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Retirement benefits such as pensions and 401(k)'s are part of the marital estate unless the parties agree otherwise. Retirement benefits are a marital asset which is divided equally between the parties. Where one spouse has earned the pension or 401(k), the other spouse is awarded his or her marital portion of the asset, which is typically one/half of the amount which accrued from the date of marriage to the date of divorce. Generally, only benefits earned during the marriage will be awarded in a divorce, unless the non-earning spouse contributed to the acquisition of the benefits, or the award to the claimant spouse from the marital estate is insufficient to maintain them. In most cases, the pre-marital portion of a pension or 401(k) is deducted from the amount to be divided, prior to division.
For clarification, pensions are considered "defined benefit" plans, while 401(k)'s, 403(b)'s, and the like are "defined contribution" plans. All are part of the property division in a divorce judgment.