In most divorce cases, the Commonwealth of Virginia requires that spouses have an initial separation before finalizing for divorce. This period needs to be anywhere from six to twelve months.
If you decide to separate, it is wise to inform the court by filing a separation agreement. This document (much like a final divorce decree) will contain many details, such as the division of assets, child custody and other arrangements that will become legally binding when the separation begins. It is best to have the assistance of an experienced divorce lawyer when figuring out the terms of a separation.
You may be wondering how you split a pension in a divorce. As part of the monetary portion of the separation agreement, there may be pension payments involved. In certain circumstances, the spouse not receiving the pension may be entitled to part of the pension during separation and after divorce. But for now, let’s dig a little deeper into the separation. You can also click here to find out how to protect your assets in a divorce.
Separation Vs. Divorce
There is no definition for legally separated in Virginia. However, you can obtain a separation agreement with many of the same provisions as a divorce decree. Because this document is often complex and has a significant impact on the lives of everyone involved, it is advisable to consult an attorney before creating or signing a separation agreement.
Separate Property Vs. Marital Property
The state of Virginia recognizes two types of property during divorce. Separate property is anything acquired before the marriage occurred, and marital property is anything obtained afterward.
So, where does this leave those with pensions? Let’s take a look at three examples below:
Bob worked for ABC Corporation for five years before he was married. He then started a different job a few weeks before getting married. He has a pension from ABC Corp that pays him $200 monthly. Because this employment occurred before the marriage, this is separate property and is 100% Bob’s.
In scenario number two, Bob worked for ABC Corp for ten years. He started working there when he was married and has been the entire time since. Bob is now retired, and his pension pays $400 per month. His spouse is entitled to up to 50% of the pension amount if they get divorced because it was all earned during the marriage and is considered marital property.
In scenario number three, Bob worked at ABC for five years before being married. He continued working there for another five years after marriage. He receives a pension of $400 a month. The non-pension spouse is entitled to up to 25% of Bob’s pension because he worked there five years before the marriage and five years after, and they might divide the marital-property portion equally.
If you would like to protect your assets in a divorce, you should begin gathering documentation for any benefits earned before your marriage began.
Conclusion
The separation agreement will contain many of the same provisions as a finalized divorce decree. Therefore, a non-pension receiving spouse may be entitled to portions of the other spouse’s pension. However, as with any complex legal document, it is always advisable to seek professional legal advice before drafting or signing any legal documents related to separation or divorce.
