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Q: If I get a divorce late in life should there be a division of retirement benefits?

An individual’s retirement account may be considered marital property and subject to being split equally upon a divorce between the parties. However, a division of marital property is determined by many factors and, thus, there is not one simple answer to this question.

The first factor considered is the length of the marriage. If the marriage has been of a duration of generally ten years (more or less) it is likely that even retirement benefits currently being used late in one’s life are going to be divided between the parties. However, the length of the marriage alone is not an indicator of the division of martial assets.

For example, if both parties are financially similar either in that they have an equal amount in their separate retirement accounts and other factors also being equal is highly likely that there will not be a division of an individual’s retirement account.

The Supreme Court of Mississippi formulated factors to be considered in an equitable division of marital assets under a divorce heard before that higher court in Ferguson v Ferguson. These factors are commonly referred to as ‘Ferguson factors’ and a more in depth analysis can be discovered by researching this caselaw. A final factor cited by the honorable Supreme Court was fairness to both parties.

As seen in the Northeast Mississippi Daily Journal’s  “Ask a Professional.”

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