Tom McCutcheon – Attorney at Law
Q: I read that if you live with someone for ten years you are entitled to part of their retirement. I was married to my ex-husband for 20 years but we have been divorced for 29 years. Neither one of us has remarried. Will I be entitled to part of his retirement? If so, where do I start?
Jennifer
Leighton, AL
A: There is some confusion about a ten year rule. Social Security has some widows’ benefit rules that by and large require marriage to a wage earner for 10 years or more.
If you are married for 10 or more years to a wage earner and meet the requirements under Social Security Rules, you can draw social security benefits off of their earnings record.
Alabama has specific rules that require a marriage of 10 years before retirement benefits are considered by the Court for division. There is a specific statute at Alabama Code §30-2-51 that addresses when retirement benefits may be divided by the Court if the Court sees fit to do so. Obviously, different judges and different facts and different people with different stories yield different results.
§30-2-51 is as follows:
(1) The parties have been married for a period of 10 years during which the retirement was being accumulated.
(2) The court shall not include in the estate the value of any retirement benefits acquired prior to the marriage including any interest or appreciation of the benefits.
(3) The total amount of the retirement benefits payable to the non-covered spouse shall not exceed 50 percent of the retirement benefits that may be considered by the court.
I have seen a few marriages end after nine years rather than wait for 10 years and a potential loss of retirement benefits. I would think that the 10 year period includes the date of marriage through the date of the final decree and any appeal.
Because retirement benefits are considered to be a property right they are not modifiable (changeable) by the Court after 30 days from the final decree. If your former husband’s retirement was not divided by the Court in your final decree 29 years ago, you are not entitled to part of his retirement.
Buckle up and drive safely.
McCutcheon & Hamner, P.C.
2210 Helton Drive
Florence, Alabama 35630
Telephone: 256-764-0112
Facsimile: 256-764-1124
