Can you save your retirement account from division in a divorce?

Maybe you and your spouse have been slowly growing apart for years, and you have little in common anymore. Perhaps there was a more dramatic problem that forced you to change your opinion on your marriage, such as the discovery of infidelity or an act of spousal abuse.

When you find yourself in a situation where you think divorce is the best way forward, it’s only natural to start worrying about how you can protect yourself financially, especially because you have to split everything you own with your spouse during the divorce.

Other than the home that you may share with your spouse, your retirement account or pension is likely the biggest asset you have. If you hold the account in your name and are the only one who has made contributions to it, is it possible to keep your retirement fund in the divorce?

Is your retirement account separate or marital property?

Determining if you can protect your retirement account from division requires exploring whether or not Florida will consider your retirement account to be marital property. Generally speaking, only your separate property remains exempt from division in a divorce. Separate property includes assets owned before the marriage, assets you inherit, and gifts and assets earmarked as separate property in a valid prenuptial or postnuptial agreement.

If most or all of the deposits are from during your marriage, then it is likely that the account will be subject to equitable division. Amounts deposited prior to the marriage, however, will likely remain exempt from division and be your separate property.

You might be able to negotiate to keep the retirement account

While the courts will likely divide your retirement accounts if you have a contested divorce, it may be possible for you to negotiate terms with your ex that will allow you to retain the retirement account or pension in consideration of other valuable assets that you allow your spouse to retain. It may also be possible to request a similar approach by the courts, provided that you have enough assets to reasonably offset your spouse’s theoretical share of the account.