Divorce & Annulment

questions & answers

Question: My spouse and i both have a retirement plan thru our employer. We are 38 and 40 years old and getting divorced. Since we both have our own retirement plan, do we each get 1/2 of the others during a divorce? this seems silly? How does the court view this scenario? If only one spouse had a retirement plan i could see the division of it but it seems if both parties have a retirement plan, you would just keep your own?

Answer:

The following is provided for general information only. To find out how the law applies to a specific situation, contact an attorney directly. Arizona is a community property state. Community property and separate property are defined in ARS 25-211. Under this law, "[a]ll property acquired by either husband or wife during the marriage is the community property of the husband and wife except for property that is" separate. Separate property is property belonging to the individual spouses prior to the date of marriage or acquired after the service of a petition for dissolution. Under certain circumstances, gifts and inheritance to only one spouse during the marriage may be separate property. Retirement plans, like any other asset, can be either community or separate. It is not uncommon for a portion of a retirement plan to be earned prior to the marriage, and thus part of the plan is separate and part community. Arizona law, specifically ARS 25-318, states that the court "shall also divide the community, joint tenancy and other property held in common equitably, though not necessarily in kind."

Comments:

QUESTIONS

  • My spouse and i both have a retirement plan thru our employer. We are 38 and 40 years old and getting divorced. Since we both have our own retirement plan, do we each get 1/2 of the others during a divorce? this seems silly? How does the court view this scenario? If only one spouse had a retirement plan i could see the division of it but it seems if both parties have a retirement plan, you would just keep your own?

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