By: Marc A. Rapaport, Divorce Attorney
October 31, 2019
Retirement funds added by either spouse during your marriage are presumptively considered marital property, which is valued and divided if you get divorced. If you or your spouse entered into your marriage with money already in your 401(k) or other retirement account, these pre-marital funds are considered pre-marital (i.e., separate) property. Usually, this pre-marital portion of a retirement account is not divided because it is considered separate property. In a divorce, only the marital portion of a 401(k) is split.
Because of the requirement of federal law, retirement accounts must be divided by using a QDRO form in order to avoid significant early withdrawal penalties. Many divorcing couples (and even some attorneys) mistakenly believe that getting a divorce judgment or entering into a marital settlement agreement is sufficient to divide a pension or 401(k). However, this is simply not true. Although it is critical that your divorce settlement agreement clearly set forth how retirement assets will be split and transferred, the agreement and divorce judgment are not sufficient.
The spouse or former spouse who is the holder of the retirement plan is typically referred to as the participant or member. The spouse for former spouse who receives an interest in the other spouse's or former spouse's retirement benefit is usually referred to as the "alternate payee."
If your divorce settlement states that you will divide a pension (otherwise known as a "defined benefit plan") or 401(k)/403(b) (otherwise known as "defined contribution plans"), a court must also sign an order known as a Qualified Domestic Relations Order (QDRO). Among other things, the QDRO will provide instructions to the plan administrator on how to pay the non-titled spouse his or her share of the plan benefits. With respect to the division of a 401K or 403(b) plan, splitting these funds is generally accomplished by depositing the funds into the non-titled spouse's qualified retirement account (401(k) or IRA. You can set up an IRA account specifically for this purpose. By transferring the funds to an IRA, you maintain the tax-deferral benefits that any other traditional IRA would have, and you are also subject to the same restrictions.
you do not have to set up a retirement account to receive your share of the titled-spouse's retirement funds through a QDRO. But unless you are in dire need of immediate cash, it is in your best interest to take advantage of the tax deferral benefits of transferring your share of the retirement funds to an IRA. Otherwise, you will be taxed on the distribution, even though you will not incur the 10% penalty that would ordinarily be imposed if the transfer were not incident to a divorce.
Once the non-titled spouse (recipient) receives the funds (i.e., the transfer is completed), they assume total responsibility for the tax consequences of any future transactions or distributions.
Based on our decades of QDRO experience, QDROPedia.com has developed forms that meet the specific legal requirements that QDRO forms must meet in order to be effective. This language is very specific. For example, a QDRO form for a 401(k) must set forth a specific "date of assignment" and (if the QDRO gives the alternate payee a percentage, as opposed to a specific dollar amount), the QDRO must state how gains and losses are to be applied to the alternate payee's share of the benefits for periods subsequent to the effective date of assignment until the date of distribution.
After you download and fill out your QDRO form, we recommend that customers present their proposed QDRO to the retirement plan for approval prior to submitting the proposed order to a judge for signature. This is not an absolute requirement. But it is recommended because if a plan rejects a QDRO that was already signed by a judge, the entire process must be repeated.
QDROPedia was founded by New York divorce attorney Marc A. Rapaport. Mr. Rapaport
has provided legal representation in divorce and family law matters since 1995. He founded QDROPedia with the goal of providing divorcing couples with a fast, affordable and convenient way to divide pensions, 401(k) accounts and other retirement assets in divorce. Our forms come with easy-to-follow instructions. QDROPedia's forms have been accepted by courts in every state. We are the largest provider of Qualified Domestic Relations Orders in the United States. Our do-it-yourself QDRO Forms
are available for every state. Questions? Give us a call: (212) 382-0060.