Dividing Retirement AssetsThe following questions and answers about dividing retirement assets can help you understand how such plans are divided and what needs to be taken into consideration.
Is he allowed to use my retirement information in court? Agraciada's Question: My ex-husband illegally obtained my military retirement record printout which has my social security number, DOB, earnings, and used it in court as evidence for more money. Shouldn't my lawyer have done something about this? Brette's Answer: You would need to provide that information to the court anyhow. Elaine's Question: My husband and I have been married almost 33 years. We are retired and live on his pension as I am too young for Social Security. If we divorce, do I have any right to part of his pension? Without that, I'd have no income for a minimum of 6 years. Brette's Answer: When you divorce, you are entitled to be supported by your spouse, which includes taking a percentage of his pension. You are also entitled to a portion of the assets of the marriage, as well as part of your spouse's future Social Security income. You should see an attorney to discuss the details of your situation. » Return to top Topic: Divorce and 401K Division Nikki's Question: I live in an equitable distribution state. My husband worked little over the years by choice, had a provable open affair and has been in trouble with the law for substance abuse problems (he is currently on probation). Is my husband entitled to 50% of my 401(k) when divorcing. Brette's Answer: Equitable distribution means assets and debts will be distributed in a way that is fair, not necessarily 50/50. Whether your spouse is entitled to part of your 401k, or to any assets, will be dependent on the big picture. The fact that he had an affair is probably not relevant, unless your state allows that to be considered in property distribution. Each party's financial situation is relevant. Talk to your attorney. » Return to top Topic: Divorce and Pension Plan Division Karen's Question: As a teacher, I have a state pension retirement account presently valued at $40,000+. Does my husband (ex) get 1/2 of the cash value or present value of my pension fund? Brette's Answer: You need to speak to an attorney in your state. There are a variety of factors that will influence the division of a pension, including when you accrued it, your state's theory of property division, your other marital assets, and how your settlement is framed. » Return to top Should we split the retirement now or wait till the value rises? JoAnne's Question: I'm currently in negotiations of a divorce. We both want an uncontested divorce; however, when it comes to me getting my soon to be ex husband's 401k, he wants to wait until the market value rises and then split the money 2-5 years from now instead of giving me the money now. What do you think of that? Brette's Answer: I think that half today equals half in 5 years plus interest. He's getting the same amount either way. It's easier to do it all now than have to try to resolve unfinished things in 5 years when you've both moved on. You should consult with an attorney about what would be the best thing for you to do. Good luck. Who handles the division of a retirement plan? Joanie's Question: I am supposed to be getting a certain amount of my husband's 401K and retirement fund. When I ask my lawyer, she says she doesn't handle this, my husband does. Is this true? Brette's Answer: The plan administrator has to do it and your husband has to get the paperwork going. However, your attorney should follow up with his about it. » Return to top What happens after the court awards me part of his retirement? Emmy's Question: My ex was court ordered to pay me half of his 401K. How long is this process? It will be 8 months and not a word from anyone. Brette's Answer: You've got to submit a QDRO (qualified domestics relations order) which then gets submitted to the 401k administrator. How do I get QDRO papers?
QdroDesk - is an online service providing divorcing spouses with an instant, easy, accurate, and affordable method for obtaining Qualified Domestic Relations Orders (QDROs), the appropriate settlement agreement language, and processing instructions to divide a retirement account upon divorce. Combining 45 years of expertise with a smart question and answer technology, QdroDesk has easily become the ideal solution for QDRO preparation. Cinthya's Question: The Judge granted me with half of my husband's 401k. I have contacted the 401k representative and the lady asked me for the QDRO copies. I have gone through my papers and can't find it. Where I need to get those papers? Brette's Answer: A QDRO is a document that must be prepared by an attorney because it is very complicated. Some companies may be willing to assist you in preparing it, but in general they don't feel it is their responsibility. What if he refuses to sign the QDRO after the divorce is finalized? Ceceila's Question: My divorce was final 2 months ago and during mediation we both agreed that I would receive half of his 401k. He has since decided he does not agree with this and has refused to sign the QDRO. Can he do this? Brette's Answer: If your settlement is signed and accepted by the court and incorporated into your order, then no he can't. You have to file papers for a violation of the order. Topic: Divorce and Pension Plan Pay Out Cecilia's Question: In my divorce settlement, I am entitled to 1/2 of a pension provided by vesting in the place my husband works for. How do I collect it. Brette's Answer: To get your pension pay out you have to talk to the plan administrator. » Return to top What can I do if the pension payout is less than the divorce stated? Awilda's Question: My original lawyer retired and his son took over the firm. He continued to finalize my QDRO's by drafting them and finally getting approval from the company. My ex retired last May and now that the amount that I had been receiving of $540 has been reduced to $308. I have contacted the attorney who drafted the QDRO's, and he insists on having to charge me again because his father never paid him to finalize the documents. What can be done other than have this attorney investigated. My ex signed a paper stating that he would pay me $540 per month and the attorney has that paper. What recourse do I have? Brette's Answer: You need to pull out all documentation you have from this law office - retainer agreement and invoices. This should indicate if you paid for this work or not. If you have paid for it, you need to contact your state bar attorney grievance program and file a grievance. They will investigate. You also need to understand exactly what the QDRO paperwork says. With the fall of the stock market, there is likely less in that account. Topic: 401K and Divorce Distribution Gina's Question: If I want part of my ex-husbands 401 K, do I have to wait until he retires to get it? Brette's Answer: No, if you are awarded part of your spouse's 401K, your part is removed upon issuance of the judgment or order. However, in order to get this money, you need an attorney to prepare a QDRO - qualified domestic relations order, which must be written to meet the specific 401k plan requirements. When you get the money, you roll it over into an IRA for your own retirement purposes. » Return to top How can I get a court release to access his retirement information? Rose's Question: We are in the process of divorce and are still trying to settle. I just found out my soon-to-be ex cashed in half of his 401K/rollover IRA in April of this year. What can I do to stop anymore $ from disappearing? I called the fund company and they wont give me copies of statements unless the court orders them to. I get legal advice through the self help dept of the courts. Brette's Answer: Ask the self-help dept to help you prepare a subpoena the court will sign which will allow you to get the documents. You'll need to show the court what he withdrew and when and he'll be held accountable for it. He never gave me a release to speak to the plan administrator. Catherine's Question: I was divorced 12 years ago. The decree states that I am entitled to a portion of his retirement based upon the time we were married. He was supposed to give me a release to speak with a plan administrator, but has not to date. He is taking funds out of the account now, and I am wondering what my options are. Brette's Answer: Get an attorney and go back to court because he has violated the order. » Return to top Can I liquidate my part of his pension to buy out his home equity? Teresa's Question: Can I be awarded husband's 401k and use it as liquid assets immediately? I will need the money to pay him equity in the house. Brette's Answer: If you liquidate it you'll pay a penalty and taxes. Why aren't you asking to set off the fund against the equity instead? Can he buy back the portion of his pension that was awarded to me? Question: My ex wants to buy back the pension that was awarded to me. How can we do this? Brette's Answer: You need to be careful about this and consult an attorney. The best plan is probably to modify the decree to reflect this. » Return to top Will giving retirement funds to my child prevent my husband from getting them in the divorce? Kim's Question: My husband and I are in the process of uncontested divorce, but now he has stated that he wants 1/2 of my 401k. Can I take money from my 401k and give it to my daughter as a gift to avoid my husband getting the funds? Brette's Answer: First of all, if you disagree about your 401k, your divorce is not uncontested, unless you have filed papers and he has either not responded or has filed paperwork stating he is not contesting it. If that is the case, he has no say over the division of the assets since he has waived his right to participate. If you are in a situation where that has not happened and you agree about everything but this one situation, that's different. No, you cannot take money out and give it to your daughter. The money is a marital asset and must be divided in the divorce. Good luck. Can I stop him from taking cash out of his pension? Faye's Question: My husband and I are separating. I have found out that he is taking a cash out on his pension plan. The spouse has to give consent. Am I entitled to half of the pension money? Brette's Answer: To stop this, you need to open a divorce or separation proceeding and ask for an order estopping him from dissipating marital assets. You have an interest in his pension since it is a marital asset. How it will be divided will be decided by the court as part of your overall financial order. » Return to top What happens if he cashed out his retirement after I filed for divorce? Debbie's Question: My soon to be ex has dissipated marital assets by selling shares from his 401 K after I filed divorce papers . He basically sold almost everything that was in it .I informed my attorney about it, as she knows what was in the account when I filed divorce papers and knows what is in it now. Can he be held responsible and will I still get my fair share since we know he did it and have all the dates of when he did it? Brette's Answer: Yes it will be taken into account and you won't lose out because of it. Can I sue for retirement division after the divorce is finalized? Judy's Question: Is it possible to sue for any retirement accounts after the divorce has been finalized 5 years ago? Brette's Answer: It is possible, but to change the terms of the financial settlement you either need to show that there wasn't proper disclosure at the time of the judgment, or that there has been a change in circumstances. You should pull out your divorce decree or settlement and read it and possibly consult an attorney who can interpret it. This should have been handled at the time of the divorce, and most likely was. If not, it is something that could be revisited. You should talk to an attorney who can discuss the particulars of your situation in light of your state's specific laws and requirements. » Return to top Can a divorce be appealed to remove the retirement clause? Martha's Question: My husband and his ex were divorced about 9 years ago, and she received 1/2 of his retirement in the uncontested divorce. Can he reopen the file after this amount of time? His retirement is coming up and we feel he has been ripped off. Brette's Answer: You don't get to go back and have a case redone just because you think it didn't turn out the way you wanted. He could have appealed at the time, but the opportunity for that is long past. » Return to top
Related Articles: Brette Sember is a former family and
matrimonial attorney and mediator, nationally recognized expert, and author of
many books including
The Divorce Organizer & Planner,
No-Fight Divorce, and
How To Parent With Your Ex.
This column provides general information about the various aspects of divorce. It is not intended to take the place of legal counsel and should not be considered personal legal advice. For specific recommendations concerning your situation, please retain experienced legal counsel. WomansDivorce.com and Brette Sember disclaim any liability from any claim arising from any information contained in this column. This column is not a substitute for legal advice. Divorce
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