Tag Archive for: retirement plans

How to Divide Your Retirement Plan

Retirement plans are often one of the significant assets up for distribution in the course of a divorce. Careful attention should be given to the type of retirement plan at issue to avoid tax penalties and/or early withdrawal penalties to the extent possible. Additionally, the type of retirement plan will dictate what will be necessary in terms of documentation or court orders to effectuate the rollover. Non-qualified plans include individual retirement accounts or IRAs. These can usually be rolled over by completion of a form with the applicable institution. You should still do a direct rollover to a similar account to avoid taxes and/or withdrawal fees.

Qualified plans include defined contribution plans such as 401Ks as well as defined benefit plans such as pensions. A Qualified Domestic Relations Order (QDRO) will be necessary to distribute a qualified plan. A QDRO is a document that identifies the plan to be divided and gives specific details as to how that division will take place and what rights the party receiving the funds, referred to as the alternate payee, will have going forward. Rights of the alternate payee may include receiving cost of living adjustments similar to the plan participant and being able to elect their own survivor beneficiary for their interest in the plan. Both qualified and non-qualified plans will be taxable as distributed. The QDRO effectuates a tax-free rollover of funds to the spouse being awarded a share of the retirement plan in divorce but the spouse will be taxed on it when they withdraw it.

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Dividing Retirement Accounts in a Divorce

If you are getting divorced, you may have accumulated retirement plans during your divorce. Sometimes clients are surprised when they learn that the retirement plan that they have earned in their own name is subject to equitable distribution. Not only can your current spouse be ordered to be named your beneficiary in the event of your death, but they actually will be awarded a percentage of the benefits at the time of the divorce. It is important from the outset to obtain the plan documents from your plan administrator so that you know what options you have in the event of retirement on the selection of a survivor beneficiary as well as so you know under what terms a spouse can receive a distribution. In addition, just because your court order or agreement awards your spouse a percentage of your benefits, does not mean this is automatically going to be tax free. You must also have the order drafted in the form of a Qualified Domestic Relations Order. Most plan administrators have sample language that they will approve and it is a good idea to ask your plan administrator if they have sample language. You must always have your plan administrator approve the QDRO that is prepared before you send it to the Court to have the Judge enter it as an order.

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Retirement Plan Distributions in Divorce

Retirement plans are often one of the significant assets up for distribution in the course of a divorce. Careful attention should be given to the type of retirement plan at issue to avoid tax penalties and/or early withdrawal penalties to the extent possible. First, retirement plans must be distinguished between qualified plans and non-qualified plans. Qualified plans include defined contribution plans such as 401Ks as well as defined benefit plans such as pensions. A Qualified Domestic Relations Order (QDRO) will be necessary to distribute a qualified plan. Non-qualified plans include individual retirement accounts or IRAs. A QDRO is not needed to distribute these plans.

Both qualified and non-qualified plans will be taxable as distributed. The QDRO effectuates a tax-free rollover of funds to the spouse being awarded a share of the retirement plan in divorce but the spouse will be taxed on it when they withdraw it. Distributions outside of a QDRO may also be subject to an early withdrawal fee. Typically, a 10% early withdrawal penalty applies to distributions before the plan participant is 59 ½ years old. There are a few ways to avoid the early withdrawal penalty including a loan from the retirement plan, disability of the plan participant, and scheduled equal payments. Additional exceptions for IRA plans include higher education expenses and for first-time home buyers.

Click here to read more on distribution of retirement accounts.

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