Retirement issues can one of the most impacting issues in a divorce. One of the main questions I encounter in a divorce is if a retirement plan be can subject to division. Under Alabama law, an ex-spouse can receive a portion of your retirement.

Three important things to remember when retirement property is being subject to division in a divorce proceeding:

1. The non-covered spouse can not receive more than 50% of all the retirement benefits
2. The marriage must last long than 10 years during which the retirement benefits were accrued.
3. The court may not include any benefits accrued before the married

Number two, mentioned above, is depicted in a divorce proceeding that arose out of Lauderdale County, Alabama in the case of Colgan v. Colgan. Here, the parties were married in 1984 and had been married for 28 years. In 2013, the parties sought out a divorce. Accordingly, the husband filed a motion in limine asking the trial court to prohibit evidence being introduced regarding his retirement accounts and retirement income. The husband asserted that his retirement account was not part of the marital estate under § 30-2-51(b), Alabama Code, 1975. Pursuant to that code section, a trial court “may include in the estate of either spouse the present value of any… current retirement benefits” under the certain conditions “that the parties have been married for 10 years during which the retirement was being accumulated.” The husband testified at trial that he only worked for the company for 6 years after the parties had married. Regardless, the trial court entered a judgment awarding the wife alimony and one-half of the husband’s retirement plans.

The Court of Civil Appeals held that the judgment was to be reversed. Specifically, the appellate court ruled that parties had only been married 6 years that the husband had accrued his retirement account. Therefore, pursuant to § 30-2-51(b), Alabama Code, 1975 the appellate court held that it was not within the discretion of the trial court to divide one party’s retirement benefits incident to a divorce judgment unless the parties to the action have been married for a 10-year period during which the retirement benefits were accumulated.

Division of retirement benefits in a divorce are subject to stringent guidelines. For example, let’s say you have been married to someone for 30 years. During first five years of your marriage, your spouse had an outstanding job with a pension plan; however, he only worked at said job for 5 years during the marriage. In this example, regardless of the 30-year long marriage, the non-covered spouse will not be entitled to a division of this retirement plan because it was not accumulated over a 10-year period.

Division of retirement benefits is a highly debated topic in divorce proceedings. Normally, people don’t like to see their ex-spouse take half of their retirement plans and will fight tooth and nail to block the ex-spouse from receiving any retirement benefits.