Are Pensions Marital Property?
If you’re going through a divorce in New Hampshire, and either you or your spouse has a pension, you’re probably wondering: how is that going to be divided?
It’s a good question—and one that doesn’t always have a simple answer. A recent decision from the New Hampshire Supreme Court just made that answer a little clearer, though. The case, In the Matter of Clayton LeGault, Jr. and Lisa LeGault, deals with a question we see all the time: what happens when part of a pension was earned before the marriage?
Shout Out to Our Colleagues
Before diving into the details, we want to acknowledge the hard work of the lawyers who represented both litigants in this case—attorneys from two longstanding and reputable New Hampshire law firms: Shaheen & Gordon (represented by Tracey G. Cote and Stephanie K. Annunziata) and Wells, White & Fontaine (represented by Israel F. Piedra). Although they are formally competitors, New Hampshire is fortunate to have a collegial and cooperative bar association. Many people do not realize the tremendous amount of work that goes into briefing a case before an appellate court, or how vital effective advocacy is in helping courts refine and improve the law through their opinions.
A Common Situation in Divorce
In this case, the husband had been paying into his state pension for six years before he got married. That’s not unusual. Many people start working and building retirement benefits long before they tie the knot.
When the couple divorced, the wife agreed that only the marital portion of the pension—the part earned during the marriage—should be divided. She did not dispute using the standard formula from an older case called Hodgins v. Hodgins to calculate her share.
So far, so good.
But she also asked the court to at least consider the value of the pre-marital portion—not to divide it directly, but to use it as part of a broader balancing act. For example, she wasn’t saying, “Give me a piece of that part,” but rather, “Can we factor it into the overall division, maybe as an offset elsewhere, like cash or other assets?”
What the Trial Court Did
The trial judge followed the Hodgins formula to divide the marital portion of the pension. Then, it gave the pre-marital portion entirely to the husband, reasoning that there wasn’t any legal precedent that said otherwise.
That decision raised a red flag.
What the Supreme Court Said
The New Hampshire Supreme Court took a closer look. It didn’t throw out the Hodgins decision—but it did clarify its limits.
Here’s the key takeaway: New Hampshire law has evolved since Hodgins. A statute called RSA 458:16-a now says that all property, including what you owned before the marriage, is subject to equitable division in a divorce. That includes pensions earned before the wedding.
The Court made a few important points:
Hodgins is still a valid way to divide pensions earned during a marriage.
BUT Hodgins never addressed what to do when part of a pension was earned before the marriage.
RSA 458:16-a gives courts the discretion to consider all property—pre-marital or not.
So a judge can’t just ignore the pre-marital portion. Even if it ultimately goes to one spouse, it has to be considered in the overall division of assets.
Because it wasn’t clear whether the trial court fully understood that it had that discretion, the Supreme Court sent the case back for further review.
Why This Case Matters
This might seem like a technical legal issue, but it matters—especially in long marriages or when one spouse enters the marriage with significant assets, including credit toward a future defined benefit pension. Many employees, particularly younger ones, tend to discount the value of their pension because the ultimate payout feels distant and uncertain. In reality, a pension can be converted into a present value using standard methods, and this value is often much greater than either the employee or their spouse realizes.
Let’s say your spouse had a pension from a government job and started earning it years before you got married. That pre-marital portion might still be theirs in the end—but under this new clarification, the court at least has to consider it. It’s no longer off-limits.
This change gives judges more flexibility to reach fair outcomes. For example, if one spouse sacrificed career growth to support the other’s pension-earning job, it might make sense to consider that full picture. Or if the couple relied on the pension for financial decisions, that’s relevant too.
In other words, the court isn’t bound by a one-size-fits-all formula anymore. It can look at the whole story and adjust accordingly.
What This Means for You
If you’re facing a divorce and either you or your spouse has a pension—especially one that started before the marriage—this case should be on your radar.
Here’s what to keep in mind:
Don’t assume pre-marital assets are off the table. Courts can consider them now.
Pension division is complex. It’s not just about slicing a number in half—it’s about understanding how much was earned when, how it’s valued, and how it fits into the full financial picture.
The law is flexible. That can work in your favor, but it also means you need an experienced attorney who knows how to present your side effectively.
At Cohen and Winters, we help clients across New Hampshire navigate the divorce process with clarity and confidence. We know how to handle retirement accounts, pensions, and the tricky questions that come with them. If you have questions about how your assets might be divided—or if you just need someone to help you see the road ahead—give us a call.