Am I entitled to a portion of my ex-spouse's retirement or savings?
Please note that these answers are not legal advice. If you’re in need of legal advice or a lawyer please visit our Expert Guide
Yes, you may be entitled to a portion of your ex-spouse's retirement accounts and savings, depending on your state laws and the length of your marriage. Here’s what you need to know:
Marital vs. Separate Property
Marital Property: In most states, any retirement savings or investments accumulated during the marriage are considered marital property, regardless of whose name is on the account.
Separate Property: Contributions made before the marriage are generally considered separate property, but the growth and interest during the marriage may be subject to division.
Types of Retirement Accounts That May Be Divided
401(k) Plans
Pension Plans
IRA Accounts (Traditional and Roth)
Military and Government Pensions
Deferred Compensation Plans
How Are They Divided?
The method of division depends on your state:
Equitable Distribution States (Majority of States): Assets are divided fairly, but not always 50/50. The court considers factors like income, age, health, and contribution to the marriage.
Community Property States (e.g., California, Texas): Assets are split 50/50 if acquired during the marriage.
The Role of a QDRO (Qualified Domestic Relations Order)
For 401(k)s, pensions, and some other retirement plans, you’ll need a Qualified Domestic Relations Order (QDRO):
A QDRO is a legal document that allows a portion of the retirement account to be transferred to you without triggering early withdrawal penalties.
This document is prepared during divorce proceedings and is submitted to the plan administrator for processing.
It ensures you get your share without tax penalties.
IRAs Work Differently
For IRAs, you don’t need a QDRO.
Instead, the divorce decree is enough to move funds to your account.
If handled correctly (as a transfer incident to divorce), there are no penalties or taxes at the time of transfer.
What About Other Savings Accounts?
Joint Savings and Checking Accounts: Typically split according to your divorce agreement or state law.
Investment Accounts: Divided based on marital vs. separate contributions.
College Savings (529 Plans): These are usually handled separately with the child’s needs prioritized.
Example Scenario:
If your spouse contributed $50,000 to their 401(k) during your 10-year marriage, you may be entitled to half of that amount or an equitable portion, depending on your state. If you’re awarded $25,000, a QDRO would allow that to be transferred to your retirement account without penalty.
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