marital property as any increase in value during the marriage of vested and unvested pensions and retirement accounts. If one or both of the parties had pension plans or other retirement plans that existed prior to the marriage, any increase in the value of that retirement would be considered marital property subject to division. The court must determine the increase in value of the retirement, and then equitably divide that property as of the time of the final divorce hearing. If the retirement account was first acquired after the date of the marriage, then all of the value of the retirement account would be marital property subject to division.

Depending on the type of retirement account, a separate order may need to be prepared instructing the administrator of the retirement plan on the proper way to divide the account. Such an order is usually called a Qualified Domestic Relations Order (QDRO) and is required by the Internal Revenue Service before a distribution can be made to the former spouse. Some types of pensions require a different type of order. For example, military pensions and federal retirement plans require an order that complies with the specific agencies mandate before such a retirement can be paid by that agency to the former spouse.

There are situations where both parties to the divorce will agree not to divide a pension or retirement account. Such situations might include where both parties have retirement accounts that are of substantially equal value and the cost of preparing the documents to divide the accounts makes such a division uneconomical. Or perhaps the spouse with the retirement account is willing to give the other spouse a greater share of the other assets acquired during the marriage to make up the difference.

Whatever your particular situation, it is important to retain an attorney with the knowledge and skill needed to guide you through such matters.

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