Dear cp1017:

Greetings. First, the “ten year rule” you are refering to must be the social security rule. The rule for social security (directly off their website) is that “A person who is divorced after at least 10 years of marriage may qualify for benefits on the former spouse’s Social Security record.”

Next, your retirement accounts may have the marital portion divided up between you and your spouse. You must divide the same prior to the divorce, through a separation agreement or by filing an action in the court for equitable distribution, or you each lose your right to each other’s retirement, among other assets.

Marital fault does not affect equitable distribution, unless it is strictly financial in nature. I do not see abandonment forcing your spouse to lose her rights to your retirement, but I would have to see the overall weighing of equity. For example, if your wife wasted $30,000 of marital funds traveling to Italy to have an affair, the court may give you the funds back in an equitable distribution. Since the funds were spent already (in my example) the court could give your wife less retirement funds to balance out her reckless spending. Best of luck and let us know if you want one of our attorneys to help you review the equity in your marital estate.

Janet L. Fritts
Attorney at Law
4101 Lake Boone Trail, Suite 500
Raleigh, North Carolina 27607

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.

What is the ten year rule regarding retirement? My wife and I separated after 9 years together. Our divorce should become final 10 years 3 months after marriage. How does this affect retirement. Also, under what circumstances are spouses not awarded half of retirement(abandonment? etc.)?