Before ‘I Do’: What Happens to Premarital Pension Contributions in Divorce?~3 min read

In divorce, the Court is required to divide the parties’ marital property equitably. The law defines marital property as all property from any source whether titled to one party individually or to the parties jointly, no matter where the asset came from. RSA 458:16-a, I. For many years, the law with regard to pension plans was applied differently than the law with regard to other assets, and even other retirement plans. This difference was based on the Hodgins case, decided by the New Hampshire Supreme Court in 1985. Hodgins v. Hodgins, 126 N.H. 711 (1985). Before the  Hodgins case, Courts had struggled with dividing pension plans because they are difficult to value. Generally, the retiree’s benefit from a pension plan is based on a formula that considers the earnings of the employee and the years of service with the company, some of which may be after the divorce. In the Hodgins case, the Supreme Court was tasked with determining a method to equitably divide a pension benefit, considering the fact that the spouse’s pension benefit would continue to grow as a result of credits earned after the divorce. To do so, the Supreme Court created a formula to divide the portion of the pension benefit that accrued during the marriage, and not after the marriage ended.

Although the husband in the Hodgins case did not have a premarital interest in his pension plan, the Supreme Court stated in the decision that the divorce decree “must take account of the fact that only those pension benefits which are attributable to the retiree’s employment during the marriage are subject to distribution.” Hodgins at 716. Until recently, this has been interpreted by the courts to mean that the retiree’s premarital interest in the pension plan (i.e. the interest earned before marriage) was excluded. As such, the Courts awarded the retiree spouse 100% of the interest in the pension that was earned prior to marriage, without giving the other spouse any other assets in exchange.

In May of 2025, the New Hampshire Supreme Court issued a decision In the Matter of Clayton LeGault, Jr. and Lisa LeGault which fundamentally changed that interpretation. In reliance on New Hampshire RSA 458:16-a, I, which states clearly that all assets are marital assets, and it does not matter whether they were earned before marriage, the Supreme Court clarified in LeGault that the Hodgins case is still the default rule for cases where no portion of the pension was earned before marriage. However, when a portion of the pension was earned prior to marriage, the Supreme Court concluded that the premarital portion must be included as an asset in the marital estate. Consistent with RSA 458:16-a, it will be up to the Court’s discretion to determine how to equitably divide the pension, including the premarital portion. While it is still possible for the trial Court to find that it is equitable to award the premarital portion to the retiree spouse, the Court is required to explain why that award is deemed equitable. Based on the LeGault case, it is expected that there will be very few cases in which the Court awards the entire premarital share of a pension plan to one spouse without giving the other spouse an award of other assets in exchange.

If you have questions about how the Court will divide a pension plan in your divorce, talk to the family law attorneys at Parnell, Michels & McKay. We can help you to understand the method that will likely be used to divide the pension, and the options to consider to divide or offset the premarital portion.