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How does property division impact a pension in a divorce?

In a divorce in Illinois, property division might seem like a secondary issue when placed in the context of child support, spousal support, custody and visitation, but that does not diminish its importance. There are many parts of property division that will come to the forefront, including the marital home, motor vehicles, personal items that one spouse or another might want to retain and more. Pensions are also a key consideration. Understanding how pensions are addressed in family law with property division is critical to both the spouse who earned the pension and the spouse who believes he or she should get part of it.

With pension benefits, if it was acquired by the spouse during the marriage and prior to the divorce, legal separation or a marriage being declared invalid, it will be considered marital property. This is true if they were state benefits, from a defined benefit plan, a defined contribution plan or account, an IRA or a non-qualified plan. An important note about the pension plan and whether it will be subject to property division is the ability of one spouse to overcome the presumption that it is marital property.

To overcome the presumption, there must be clear and convincing evidence that the benefits were accrued through a method that is listed under the law for disposition of property and debts. That includes that which was excluded through an agreement. When determining the value of the pension, it will be subject to the Illinois Pension Code. The pension is viewed as property that each spouse has a right to receive a portion of if the situation warrants it.

People who accumulate a pension or retirement fund from their work will generally want to retain it even when they are getting a divorce. The spouse who did not have the pension or retirement fund will also have an argument to receive a portion of it under state family law.

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