Answered on Nov 28th, 2011 at 3:09 PM
There is no way to insure that you get retirement except by making a settlement agreement with your spouse in the course of doing the divorce. If the matter goes to trial, instead of settling, then, whether you get retirement, and how much, will be up to the court. In making a determination in property division, the court considers a number of factors. The statute says that the court is to make a fair and equitable division of all of the property. There are a number of factors that the court is supposed to consider in reaching that division. If the court is going to divide the property, it first has to classify it. All of the property is going to be classified as your separate property, her separate property, or community property. Which of these classifications a particular piece of property falls into will depend on how and when the property was obtained. In most cases, property obtained during the marriage will be community property. Once the property is classified, how it gets divided will depend on a number of factors. Some of the factors that the court may consider are: the duration of the marriage, the ages of the parties, the health of the parties, the educational background of the parties, the employment history of the parties, and each party's future prospects. The court then has to come up with what the court believes is a fair and equitable division of all of the property using these and other factors. Now, if there is enough community property so that the court can come up with a fair division using just the community property, the court will generally do that. However, if there is not enough community property for the court to reach what it believes is a fair division, then, it can invade separate property.