Can I Make a Claim on My Spouse’s Pension if We Never Officially Divorced?

Can I Make a Claim on My Spouse’s Pension if We Never Officially Divorced?When you get married, you are so happy and excited to spend the rest of your life with the person that you love; you never think it will eventually end in divorce. That is exactly why a lot of people do not go into the marriage with anything like a prenuptial agreement to protect their assets like real estate property, bank accounts, or belongings. The unfortunate part is that when you go through a divorce without a prenup, everything is capable of being divided—even your spouse’s pension. In the state of Tennessee, it is considered an asset whether it is vested or non-vested.

If you were married to your spouse for decades, you were probably relying on that pension in order to live through your retirement. So it can be a shock to realize that a huge wrench was thrown into both of your plans. However, there could be a workaround. If you choose to legally separate from your spouse rather than divorce them in Franklin, you may find that it will benefit both of you.

The difference between separation and divorce

It is good to know the difference between a divorce and legal separation when you are considering ending your marriage. Depending on where you are in life, you and your spouse may still need to lean on one another in order to continue living comfortably. A divorce and separation in Franklin are pretty similar at a distance, but there are some significant distinctions that may end up swaying your choice at the end of the day.


A divorce is when both partners have decided that their marriage is not working anymore and want to officially end it. The couple will then need to decide how to divide their assets, which is typically right down the middle, then arrange custody agreements if they have children, and alimony. However, if they cannot come to an agreement, then they will go to family court, where a third-party judge will decide.

Divorce can be seen as beneficial because once the couple has gone through the process, that is it. They should not have to go back to court again since their marriage has been dissolved. It can be seen as a downside that a pension is considered a marital asset and would be divided as well.

Some couples may choose to finalize a divorce for:

  • Wanting to remarry another partner
  • Formally dissolving the marriage

Legal separation

In a legal separation, the couple has also decided that their marriage is over. They will still need to divide assets, determine custody, and potentially agree on alimony depending on the scenario. The key difference is that the couple does not actually finalize the divorce. This means that they remain married on paper, yet are legally allowed to date and live separate lives.

Because no divorce papers have been filed, the couple is still entitled to each other’s insurance coverage, tax benefits, and even pensions. Plus, the couple is able to decide if they want to remain separated indefinitely or follow through with finalizing a divorce. If they want to remain married, all they need to do is ask the court to terminate the separation order.

Some couples may choose a legal separation for:

  • Maintaining a stable life for their family
  • Preserving tax and health benefits
  • Protecting religious beliefs
  • Ensure payment of a spouse’s pension

You are entitled to your spouse’s pension

Whether you are married, divorced, or separated, you are entitled to at least some of your spouse’s pension. If a divorce was formally finalized, you are only entitled to up to 50% of your ex-spouse’s disposable retired pay at most.  This depends on how long you were married, how long your spouse has been working, and many other factors.

If you never got your divorce finalized or chose to legally separate instead of divorcing, then it is almost as if nothing changed in terms of making a claim on your spouse’s pension. It is still as though you are married to them – because you technically still are.

Dividing retirement funds and pensions is not simple

Some people may choose to divorce over separating because they will finally cut ties with their partner for good once it is over. Many couples who are having arguments or feel acrimonious toward each other may opt for this way out. As easy as it may think to just cut ties, it is not. It is actually incredibly difficult to divide assets like retirement accounts and pensions in a way that both partners are happy with. This can oftentimes lead to a lot of back and forth arguing which only drags out the divorce proceedings and extra attorney fees.

When couples choose to legally separate instead, they may not feel the need to fight as hard for every little thing that they have. Knowing they will still receive the most important benefits like healthcare, taxes deductions, and spousal pensions could make the paperwork aspect much simpler. But it is worth noting that filing for a legal separation is still not something you want to do alone. Working with a Franklin-based experienced divorce attorney can help you make sure you are getting all that you deserve.

Ending your marriage is never an easy thing to do. If you want to file for a legal separation from your spouse, the Franklin attorneys at the Law Offices of Adrian H. Altshuler & Associates may be able to help. We will give you all the information you need to make the best decision for yourself, your relationship, and your future. Call our office, or submit a request through our contact form to schedule an appointment in Franklin, Columbia, or Brentwood today.