Retirement Plans & Divorce
By Maury D. Beaulier, Esq.
Deferred compensation refers to pension plans,
401K plans, IRAs and other retirement assets. Such plans are divisible as part
of a property settlement in divorce regardless of which party is named on the
plan. How they are divided depends on the value and nature of the asset. Perhaps
one of the worst scenarios in a divorce is when retirement assets are
transferred to a former spouse but the original owner is liable for liable for
the taxes, including penalties for early withdrawal.
Retirement Assets:There are three main kinds of deferred compensation
- There are "Savings plans", such as
IRAs, 401(k) Plans, ESOPs, Thrift Savings Plans.
- There are also "defined contribution"
plans. A defined contribution plan is one in which the value of the plan is
determined in part by the amount of contributions made into the plan. The
money contributed may be invested and grow.
- There are also "defined benefit"
plans. With a defined benefit plan, an employee is provided a monthly
payment starting at retirement age and ending at the end of his/her
Savings Plans: Savings plans such as an IRA are considered
"cash" plans since they may be liquidated before retirement age. They are
divisible as part of a divorce. However, before any division may occur, a
custodian of the account must receive and review a certified copy of the court
order dividing the plan. Additionally, the spouse receiving a portion of the
plan must fill out documents relating to the manner of payout. IRA proceeds may
be cashed out and paid directly to the receiving spouse or they
may be "rolled" over into a new IRA in the name of the receiving
spouse. However, the tax consequences related to cashing out the plan may reduce
the plan proceeds by more than thirty percent (30%) for taxes and early
Valuing and Dividing Defined Contribution
Plans. The valuation of a defined contribution plan can be determined by
multiplying the account balance by the percentage of vesting. This is a
relatively simple way to value the plan and determine marital value. Generally,
such plans may be divided currently with each party receiving one half of the
current vested value.
Valuing and Dividing Defined Benefit Plans.
With a Defined Benefit Plan, generally the participant's benefits cannot be
liquidated prior to retirement age and the non-participant spouse may receive a
retirement plan in her name representing her marital interest in the
participant's plan. This plan is generally subject to the same terms and
conditions of the original plan. Often, the Participant may choose a payment
method from several options. The chosen method will affect the amount or timing
of the payments to both the participant and any receiving spouse. This may mean
that retirement benefits are received when the original participant decides to
retire, not when the recipient spouse retires.
A defined Benefit plan may be divided in one of
- Cashing Out/Present Value Calculation.
First, a recipient spouse may elect to receive money effectively cashing out
his/her interest in the plan. To cash out, a present value of the plan
proceeds must be determine. "Present Value" is the current value of a
future benefit. In simple terms, a dollar that you receive today is more
valuable than a dollar you receive next week since you may invest the dollar
or deposit the dollar and accrue interest. Therefore, retirement benefits
that are received at retirement age would have a lower value if paid in a
lump sum currently. Often, a calculation or of present value requires an
actuary or accountant.
- Division of Future Benefit.
Rather than using a present-day cash value, a defined benefit plan may be
divided by dividing the future stream of income. This is accomplished by
drafting a Qualified Domestic Relations Order (QDRO). This is a court order
which instructs a pension plan to pay an Alternate Payee (or former spouse)
a portion of retirement benefits accrued by a Participant due to an
equitable distribution agreement in a divorce. With this method, the court
retains jurisdiction until the benefits are paid.
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