Key Takeaways
Pensions are often divisible in a New Hampshire divorce. New Hampshire courts may divide all or part of a pension under RSA 458:16-a, depending on the facts of the case.
It does not matter who earned the pension. A pension earned by one spouse may still become subject to equitable division during divorce.
Only part of the pension may be marital. If a spouse earned pension benefits before the marriage, the court may distinguish between premarital and marital contributions.
New Hampshire follows equitable distribution. The court starts with a presumption that an equal division is fair. However, the judge may order a different division after considering the statutory factors.
Different pensions require different methods of division. Defined benefit pensions, defined contribution plans, military pensions, and government pensions each present unique legal and valuation issues.
Many pensions require a Qualified Domestic Relations Order (QDRO). A QDRO allows most private retirement plans to divide benefits without triggering unnecessary taxes or penalties. Government plans may require different orders.
Accurate valuation matters. The value of a pension may depend on years of service, retirement age, and future benefits. Financial experts sometimes help determine an appropriate division.
Early planning can prevent costly mistakes. Understanding how New Hampshire courts divide pensions helps spouses negotiate informed settlements and avoid surprises during the divorce process.
How Pensions Are Divided in a New Hampshire Divorce
When people start thinking about divorce, they often focus on the assets they can easily see: the house, bank accounts, investments, and retirement accounts with readily available balances.
But one of the most valuable, and most misunderstood, assets in many New Hampshire divorces is a pension.
Defined benefit plans, commonly called pensions, do not operate like a 401(k) or IRA. Instead of maintaining an individual account balance, they generally promise future retirement income based on factors such as years of service, salary, and retirement age.
That can make both valuation and division more complicated. New Hampshire law in this area also changed significantly in 2025, when the New Hampshire Supreme Court clarified how courts must treat pensions that include benefits earned before marriage.
Understanding how pensions are valued and divided can therefore be an important part of evaluating the overall financial picture in a New Hampshire divorce.
How New Hampshire Treats Pensions in Property Division
New Hampshire includes pension and retirement benefits within the property that may be divided in a divorce.
Under RSA 458:16-a, the court may divide tangible and intangible property belonging to either or both spouses, including vested and nonvested pension and retirement benefits. New Hampshire uses an all-property approach, meaning property is not automatically excluded simply because one spouse acquired it before marriage or because it is titled in only one spouse’s name.
The court begins with a presumption that an equal division is equitable, but it may order a different result after considering the statutory factors.
When a pension is involved, the important questions generally become how the benefit should be valued and how it should be incorporated into the overall division of property.
Why Defined Benefit Pensions Are Different
A traditional pension is fundamentally different from a 401(k), IRA, or other defined contribution account.
With a defined contribution account, there is usually an identifiable balance. Statements show the investments held in the account and their current value.
A defined benefit pension instead provides a future stream of income. The amount ultimately paid may depend on:
- Years of service: Benefits often increase as the employee accumulates additional service credit.
- Compensation: Many plans calculate retirement income using the employee’s salary or final average compensation.
- Retirement age: The age at which benefits begin may affect the monthly payment.
- Plan provisions: Early retirement subsidies, survivor benefits, cost-of-living adjustments, and other plan features can materially affect value.
When retirement is still years away, the ultimate benefit may therefore be difficult to value with precision. That problem led the New Hampshire Supreme Court to develop to develop a specific approach to dividing pensions.
The Traditional Approach for Dividing Pension Benefits: the Hodgins Formula
For decades, New Hampshire courts have relied on Hodgins v. Hodgins, 126 N.H. 711 (1985), when dividing defined benefit pensions whose actual and contingent values cannot reliably be determined at the time of divorce.
Rather than requiring the court to assign a present dollar value to an uncertain future pension, Hodgins permits the division to be deferred until benefits are actually paid.
The formula generally compares the employee’s service during the marriage and before commencement of the divorce with the total service credit accumulated by the time pension benefits begin. The resulting percentage is then applied to the pension payment, with the former spouse receiving the share awarded in the divorce.
In simplified terms, the approach asks how much of the employee’s total pension-producing service occurred during the marriage.
One important feature of Hodgins is that the percentage is generally applied to the benefit actually received at retirement, rather than merely to the benefit the employee could have received on the date of divorce. As a result, post-divorce salary increases can affect the ultimate pension payments even though the coverture fraction limits the former spouse’s percentage.
The approach avoids requiring the parties or the court to predict the pension’s future value years in advance because it divides the benefit when it actually exists.
The Problem With Pensions Earned Before Marriage
For many years, the Hodgins formula was sometimes understood as effectively excluding benefits attributable to service before marriage.
That created a problem under New Hampshire’s property division statute.
RSA 458:16-a does not exclude property simply because it was acquired before marriage. Property brought into the marriage remains part of the property the court must consider, although the timing and source of the asset can affect how the court ultimately distributes it.
That tension became particularly important when a pension had both a premarital component and a component attributable to years of service during the marriage.
The New Hampshire Supreme Court addressed that issue directly in 2025.
LeGault & LeGault: The 2025 Pension Decision
In In the Matter of LeGault & LeGault, 2025 N.H. 24, the New Hampshire Supreme Court clarified how RSA 458:16-a interacts with the Hodgins formula.
The husband had begun participating in his pension approximately six years before the marriage and continued earning pension benefits during the marriage. The trial court used the Hodgins formula to address the portion attributable to employment during the marriage and did not separately divide or offset the premarital portion.
The Supreme Court concluded that the premarital portion could not simply be excluded from the property subject to equitable distribution.
The Court emphasized that RSA 458:16-a makes no general distinction between property brought into the marriage and property acquired afterward. The entire pension therefore had to be considered as part of the property division analysis.
That does not mean the nonemployee spouse automatically receives half of the premarital portion.
The court may consider when and by whom property was acquired when deciding what distribution is equitable. A judge could ultimately award the premarital portion to the employee spouse, account for its value through other property, or fashion another equitable result.
The important point after LeGault is that the court cannot treat the premarital portion as though it falls entirely outside the property division analysis.
This reflects New Hampshire’s broader treatment of premarital property in divorce.
What LeGault Changed, and What It Did Not
LeGault did not eliminate the Hodgins formula.
Hodgins remains an important method for dividing a defined benefit pension when its value cannot reasonably be determined at the time of divorce.
What LeGault clarified is the limit of that formula.
Hodgins addresses how to apportion pension benefits associated with employment during the marriage when the future pension value is uncertain. It does not create an exception allowing pension benefits earned before marriage to be removed from the divisible estate.
As a result, a divorce involving a pension with premarital service may require two related analyses:
- Pension division: The Hodgins formula or another appropriate methodology may determine how future payments are divided.
- Overall property division: The court must still consider the entire pension, including the value associated with premarital service, when determining whether the complete distribution of property is equitable.
That distinction can significantly affect settlement negotiations when the pension is one of the largest assets in the case.
How Is a Pension Valued in a New Hampshire Divorce?
There are two basic ways to deal with the economic value of a defined benefit pension: divide the future benefit when it is paid or determine a present value during the divorce.
Deferred Distribution
The Hodgins approach is a form of deferred distribution.
Instead of deciding that the pension is worth a particular dollar amount today, the spouses share the future payments under an agreed or court-ordered formula once the employee begins receiving benefits.
This approach places some of the future uncertainty on both spouses. If the ultimate pension payment changes, the amount distributed under the formula changes with it.
It can also avoid the cost and uncertainty of assigning a present value to a pension many years before retirement.
Present-Value Analysis
In other cases, the parties may want to estimate the pension’s present value so that one spouse can keep the pension while the other receives different assets.
Present-value calculations can be complicated because they attempt to determine what a future stream of retirement income is worth today.
Depending on the plan, the analysis may involve assumptions concerning:
- Life expectancy: Pension payments generally continue for the participant’s lifetime.
- Interest or discount rates: Future payments must be converted into present-day dollars.
- Retirement age: The expected start date affects the value of the benefit.
- Future compensation: Some pension formulas depend on salary near retirement.
- Cost-of-living increases: Certain plans increase benefits after retirement.
- Survivor benefits: Elections concerning a surviving spouse or former spouse may affect both monthly payments and overall value.
Because different assumptions can produce substantially different valuations, actuaries or other pension professionals may become useful in cases involving significant defined benefit plans.
The appropriate approach often depends on the size of the pension, the other property available for division, how close the employee is to retirement, and whether the spouses want to remain financially connected after divorce.
Qualified Domestic Relations Orders and Pension Division
Determining how a pension should be divided is only part of the process. The retirement plan must also receive an order it is legally permitted to follow.
For many private employer retirement plans governed by federal law, that document is a Qualified Domestic Relations Order, commonly called a QDRO.
A QDRO is a court order that recognizes an alternate payee’s right to receive some or all of the retirement benefits awarded in the divorce. The order generally identifies the participant and alternate payee, describes the amount or percentage being awarded, and provides the information necessary for the plan administrator to implement the division.
The divorce decree and QDRO serve related but different purposes. The divorce decree establishes the spouses’ rights. The QDRO gives the retirement plan the instructions necessary to actually administer the award.
A properly drafted QDRO may also address issues such as the timing and form of payments and, where applicable, survivor benefits.
Not every pension is divided through a QDRO. Military retirement, federal pensions, and other government retirement systems may be governed by different statutes, administrative procedures, and specialized retirement orders.
For that reason, identifying the exact pension plan and obtaining its governing documents early in the divorce can prevent problems later.
Examples of Pension Division in New Hampshire
The way these rules operate can vary substantially depending on the pension and the rest of the marital estate.
Pension Earned Entirely During the Marriage
Suppose one spouse worked for the same employer throughout a twenty-year marriage and earned a traditional defined benefit pension entirely during that period.
If the pension’s value cannot reliably be determined at divorce, the court could use the Hodgins formula so that the other spouse receives an appropriate share when retirement benefits begin.
Because there was no premarital service, the LeGault issue would not arise.
Pension Service Began Before the Marriage
Assume instead that the employee worked for the same employer for eight years before marriage and another fifteen years during the marriage.
The Hodgins formula may still be useful in determining the portion of future payments attributable to employment during the marriage.
After LeGault, however, the analysis cannot end there. The pension value associated with those first eight years cannot simply be removed from the property subject to equitable distribution.
The court must consider that premarital portion when evaluating the complete property division, although it may ultimately determine that awarding some or all of it to the employee spouse is equitable.
One Spouse Keeps the Pension
Suppose the pension has a reasonably supportable present value and the marital estate also includes substantial home equity and investment accounts.
The spouses might agree that the employee will retain the pension while the other spouse receives a larger portion of the home equity or investments.
That can reduce ongoing financial ties between former spouses, but the trade only makes sense if the parties understand the relative value and risks of the assets being exchanged.
A dollar of home equity, for example, is not necessarily economically identical to a dollar of future pension value.
A Government or Military Pension
A pension earned through public employment or military service may be subject to different administrative rules than a private employer plan.
The benefit may still be considered in the New Hampshire property division, but the parties must use the retirement order and procedures required by that particular system rather than assuming that a traditional private-plan QDRO will work.
Why Pension Issues Can Make Divorce More Complicated
Pension disputes often involve more than simply deciding what percentage each spouse receives.
The parties may disagree about the pension’s value, whether to use deferred distribution or an offset, how survivor benefits should be handled, or how a premarital component should affect the overall property division after LeGault.
Those issues can become particularly significant when the pension represents a large portion of the family’s wealth.
Obtaining complete pension records early, identifying the type of plan, and understanding the available methods of division can make settlement discussions more productive and reduce the risk of discovering a major retirement issue late in the case.
A Fictional New Hampshire Fact Pattern
Imagine a fictional case involving Mark and Jennifer, who were married for twenty-five years. Mark worked for a manufacturing company and participated in a traditional defined benefit pension plan. He began working for the company five years before the marriage and continued working there throughout the marriage. Jennifer left the workforce for several years to care for the couple’s children before eventually returning to part-time employment. By the time of the divorce, Mark’s pension had become one of the family’s most valuable financial assets.
Mark argues that the pension should largely remain with him because he earned the benefit through his employment and began participating in the plan before the marriage. Jennifer agrees that the pension arose from Mark’s employment, but points out that most of his pension-producing years occurred during their twenty-five-year marriage. She also argues that her contributions as a parent and homemaker allowed Mark to continue working and advancing in his career.
The pension raises two related issues under New Hampshire law.
First, the court must determine how to address the future pension benefits attributable to Mark’s employment during the marriage. If the pension does not have a reasonably ascertainable value at the time of divorce, the court may look to the approach established in Hodgins v. Hodgins. Under the Hodgins formula, the portion of the pension associated with employment during the marriage can be divided when Mark actually begins receiving benefits, rather than requiring the court to assign an uncertain present value to those future payments.
Second, the court cannot simply disregard the five years of pension benefits Mark earned before the marriage. That is the issue clarified by LeGault. Because New Hampshire’s property division statute includes property acquired before marriage within the property subject to equitable distribution, the premarital component of Mark’s pension must also be considered when the court evaluates the overall division of the marital estate.
That does not necessarily mean Jennifer receives half of the pension associated with Mark’s five years of premarital employment. The court may consider the fact that Mark earned that portion before the marriage when deciding what distribution is equitable. It could ultimately award that portion to Mark, account for its value through the distribution of other property, or reach another result supported by the statutory factors.
For example, the court might use the Hodgins approach to divide the appropriate portion of Mark’s future pension payments while also considering the value associated with his premarital service when dividing the couple’s home equity, investment accounts, or other assets. Jennifer’s contributions during the marriage, including time spent caring for the children and managing the household, may also be relevant to the broader equitable distribution analysis under RSA 458:16-a.
This example illustrates the relationship between Hodgins and LeGault. Hodgins provides an important method for dealing with uncertain future pension benefits, while LeGault makes clear that the analysis cannot end by excluding benefits associated with premarital service. The pension must be considered as part of the entire financial picture before the court determines an equitable property division.
Frequently Asked Questions About Pension Division in New Hampshire
Are pensions included in a New Hampshire divorce?
Yes. New Hampshire law includes vested and nonvested pension benefits within the property that may be equitably divided under RSA 458:16-a.
What is the Hodgins formula?
The Hodgins formula is a method New Hampshire courts use to divide certain defined benefit pensions when their value cannot reliably be determined at the time of divorce. It generally bases the former spouse’s share on the employee’s service during the marriage compared with total service when benefits begin.
Is the premarital portion of a pension excluded from division?
No. Under LeGault, pension benefits attributable to service before marriage cannot simply be excluded from the property subject to equitable distribution. The court may still consider the premarital nature of that portion when determining the ultimate distribution.
Can a pension be valued at the time of divorce?
Yes, in appropriate cases. An actuary or other pension professional may estimate the present value of future benefits, although the assumptions required can make valuation complex and the parties may instead use deferred distribution.
What is a QDRO?
A Qualified Domestic Relations Order is a court order commonly used to direct many private employer retirement plans to pay a specified portion of benefits to a spouse or former spouse. The order must comply with federal law and the terms of the particular retirement plan.
Does every pension use a QDRO?
No. Government pensions, military retirement systems, and certain other plans may require different orders or administrative procedures.
Can one spouse keep the pension while the other receives different property?
Yes. Spouses may negotiate an offset in which one retains the pension and the other receives more of another asset, such as home equity or investments. Reliable valuation is particularly important when using this approach.
Do pension experts always need to be involved?
No. Many pension cases can be resolved using plan information and an appropriate division formula. Expert assistance becomes more useful when the parties need a present-value calculation, dispute pension assumptions, or are considering exchanging the pension for other significant assets.
Final Thoughts
Pensions can be among the most valuable assets in a New Hampshire divorce, but they are also among the easiest to misunderstand.
Hodgins remains an important part of New Hampshire law because it provides a practical method of dividing uncertain future pension benefits. LeGault adds an equally important clarification: when a pension includes service before marriage, that premarital component cannot simply be ignored.
The result is a more complete analysis. The pension itself, its value, the timing of the employee’s service, the method used to divide future payments, and the rest of the marital estate may all affect the ultimate property division.
For anyone facing a divorce involving a significant pension, understanding those issues early can make it easier to evaluate settlement proposals and make informed decisions about long-term financial security.
About the Author: Damian Turco is the Founder and Managing Partner of Turco Legal and has practiced divorce and family law since 2008.
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