Pension after marriage

North Carolina Divorce Law Divorce and Separation Answers
1

Dear Jayneenm:

Greetings. Let me ask you one question - why has he not filed for divorce? No, she is incorrect BUT she is correct that if they are married for 10 years she is entitled to claim off of his social security rather than her own.

Both Husband and Wife are entitled to half of the marital interest of each other’s pensions. Thank you.

Janet L. Fritts
Attorney with Rosen Divorce
4101 Lake Boone Trail, Suite 500
Raleigh, North Carolina 27607
919.787.6668 main phone
919.256.1665 direct fax

10925 David Taylor Drive, Suite 100
Charlotte, North Carolina 28262
704.644.2831 main voice
704.307.4595 main fax

The response posted above is based upon the limited factual information made available and is not intended as a full and complete response to the question. The only reliable manner to obtain complete and adequate legal advice is to consult with an attorney, fully explain your situation, and allow the attorney sufficient opportunity to research the applicable law and facts required to render an accurate opinion. The basic information provided above is intended as a public service but a full discussion with an attorney should be undertaken before taking any action.

2

Neither of them ever filed for divorce simply because there was no need to. They do, however, have legal separation papers that basically state
WAIVER OF CLAIMS AGINST THE ESTATE:
Husband does hereby waive, realeas,e discharge, quitclaim and renounce unto the wife and her heirs and assigns, and wife does hereby waive, realse, discharge, quitclaim and renounce unto husband and his heirs and assigns:

All other rights, claims every kind for past and future support and maintenance for property settlement.

All and every right to a share in the estate of the other’s property upon said party’s death as provided in NC General Statutes 29-14 or otherwise, as now and hereafter by law provided

All and every right to elect to take a life estate in real estate upon the death of the other partiy in lieu of the share provided in the NC General Statutes 29-14 as provided in NC General Statutes 29-30 or otherwise, now and hereafter by law provided

All and every right to a year’s allowance upon the death of the other party as provided by NC General Statutes 30-15, or otherwise, now or hereafter by law provided.

Goes on to add right dissent as provided in NC General Statutes 30-1
All and every right to administer upon the estate of the other party NC Statute 28-6

All other right or interests in property , both real and person which they now have or may hereafter acquire and so forth and so on.

Also there is a relase and waive of equitable distribution rights that they agree that any and all right under NC General Statutes 50-20 again waived…

My question to you and sorry for being so long winded is that isn’t the social security entitlement part of that somewhere?

And if she is entitled to half of his would he not be entitled to half of hers especially since she makes a lot more money than him?

Thanks again.

3

Dear Jayneenm:

Greetings. Waivers against the estate of a spouse deals only with waiving rights to their property after their death. Social security is a federal entitledment and no state contract (such as a separation agreement) can change what a spouse is or is not entitled to, so no, the waiver does not affect social security rights.

Yes, he would also be entitled to half of anything she has with social security. To check on how the social security system works, I recommend reading their website. Thank you.

Janet L. Fritts
Attorney with Rosen Divorce
4101 Lake Boone Trail, Suite 500
Raleigh, North Carolina 27607
919.787.6668 main phone
919.256.1665 direct fax

10925 David Taylor Drive, Suite 100
Charlotte, North Carolina 28262
704.644.2831 main voice
704.307.4595 main fax

The response posted above is based upon the limited factual information made available and is not intended as a full and complete response to the question. The only reliable manner to obtain complete and adequate legal advice is to consult with an attorney, fully explain your situation, and allow the attorney sufficient opportunity to research the applicable law and facts required to render an accurate opinion. The basic information provided above is intended as a public service but a full discussion with an attorney should be undertaken before taking any action.

4

I have a question about 401K and pensions. My soon-to-be-ex (now separated 6 months) were married for 3 years. Some states require a certain # of years prior to the other spouse claiming they get half of the value of 401k/pensions during married years. For equitable distribution purposes in NC, if we made the same amount of $$ and put in 10% but one of us was vested and therefore, the value was greater, do you see the courts forcing me to give him half of the difference even after only 3 years of marriage? That seems to be the main difference in settling our marital assets. It just doesn’t seem fair after working for a company for over 5 years and working 60 hour weeks that he should be entitled to half of what he hasn’t earned. Thank you Janet.

5

Dear iamconfused:

Greetings. Yes, he is entitled to half of all the marital interest in the retirement accounts. Yes, you are also entitled to half of all the marital interest in his retirement accounts. It does not matter if you were married for 5 days or 25 years, the same rules apply.

Also, make sure that you divide both accounts equally, versus giving some of yours and not getting his. That usually will work out better for you in the long run. Thank you.

Janet L. Fritts
Attorney with Rosen Divorce
4101 Lake Boone Trail, Suite 500
Raleigh, North Carolina 27607
919.787.6668 main phone
919.256.1665 direct fax

10925 David Taylor Drive, Suite 100
Charlotte, North Carolina 28262
704.644.2831 main voice
704.307.4595 main fax

The response posted above is based upon the limited factual information made available and is not intended as a full and complete response to the question. The only reliable manner to obtain complete and adequate legal advice is to consult with an attorney, fully explain your situation, and allow the attorney sufficient opportunity to research the applicable law and facts required to render an accurate opinion. The basic information provided above is intended as a public service but a full discussion with an attorney should be undertaken before taking any action.

6

My boyfriend’s wife (soon to be ex hopefully) recently stated that after this September they will have been married for 9 years and 9 months, but legally separated since November 2002 and that she will be entitled to have his pension earned for the rest of his life is that true?? He is 30 and she is 29. Also, if she truly is entitled to half his pension, would he not be entitled to half of hers since during the last few years she has been earning much more money than him?