23 Aug My parents are divorcing and mom doesn’t want his pension. Now what?
Q. My mother and father are getting a divorce after 43 years. My mother has Social Security and my dad has a pension. She is so mad that him that she says she doesn’t want any of the pension. How can I convince her it’s a huge mistake?
— Loving child
A. Divorce, in the best of circumstances, can still be a very emotional time. It seems for your parents, or at least for your mom, it’s not the best of circumstances.
Perhaps you could try a conversation with your mother with an understanding of exactly your mother would be entitled to as part of a divorce, said Jeralyn Lawrence, a family law attorney with Lawrence Law in Watchung.
“Retirement plans, including pensions, are considered assets of the marriage provided they were obtained, earned or contributed to during the marriage,” she said. “In New Jersey, these assets would be split between husband and wife equitably, or fairly, in a divorce.”
Based on the information you provided and the fact that it is a long-term marriage, the marital portion of the pension would likely be divided equally, Lawrence said.
The “marital portion” consists of the pension’s value between the date of marriage and the date of a complaint for divorce in most cases, she said.
“Your parents’ marriage of 43 years is a substantial length of time, and if your mother chooses not to receive her 50 percent of the marital portion of her husband’s pension, she could be walking away from a large asset that she would otherwise be entitled to receive,” Lawrence said. “Often, a pension is the most valuable asset in a marriage, even more valuable than the marital residence.”
Lawrence said you should also know your mother is allowed to collect her Social Security whether or not her and her husband proceed with a divorce.
In the event of a divorce, she would be entitled to receive her share of the pension in addition to her Social Security benefits, she said.
“In fact, she may have the option of receiving the greater of either her Social Security benefits, or 50 percent of her husband’s Social Security benefits, provided she qualifies to do so under the Social Security Administration,” she said.
It is extremely important that your mother understand her rights through the divorce process so that she does not have regrets about the final terms of settlement, Lawrence said. Once those terms have been agreed upon and signed by your parents, it may not be possible for either of them to change that agreement. Even if it is possible, it will likely come at a very high cost or expense, she said.
“Sometimes personal reasons guide our decision-making, and that is perfectly acceptable,” she said. “However, it is recommended that your mother have a full and complete understanding of what she would be entitled to as part of a divorce to allow her to make the most educated decision.”
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This story was originally published on Aug. 23, 2019.
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