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If your divorce occurred after 1984, and your ex-husband was an active participant under a company pension plan or 401(k) plan, your attorney should have addressed this issue in your separation agreement or judgment entry of divorce. You should have been awarded a portion of your ex-husband’s pension benefits that were earned (or accrued) during the marriage. Let me say this again. If your ex-husband was actively employed and covered under a company pension or 401(k) plan at any time during your marriage, you should be entitled, in your own right, to a portion of his eventual pension or savings plan benefits.

As a former spouse of a plan participant, you are considered to be a co-owner of the pension benefits earned during the marriage and do not merely stand in the shoes of a creditor. You should have been awarded a property interest in his pension benefits. The pension benefits earned during the marriage are just another asset to be “put on the table” when divvying up the marital assets, just like the toaster oven and the microwave. As one Ohio court said, “A pension plan is an investment made by both spouses during the marriage to provide for their later years. It’s only equitable that each party enjoys their rightful share to half of the marital portion of the pension that accrued during the marriage.”

Don’t let your attorney forget about this very important pension asset. Many attorneys are very intimidated by QDROs and the federal pension laws and do not like dealing with pension issues during a divorce. But because more and more employees are covered by pension plans today, it should be of central concern to the attorney and the nonparticipant spouse.

It’s also important to understand that your receipt of a portion of your ex-husband’s pension payment is not automatic. Even if your divorce decree states that you are entitled to a portion of your ex-husband’s pension benefits, you will never see any of these benefits unless a separate legal document called a QDRO was prepared by your attorney and submitted to the pension plan administrator for review and approval.