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Even a non-working spouse has a claim to the pension in divorce

Couples facing divorce in Illinois frequently have to sort out disagreements about how to fairly split up their possessions. It is relatively common for disagreements to occur about who owns what and what assets and debts are marital property. The more valuable the asset in question, the more likely spouses are to argue over who will retain it.

The house you share is likely going to be a source of contention in the divorce. The same is probably true of any pension or retirement account you have. Pensions and retirement funds are emotional assets. In a way, they reflect a person's dedication to the future.

Retirement accounts require planning and saving for a long amount of time to support yourself after you retire. Pensions necessitate that you remain employed with the same business for many years.

If you have funded a retirement account or earned a pension, you may not feel like you need to share it with your spouse. Unfortunately, the Illinois family courts won't necessarily agree with you.

Are your retirement accounts and pension marital or separate property?

Before the courts will decide how to divide up your assets, they have to first determine which assets are separate property owned by one spouse and which assets are marital property jointly owned by both. In the vast majority of cases, assets obtained during the marriage are marital property.

Even if only one spouse works, the non-working spouse likely has some ownership interest in assets acquired during the marriage. Non-working spouses make significant non-financial contributions to the household. The duties they perform would cost substantial money if performed by a professional.

The courts will look at the contributions of each spouse to the marriage, as well as the length of the marriage and the likelihood of the nonworking spouse to earn a living wage and secure a retirement.

However, in many cases, both spouses have a partial claim to the pension or retirement account funds accrued during the marriage.

You may be able to protect your pension or retirement fund

There are a number of circumstances in which you will be able to defend your ownership interest in your pension or retirement fund by claiming it as separate property. Incredibly short marriages, and marriages with prenuptial or postnuptial agreements discussing retirement accounts, are situations that may not require the division of a pension or retirement account.

There are scenarios in which Illinois law will protect a pension as separate property. It is almost impossible to predict the exact outcome of a divorce, which is why getting legal advice is important.

Sitting down with an experienced family law attorney can help you figure out your best strategy and the most likely outcome in your case.

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