Potential clients often contact our office with the question of what will happen to their retirement benefits upon the filing of a divorce. More specifically, they wonder if their spouse is automatically entitled to half of their benefits. Under Georgia law, both vested and unvested benefits that were acquired during the marriage are subject to equitable division. It is important to note that “equitable” does not necessarily mean “equal.” One should also be aware that only the portion of a spouse’s retirement benefits acquired during the marriage are consider marital property. Therefore, the portion of a spouse’s retirement benefits that pre-date the marriage is considered the separate property of the spouse who earned the benefits. When considering the equitable division of retirement benefits accrued during the marriage, a court can consider such factors as the actual contributions of the spouse who did not earn the benefits, the number of years of the marriage during which contributions to the retirement account were made, and the degree to which their has been reliance on the expectation of these future benefits. These are only a few of the factual variables that courts can consider when determining the equitable division of a spouse’s retirement benefits. Further, Georgia courts generally have broad discretion when determining the equitable division of property during a divorce. Accordingly, the division of marital property, including retirement benefits, will be upheld upon an appeal absent a showing of abuse. If either you or your spouse is considering filing for
divorce, contact The Faucette Law Firm LLC at (770) 485-6620 for further information on how it will affect your retirement benefits.