06 Apr Am I owed part of my husband’s pension after divorce?

Q. Two months after my husband retired at age 55, he divorced me. Our house is not paid off and our youngest entered college the month after he retired. We are still paying for our oldest daughters’ student loans. I work part-time but I don’t make enough to cover expenses. Am I entitled to 50% of his pension? His lawyer is requesting I be denied the pension for 12 years until I retire. Do I have a choice? What about child support? He’s joined golf and other clubs and is living the high life while I take care of this family.
— On my own

A. We’re sorry to hear about your marriage.

Let’s start with the child support payments.

Child support payments continue until a child is emancipated, said Jeralyn Lawrence, a family law attorney with Lawrence Law in Watchung.

She said emancipation may — or may not — happen when the child has reached age 18, she said.

“Generally, emancipation occurs upon the graduation of college,” she said. “Therefore, if a child attends college and is working toward his or her undergraduate education on a full-time basis, regardless of whether class sessions are held in-person or virtually/remotely due to the global COVID-19 pandemic, then the child is not considered emancipated, absent an independent emancipating event, such as marriage or entry into the armed forces, to name a few.”

Regardless, Lawrence said, the law is that child support stops when a child moves beyond the sphere of influence of their parents, or in other words, when the child is self-sufficient. So your college student would not yet be emancipated, and your husband would continue to have an obligation to provide support, including contributing to college expenses, she said.

However, for families with a special needs child or children, child support may never stop.

“A special needs child may never move beyond the sphere of influence of their parents and may never be self-sufficient,” she said. “Consequently, it is a case by case analysis and wholly dependent on the facts and circumstances of each case.”

The two significant factors that must be considered are the nature of the child’s special needs and what intervention or therapy the child receives to address the special needs, she said.

As to the division of your husband’s pension, you would be entitled to share in the marital portion of his pension because New Jersey is an equitable distribution state, which means that marital property is divided equitably, or fairly, upon divorce, Lawrence said.

“The portion of your husband’s pension acquired during your marriage would be considered marital property, subject to division,” she said. “This is regardless of whether you work or have reached the age of retirement, and regardless of whether this is your husband’s only stream of income.”

Your inquiry hinges more on the question of whether you are also entitled to spousal support in addition to a portion of your husband’s pension. The answer is not so straightforward without some additional information.

“Notably, your husband retired at the age of 55, which might be considered early retirement, and therefore, may not necessarily be a good faith retirement,” Lawrence said. “It is important to know what he was earning prior to his retirement, and equally important to know what you have been earning during the marriage.”

You mention that he has joined golf and other clubs. It is necessary to have a better understanding of your marital standard of living in order to determine whether your husband’s quality of life has significantly increased upon his retirement, or if these expenses were customary during the marriage, Lawrence said.

“Your and your husband’s ability to maintain the marital standard of living is a relevant factor in determining whether you will also be entitled to spousal support,” she said.

Other relevant factors will be whether your husband’s retirement was mandatory or voluntary, the other assets that both you and your husband have amassed during the marriage, as well as your ages and your health.

You should work with an experienced family lawyer who can analyze each of these factors with you and negotiate for you the best settlement possible given these circumstances.

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This story was originally published on April 6, 2021.

NJMoneyHelp.com presents certain general financial planning principles and advice, but should never be viewed as a substitute for obtaining advice from a personal professional advisor who understands your unique individual circumstances.