Retirement savings are often the second largest asset in a marriage, after the house, and sometimes the largest. In New Braunfels and Comal County, we see every kind of plan: 401(k)s from San Antonio and Austin employers, Texas teacher pensions from local school districts, military retirement tied to Joint Base San Antonio, federal civil-service plans, and Railroad Retirement for families connected to the rail lines that run through our area. Each type follows different rules. As your divorce attorney, our goal is to make sure the division is fair and that the order dividing it will actually be honored by the plan.
Only the Community Portion Is Divided
Retirement benefits earned during the marriage are community property. Benefits earned before the marriage, and after the divorce, are generally the employee’s separate property. So the first job is figuring out the community portion.
- Defined contribution plans (401(k), 403(b), 457, TSP, IRAs): The community portion is generally the contributions and growth during the marriage. Tracing the balance on the wedding date and the growth on it can take statements from years back.
- Defined benefit plans (traditional pensions): Texas courts typically use a fraction based on time, such as months of service during the marriage divided by total months of service, applied to the benefit as it existed at divorce.
What a QDRO Is and Why It Matters
A Qualified Domestic Relations Order (QDRO) is a separate court order that tells a private employer’s retirement plan to pay a portion of an employee’s benefit to the former spouse (the “alternate payee”). Plans governed by ERISA must follow a QDRO and cannot pay without one.
A QDRO must include specific information, such as the plan name, the parties, the amount or percentage awarded, and how gains and losses are treated. Each plan administrator also has its own procedures and often a model order.
Common QDRO mistakes
- Leaving the order until “later,” then losing track of it
- Using language in the decree that conflicts with what the plan allows
- Failing to address investment gains and losses between the division date and the transfer
- Forgetting loans against the account
- Not addressing survivor benefits on a pension, which can leave the former spouse with nothing if the employee dies first
Our firm prefers to have the retirement language settled before the decree is signed and the order submitted promptly afterward.
Government and Special Plans
Not every plan uses a standard QDRO. Many government plans are exempt from ERISA and have their own requirements.
Teacher Retirement System of Texas (TRS) and other Texas public plans
Many Comal County and Guadalupe County families have a spouse who works for a school district, county or state agency. TRS, the Employees Retirement System of Texas, and municipal and county plans each accept domestic relations orders under their own rules and forms. They may limit options, such as when the former spouse can begin receiving payments. Drafting from the plan’s own guidelines is essential. Note that TRS members generally do not pay into Social Security for that job, which can affect the overall picture of retirement income.
Federal civilian plans
Federal employees may have FERS or CSRS pensions and a Thrift Savings Plan. The pension is divided by a court order acceptable to the Office of Personnel Management, and the TSP has its own order requirements. Survivor benefits require specific language.
Military retirement
Military retired pay is divisible as community property in Texas to the extent it was earned during the marriage. The federal Uniformed Services Former Spouses’ Protection Act (USFSPA) controls how it is paid:
- The 10/10 rule (at least 10 years of marriage overlapping 10 years of creditable service) determines whether DFAS will pay the former spouse’s share directly. It does not decide whether the retirement can be divided.
- For divorces after late 2016, federal law generally limits the divisible amount to the member’s retired pay based on rank and service at the time of divorce, with cost-of-living adjustments.
- VA disability compensation is not divisible.
- The Survivor Benefit Plan must be addressed in the decree and elected within strict deadlines.
See our military divorce page for more.
Railroad Retirement
Railroad Retirement benefits come in tiers. Tier I works like Social Security and is not divisible by a state court. Tier II and certain supplemental benefits can be divided by a court order that meets the Railroad Retirement Board’s requirements. Because the Board will only pay the portions federal law permits, the decree and order must be drafted to fit those limits.
Other Retirement-Related Assets
- IRAs can be divided by a transfer “incident to divorce” under the decree; a separate QDRO is not required, but the custodian will want clear decree language.
- Stock options and restricted stock units may be partly community, often apportioned by the time between grant and vesting.
- Deferred compensation and pensions from prior employers should not be overlooked.
- Annuities and cash-value life insurance are often community assets too.
Weighing Retirement Against Other Assets
Sometimes it makes sense to leave retirement intact and trade value elsewhere, for example, one spouse keeps the 401(k) and the other keeps more home equity. Keep in mind that:
- Pretax retirement dollars will be taxed when withdrawn, so they are worth less than the same balance in a bank account.
- A pension’s value depends on assumptions about retirement age and life expectancy; a present-value calculation may be needed.
- Retirement funds are generally protected from creditors in ways cash is not.
These trade-offs are central in a gray divorce and in high-asset divorce cases.
Retirement and Spousal Support
Retirement accounts often interact with support. A spouse who receives a larger share of retirement may need less spousal maintenance, and a spouse who keeps a pension may be better able to pay support. Looking at both together usually produces a more balanced settlement than negotiating them separately. If the account was funded partly before the marriage, see separate property for how tracing works.
Steps to Take Now
- Gather the most recent statement for every retirement account and pension.
- Find statements as close to your date of marriage as possible.
- Ask HR or the plan for the summary plan description and its QDRO procedures.
- List any loans against accounts.
- Check the beneficiary designations, but do not change them while a case is pending without legal advice; temporary orders often prohibit it.
Talk With a New Braunfels Family Law Attorney About Your Retirement
Retirement accounts are easy to divide badly and hard to fix later. Whether your case is in Comal County, Guadalupe County or nearby, our family law team can help you identify the community portion and make sure the order fits the plan. Call (830) 302-4071 for a free consultation by phone, video or in person. Se habla español.
Frequently Asked Questions
Do I pay a penalty when I receive part of my ex-spouse's 401(k)?
A transfer under a valid QDRO is not a taxable distribution if it is rolled into your own retirement account. Federal tax law also allows an alternate payee to take cash from a 401(k)-type plan under a QDRO without the early-withdrawal penalty, though income tax still applies. Ask a tax professional before choosing cash.
Can my ex-spouse's pension be divided before he or she retires?
Yes. A domestic relations order can award you a share of a pension that will be paid in the future. Depending on the plan, you may be able to begin payments at the plan’s earliest retirement age even if the employee keeps working.
Is Social Security divided in a Texas divorce?
No. Social Security benefits are not divisible by a state court. However, a divorced spouse may qualify for benefits based on an ex-spouse’s record under federal rules if the marriage lasted at least 10 years and other requirements are met.
What happens if the QDRO is never done?
The decree may award you a share, but the plan will not pay you without an acceptable order. If the employee retires, remarries or dies first, collecting can become difficult or impossible. Make sure the order is prepared, approved by the plan and entered by the court.
Can we just agree to split the account ourselves?
For an IRA, the decree can authorize a direct transfer without a QDRO. For employer plans, the plan administrator will require a qualifying order. Withdrawing money yourself to split it can trigger taxes and penalties.
Last reviewed November 13, 2026. General information only, not legal advice.