One question we are commonly asked at the onset of a divorce, is whether their spouse is entitled to a part of their pension or retirement. Most people assume that because the account is under their name and paid from their income, that the pension or retirement belongs to that person alone without any claim from their spouse.
However, the Illinois Marriage and Dissolution of Marriage Act (IMDMA) categorizes any income earned during the marriage as marital property, regardless as to who earned the income. Because the funds that were invested into the retirement or pension account would have otherwise been included in that party’s paycheck, a Court considers those funds as part of the party’s income. Furthermore, that paycheck would have likely gone into the party’s joint account to spend on marital expenses. Besides the money invested in the pension or retirement account, any matching by an employer or increase in value is also considered marital. As a result, upon the filing of an action to dissolve the marriage, a spouse’s retirement or 401(k) is considered a marital asset that is subject to equitable division.
The question remains, however, as to what amount the other spouse is entitled to. The IMDMA calls for an “equitable” division of the parties’ assets. In most cases, that means an equal 50/50 split. There are some circumstances, however, that would warrant a disproportionate division of assets. For example, if one party has a vast amount of non-marital property, even though that non-marital property is not being divided with the spouse, a judge can look at the amount of the spouse’s non-marital property and award the other spouse a little more of the marital estate. The same would occur if one party has a high income and will be able to continue to increase the size of his estate after the divorce, while the other spouse will likely have to live off of whatever he/she is given from the divorce.
Another example is when the parties have been separated for a long period of time, and a court may not consider it fair to grant the other spouse exactly half of a retirement or pension account. In all of these situations, it is up to a judge’s discretion to look at the facts and determine what would be fair and equitable under the circumstances. For these reasons, it is important to understand what arguments you or your attorney can make to increase your chances of a disproportionate share of the marital assets.